Amicus Curiae Brief — United States v. Chesapeake & Potomac Telephone Co.

Supreme Court brief1995

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ...........0000005: l

INTRODUCTION AND SUMMARY OF ARGUMENT ... |

ST cneeeeebeesebeevageseceseverccoes a

I. AS A BAN ON SPEECH ALONE, SECTION 533(b)

TRIGGERS STRICT SCRUTINY REGARDLESS OF

WHETHER IT IS CONTENT-BASED ............ 4

Il. SECTION 533(b) IS INDEPENDENTLY SUBJECT

TO STRICT SCRUTINY AS A CONTENT-BASED

RESTRICTION ON SPEECH .............+-.. 10

A. The Statutory Definition of “Video

Programming” Is Content-Based ............. 10

B. Neither Congress’ Motives Nor Post Hoc

Justifications Can Alter the Conclusion

That Strict Scrutiny Applies ................ 15

Ill. SECTION 533(b) IS INVALID BECAUSE

IT VESTS AN ADMINISTRATIVE

AGENCY WITH IMPERMISSIBLE

DISCRETION OVER SPEECH ................ 21

IV. SECTION 533(b) TRIGGERS STRICT SCRUTINY

FOR THE FURTHER REASON THAT IT

SINGLES OUT TELEPHONE COMPANIES

FOR A SPECIAL BAN ON SPEECH ............ 23

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TABLE OF AUTHORITIES

Cases Page

Amalgamated Food Employees Union Local 590

v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)... .. 6

American Radio Ass'n v. Mobile Steamship Ass'n,

Eh he eek ees acescccccss 6

Arkansas Writers’ Project, Inc. v. Ragland,

ie wie enw ee cece cece 14

Austin v. Michigan Chamber of Commerce,

eke Geb os beeccececc 17, 23

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ....... 6

BellSouth Corp. v. United States, 868 F. Supp. 1335

(N.D. Ala. 1994), appeal pending, No. 94-7036

EE SSSI IIE CTT l

Boos v. Barry, 485 U.S. 312 (1988)... 2. 6 6. ees 17

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ....... 2,5

Burson v. Freeman, 504 U.S. 191 (1992) ........ 11, 14-16

Cameron v. Johnson, 390 U.S. 611 (1968) ............ 7

City of Cincinnati v. Discovery Network, Inc.,

ED o.ccccececec 3, 10, 14, 16, 21

City of Ladue v. Gilleo, 114 §. Ct. 2038 (1994) ... 2,5, 9, 20

City of Lakewood v. Plain Dealer Pub. Co..,

i Eee cess oe eee ce cc 7, 8, 21

City of Renton v. Playtime Theatres, Inc.,

ES ee 16-18

Clark v. Community for Creative Non- Violence,

kite cee gece c ccc c 6

Cohen v. California, 403 U.S.15 (1971) ........... 7

Comark Cable Fund Ili, 100 F.C.C. 2d 1244 (1985) ...... 23

Consolidated Edison Co. of New York v.

Public Service Comm'n, 447 U.S. 530 (1980) ....... 17

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 19

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .... 19

FCC v. League of Women Voters,

ee 10, 14-16

First National Bank of Boston v. Bellotti,

SN 23

Cases (continued) Page

Forsyth County v. Nationalist Movement,

RODD, Gh, SNOT gc ccccccccccccccccs 3, 21

Frisby v. Schultz, 487 U.S. 474 (1988) ........-..... 7,9

Grayned v. City of Rockford, 408 U.S. 104 (1972 _ ..... 9

Greer v. Spock, 424 U.S. 828 (1976) ...... 0.000000. 7

Grosjean v. American Press Co., 297 U.S. 233 (1936) . . . 24-25

Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981) ............. 9

Interstate Circuit v. Dallas, 390 U.S. 676, 683-85 (1968) . . . 21

Jacobellis v. Ohio, 378 U.S. 184 (1964) .............. 22

Kovacs v. Cooper, 336 U. S. 77 (1949) ...........55. 7

Leathers v. Medlock, 499 U.S. 439 (1991) ......... 24, 25

Los Angeles v. Preferred Communications, Inc.,

Ge a a EY Ua don down dwecccccécnce 4

Lovell v. City of Griffin, 303 U.S. 444 (1938) ........ 8, 21

Madison School District v. Wisconsin Employment

Relations Comm'n, 429 U.S. 167 (1976) ........... 24

Martin v. Struthers, 319 U.S. 141 (1943) ............ 2,5

Mcintyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995) . 14

Members of the City Council of the City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984) ....... 7-9

Meyer v. Grant, 486 U.S. 414 (1988) ............. 2, 6,9

Minneapolis Star & Tribune v. Minnesota Comm'r

of Revenue, 460 U.S. 575 (1983) .......... 4, 20, 24

NCTA v. FCC, 33 F.3d 66 (D.C. Cir. 1994) ........... 24

Northwestern Indiana Telephone Co. v. FCC, 824 F.2d 1205

(D.C. Cir.), appeal after remand, 872 F.2d 465

(D.C. Cir. 1987), cert. denied, 493 U.S. 1035 (1990) . . 23

Pacific Gas & Elec. Co. v. Public Utilities Comm'n

of California, 475 U.S. 1 (1986) ............. 17, 20

Perry Education Ass'n, 460 U.S. at 55 ..........0..2.4.. 23

Philadelphia Newspapers, Inc. v. Hepps,

GPs EE coc ctbnbdachasccdcocecs 23

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) . 15, 24

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434

(D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986) . . 17

Cases (continued) Page

Ragland, 481 U.S. at 229-30 ... 0... eee eee eee 15

R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) ....... 18

Regan v. Time, Inc., 468 U.S. 641 (1984)... .......4.. 15

Riley v. Nat'l Federation of Blind, Inc..,

Gey EEE ceebcdeocecosccesceces 6, 17

Schad v. Borough of Mount Ephraim,

ST pntcuneagececceseces 2, 5, 19

Schneider v. State, 308 U. S. 147 (1939) ..........-. 2,5

Simon & Schuster v. New York Crime Victims Bd. ,

Se Gs SEP GED cc ccccevecoces 5, 17, 18, 20, 23

Staub v. City of Baxley, 355 U.S. 313, 322 (1958) ....... 21

Turner Broadcasting Sys. v. FCC,

114 S. Ct. 2445 (1994) .......... 2, 4, 10, 11, 17, 25

United States v. O'Brien, 391 U.S. 367 (1968) ........ 6, 20

United States v. Grace, 461 U.S. 171 (1983) ........... 5

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .. 7,9, 18

Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976) . 19

Federal Statutes & Regulations

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GI ED ccc cccccccccevesceueceess 13

GP I cc We ceccsesescccesersceen 3, 11

GPU coca sceccceccvcecesoeues passim

PRED GS Sebi bc ccc cei eeccecectevecese 2

Administrative Decisions

Second Report on CATV Systems, 2 FCC 2d 725 (1966) ... . 12

Video Dialtone Order, 7 FCC Red 5781 (1992) .... 12-14, 22

Miscellaneous

H.R. Rep. No. 934, 98th Cong., 2d Sess. 31 (1984) ...... 20

an}

INTEREST OF AMICUS CURIAE

With the consent of the parties,’ amicus curiae BellSouth

Corporation hereby submits this brief in support of respondents.

BellSouth provides over 20 million telephone access lines in nine

States. Like other telephone companies, BellSouth is subject to the

ban on the provision of video programming contained in 47

U.S.C. § 533(b). In fact, BellSouth has successfully challenged

§ 533(b) on First Amendment grounds, and a federal court has

BellSouth. See BellSouth Corp. v. United States, 868 F. Supp.

1335 (N.D. Ala. 1994), appeal pending, No. 94-7036 (1 1th Cir.).

INTRODUCTION AND SUMMARY OF ARGUMENT

This case presents the question of the constitutionality under

the First Amendment of 47 U.S.C. § 533(b), which prohibits

telephone companies from providing video programming to their

local subscribers. The District Court and Court of Appeals in this

case, like every other federal court to have considered the issue.

invalidated the statute under the First Amendment. In the decision

under review, the Fourth Circuit held that § 533(b) could not

survive intermediate scrutiny, which petitioners contend is the

form of heightened review, § 533(b) is in fact subject to strict

scrutiny, for several independent reasons. This Court should

invalidate § 533(b) under the more exacting test, leaving

intermediate scrutiny to be applied in the limited settings for which

it was designed.

I. As a direct ban on speech alone, § 533(b) triggers strict

scrutiny regardless of whether it is content-based. The statute is,

in the words of the Federal Communications Commission, “a

complete ban on editorial control [by a telephone company] over

" Letters reflecting writen consent of the parties to the submission of this

brief have been filed with the Clerk of the Court.

video programming in [its] service area.” Supp. Br. App. 4a.”

Section 533(b) is analytically indistinct from a law prohibiting the

owners of newspapers or magazines from exercising editorial

control over any of the material carried in the pages of their

publications. In fact, § 533(b) targets only the acts of editorial

discretion that give cable television operators First Amendment

protection in the first place. See Turner Broadcasting Sys. v

FCC, 114 S. Ct. 2445, 2456 (1994).

The First Amendment provides that “Congress shall make no

. . . abridging the freedom of speech, or of the press”; it does

not refer only to restrictions “on the basis of content.” No law

runs more directly afoul of the constitutional proscription than a

flat ban on a particular type of speech, and such laws have long

been subject to exacting judicial scrutiny, whether or not they are

content-based. See, e.g., City of Ladue v. Gilleo, 114 §. Ct.

2038, 2044-47 (1994); Buckley v. Valeo, 424 U.S. 1, 44-45

(1976) (per curiam); Martin v. Struthers, 319 U.S. 141, 145-49

(1943); Schneider v. State, 308 U. S. 147, 164-165 (1939).

Indeed, this Court has made clear that even limitations on the

quantity of a particular type of speech trigger First Amendment

strict scrutiny. E.g., Meyer v. Grant, 486 U.S. 414, 419, 420,

424 (1988); Buckley, 424 U.S. at 15, 16, 17, 39, 44.

Section 533(b) prohibits telephone companies from engaging

in an important and distinct type of expression. Accordingly,

contrary to the claims of petitioners, the ban cannot properly be

characterized as a “time, place, or manner” rule. City of Ladue,

114 S. Ct. at 2045; Schad v. Borough of Mount Ephraim, 452

U.S. 61, 75-76 (1981); Martin v. Struthers, 319 U.S. at 145-49.

Time, place, or manner rules regulate the noncommunicative

aspects of a speaker's activity, such as its loudness, in order to

? References to Federal Communications Commission's Third Report

and Order, PCC 95-203 (May 16, 1995) are styled “Supp. Br. App. _a.”

References to the decisions of the District Court and Court of Appeals, as

reprinted in the Appendix to the Government's Petition for Certiorari in No.

94-1893, are styled as “Pet. App. _—a.”

the communication and the primary activity occurring in the area

in which the speaker wishes to speak. They may not, consistent

with the First Amendment, ban a speaker from reaching his or her

chosen audience. They may not single out particular speakers.

Section 533(b) fulfills none of these requirements.

II. Section 533(b) also triggers strict scrutiny for the

independent reason that it is indeed content-based. It prohibits

telephone companies from offering only that “programming

provided by, or generally considered comparable to programming

provided by, a television broadcast station.” 47 U.S.C.

§ 522(19). Section 533(b)’s prohibition depends on the expressive

content of the image transmitted. In this respect, § 533(b) is akin

to a law banning signs containing pictures “generally considered

comparable to” those included in nationally distributed

newspapers, but permitting signs containing text or other types of

pictures. Such a law would clearly be content-based and subject

to strict scrutiny.

Indeed, the District Court in this case observed that the statute

is indistinguishable, in constitutional terms, from a scheme that

compiled an exhaustive list of television shows from the 1984

editions of TV Guide and then prohibited telephone companies

from providing those shows or any programming “generally

considered comparable to” them. Pet. App. 85a-86an.22. “[Bly

any commonsense understanding of the term, the ban in this case

is ‘content-based.’” City of Cincinnati v. Discovery Network,

Inc., 113 S. Ct. 1505, 1516-17 (1993).

Ill. The definition of “video programming” is also so vague

as to amount to a “know-it-when-we-see-it” standard which vests

the FCC with impermissibly broad discretion over speech. There

are no “‘narrow, objective, and definite’” standards, Forsyth

County v. Nationalist Movement, 112 S. Ct. 2395, 2401 (1992)

(citation omitted), to constrain the Commission’s determinations

of what is and is not “video programming.” Accordingly,

§ 533(b) is unconstitutional on its face.

IV. Finally, strict scrutiny is also warranted because § 533(b)

is a ban on the speech of only a select group of speakers within a

particular medium. Minneapolis Star & Tribune v. Minnesota

Comm'r of Revenue, 460 U.S. 575 (1983). This case does not

present the question of differential regulatory treatment of different

types of media, as in Turner Broadcasting, but rather

discriminatory treatment of certain speakers within a single

medium. ,

ARGUMENT

I. AS A BAN ON SPEECH ALONE, SECTION 533(b)

TRIGGERS STRICT SCRUTINY REGARDLESS OF

WHETHER IT IS CONTENT-BASED

1. Section 533(b) bans telephone companies from providing

their subscribers with video programming of the companies’ own

creation, editorial selection, or arrangement. This prohibition falls

entirely on speech, and on nothing else. Section 533(b) does not,

for example, prohibit telephone companies from transporting the

video speech of others; rather, it bans telephone companies from

providing video programming of their own. Nor does § 533(b)

prohibit telephone companies from constructing or owning cable

systems; instead, it bans them only from speaking on such

systems.

As the District Court observed, the target of the ban is the

“exercis[e of] editorial discretion” (Pet. App. 10la-102a) — the

very act of expression that this Court has held to be protected by

the First Amendment in its decisions involving cable television.

Turner Broadcasting, 114 S. Ct. at 2456; Los Angeles v. Preferred

Communications, Inc., 476 U. S. 488, 494 (1986).

With respect to that protected category of speech, § 533(b) is

a complete ban. As the FCC has explained, § 533(b) “prohibits

[telephone companies] from choosing the video programming to

be provided in their local exchange telephone service areas

altogether.” Supp. Br. App. 3a (emphasis in original). It is an

“absolute ban” on the direct provision of video programming, id.

at 4a, and “a complete ban on editorial control over video

programming in a telephone company’s service area.” Id.

Such “an absolute prohibition on a perticular type of

expression will be upheld only if narrowly drawn to accomplish a

compelling governmental interest.” United States v. Grace, 461

U.S. 171, 177 (1983) (emphasis added). This is true regardless

of whether the regulation at issue is content-based. E.g., Simon

& Schuster v. New York Crime Victims Bd., 502 U.S. 105, 126

(1991) (Kennedy, J., concurring in judgment).

Thus, this Court has invalidated “laws that foreclose an entire

medium of expression,” such as the display of signs on private

property, even when they are “completely free of content or

viewpoint discrimination.” City of Ladue v. Gilleo, 114 S. Ct.

2038, 2045 (1994). “The danger [such laws] pose to the freedom

of speech is readily apparent — by eliminating a common means

of speaking, such measures can suppress too much speech.” Jd.

This Court has also applied exacting scrutiny to strike down

content-neutral prohibitions on the distribution of literature, see

Martin v. Struthers, 319 U.S. 141, 145-49 (1943); Schneider v.

State, 308 U. S. 147, 164-165 (1939), and on live entertainment.

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 75-76 (1981).’

Indeed, even content-neutral limitations on the quantity of a

particular type of expression in which a speaker may engage —

restrictions that fall short of an outright ban — trigger strict

judicial scrutiny. In Buckley v. Valeo, 424 U.S. 1 (1976) (per

curiam), for example, this Court applied “exacting scrutiny” to

expenditure limitations that were “direct and substantial restraints

on the quantity” of speech itself, id. at 39, 44-45, even though

they were “neutral as to the ideas expressed.” /d. at 39.

> In each case the Court’s scrutiny was exacting. See, e.g., Martin, 318

U.S. at 146-49 (applying the tools of what since has become known as “strict

scrutiny”); Schad, 452 U.S. at 68 (citing strict scrutiny cases). In the most

recent case in this line, City of Ladue, 114 S. Ct. at 2044-46, this Court did

not articulate a standard of review, but made clear that the intermediate

scrutiny used for reasonable regulations of time, place, and manner is not

appropriate for regulations that “foreclose an entire medium of expression.”

Similarly, in Meyer v. Grant, 486 U.S. 414 (1988), this Court

employed “exacting scrutiny” to strike down a ban on the use of

paid petition circulators which “impose[d] a direct restriction

which ‘necessarily reduces the quantity of expression.’” /d. at

419, 420 (citing Buckley). This Court rejected the contention that

the availability of other means of expression should reduce the

degree of judicial scrutiny, explaining that the law “restrict[ed]

access to the most effective, fundamental, and perhaps economical

avenue of political discourse” and left open only “‘more

burdensome’ avenues of communication.” /d. at 424. “The First

Amendment protects appellees’ right not only to advocate their

cause but also to select what they believe to be the most effective

means for doing so.” Id.‘

2. Section 533(b) is wholly unlike the types of laws that this

Court has reviewed under intermediate scrutiny. To begin with,

§ 533(b) is not a restriction on “conduct” that has merely an

“incidental” effect on speech when applied to a particular example

of that conduct that happens to be expressive. See, e.g., Barnes

v. Glen Theatre, Inc., 501 U.S. 560, 567, 570 (1991) (plurality

opinion); Clark v. Community for Creative Non-Violence, 468

U.S. 288, 294, 298 (1984); United States v. O'Brien, 391 U.S.

367, 377 (1968). The O’Brien test itself applies only when

“*speech’ and ‘nonspeech’ elements are combined in the same

course of conduct.” 391 U.S. at 376. Section 533(b) does not

involve “speech-plus,” or conduct “intertwined,” or “inter-

mingled” with speech.* Where (as here) a ban falls on speech,

and speech alone, O’Brien’s version of intermediate scrutiny is

* See also Riley v. Nat'l Federation of Blind, Inc., 487 U.S. 781, 788-89

(1988) (explaining that “exacting First Amendment scrutiny” applies to “a

direct restriction on the amount of money a charity can spend on fundraising

activity” because such a law is “a direct restriction on protected First

Amendment activity”) (internal quotations omitted).

* See American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215,

231 (1974); Cameron v. Johnson, 390 U.S. 611, 617 (1968); Amalgamated

Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308,

313 (1968).

wholly inapplicable.‘

Nor could § 533(b) qualify for intermediate scrutiny as a

reasonable regulation of the time, place or manner of speech — the

only basis on which petitioners urge intermediate scrutiny. Govt.

Br. 23. There are three criteria for such rules, and § 533(b) fails

each one.

First, this Court has made clear that time, place or manner

rules must address “[s}ome basic incompatibility . . . between the

communication and the primary activity of the area.” Greer v.

Spock, 424 U.S. 828, 843 (1976) (Powell, J., concurring).

“(T]he question is whether ‘the manner of expression is basically

incompatible with the normal activity of a particular place at a

particular time.’” City of Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750, 763 (1988) (citation omitted).

The Court's time, place or manner cases thus deal only with

regulations that restrict the noncommunicative aspects of a

speaker's activity, such as its loudness, in order to limit its

nuisance impact on others. See, e.g., Ward v. Rock Against

Racism, 491 U.S. 781, 791-92 (1989) (regulation of rock-concert

volume to preserve sedate character of certain parts of Central

Park and surrounding residential areas); Frisby v. Schultz, 487

U.S. 474, 486 (1988) (upholding regulation of picketing in front

of a single residence to prevent intrusion on the privacy of that

residence, because picketing focused upon individual residence is

“fundamentally different from more generally directed means of

communication that may not be completely banned”); Members of

the City Council of the City of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 805 (1984) (time, place or manner cases

permit restriction of “certain methods of expression which may

legitimately be deemed a public nuisance”); Kovacs v. Cooper,

336 U. S. 77 (1949) (prohibition on the use of “loud and raucous”

sound trucks on municipal streets upheld because the use of such

* See also Cohen v. California, 403 U.S. 15, 18 (1971) (“The only

‘conduct’ which the State sought to punish is the fact of communication. Thus,

we deal here with a conviction resting solely upon ‘speech, . . . not upon any

separately identifiable conduct... . . Cf. United States v. O'Brien.”).

trucks would leave the unwilling listener “practically helpless to

escape this interference with his privacy” and could be thought a

“nuisance”).

Under this criterion, § 533(b) is plainly not a “time, place, or

manner” rule. It prohibits telephone companies from engaging in

an entire type of speech — video programming. Yet there is no

allegation that the provision of such speech is somehow a “public

nuisance.” There can be no argument that providing video

programming to individuals who wish to receive it is somehow

ty tee cen ons i ag a

Squarely applicable here is Lovell v. Griffin, 303 U.S.

306 Cittib, ctuandais GemmtanmiateanQens emanation

could not be considered a “time, place, or manner” rule because

“[t}here is . . . no restriction in [the] application [of the ban on

circulars} with respect to time or place. It is not limited to ways

which might be regarded as inconsistent with the maintenance of

public order, or as involving disorderly conduct, the molestation

of the inhabitants, or the misuse or littering of the streets.” /d. at

451; see also City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 808 (1984) (under Schneider v. State, 308

U.S. 147 (1939), ban on leafleting in public streets cannot be

considered time, place, or manner rule).

A second criterion for time, place, and manner rules is a

corollary of the first: a regulation must apply evenhandedly to all

speakers, because it must be concerned with the incompatibility of

that manner of speech with some other activity in the same area.

This Court thus has never deemed a law to be a “time, place, or

manner” rule unless it applied evenhandedly to all speakers. See

City of Lakewood, 486 U.S. at 763 (“In contrast [to a time, place,

or manner rule], a law or policy permitting communication in a

certain manner for some but not for others raises the specter of

content and viewpoint censorship.”). Indeed, speaker-specificity

in a speech regulation independently triggers strict scrutiny. See

Part IV, infra. Under § 533(b), of course, only telephone

companies are forbidden from providing video programming

directly to consumers.

The third criterion is that time, place, or manner rules must

permit the speaker to communicate his or her chosen content to his

or her desired audience. For example, in Ward v. Rock Against

Racism, Inc., 491 U.S. 781 (1989), this Court explained that the

regulation on loudness had “no material impact on any

performer's ability to exercise complete artistic control over sound

quality” of the performance delivered to its audience. /d. at 802.

Similarly, in Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981), the respondents, who were

permitted to sell or distribute literature only from a fixed location

(a booth) within a state fairground, were nonetheless able to hand

the same literature to their desired audience within the very forum

in question. See id. at 655. And in Grayned v. City of Rockford,

408 U.S. 104 (1972), this Court upheld a conviction of a protester

under an antinoise ordinance that applied in areas next to schools

when classes were in session. The ordinance, however, permitted

even noisy demonstrations “before or after the school session,

while the [same] student/faculty ‘audience’ enters and leaves the

school.” Jd. at 120.’

By contrast, § 533(b) prohibits telephone companies from

using the Nation’s most important medium of expression to speak

directly with their most natural audience: customers in their local

service areas. If § 533(b) were characterized as a “time, place, or

manner” restriction, any prohibition on speech could be similarly

described. For example, the ban on the payment of petition

circulators struck down in Meyer v. Grant, 486 U.S. 414 (1988),

could be deemed a mere limitation on the manner of

communicating with voters. Even a ban on book publishing could

be characterized as a prohibition on a single “manner” of printed

speech. Such reasoning would eviscerate the First Amendment.

7 In City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789

(1984), this Court noted that there was no evidence that “appellees’ ability to

communicate effectively is threatened.” /d. at 812; see also Frisby v. Schultz,

487 U.S. 474, 483, 484 (1988) (noting that the ban on residential picketing did

not impair communication); Ladue, 114 S. Ct. at 2045-46 (noting that the laws

in Vincent and Frisby did not foreclose speech).

3. Lastly, § 533(b) is not an access rule about sharing the use

of finite capacity, like the must-carry rules at issue in Turner

Broadcasting. This Court noted that the must-carry rules “do not

produce any net decrease in the amount of available speech,”

“leave cable operators free to carry whatever programming they

wish on all channels not subject to the must-carry requirements,”

and do not “diminish the free flow of information and ideas.” 114

S. Ct. at 2462, 2466. The must-carry rules do not ban a cable

operator from speaking. By contrast, § 533(b) is a “must nof

carry” rule for telephone companies.

Il. SECTION 533(b) IS INDEPENDENTLY

SUBJECT TO STRICT SCRUTINY AS A

CONTENT-BASED RESTRICTION ON SPEECH

Section 533(b) also triggers strict scrutiny for the independent

reason that it is content-based.

A. The Statutory Definition of “Video

Programming” Is Content-Based

1. This Court has made clear that strict scrutiny applies to

prohibitions on speech that by their very terms require examina-

tion of the content of communication. For example, in FCC v.

League of Women Voters, 468 U.S. 364 (1984), this Court invali-

dated a ban on “editorials” by public broadcast stations receiving

government funds. This Court observed that “the scope of [the]

ban is defined solely on the basis of the content of the suppressed

speech”: “in order to determine whether a particular statement by

station management constitutes an ‘editorial’ proscribed by [the

statute], enforcement authorities must necessarily examine the

content of the message that is conveyed.” /d. at 383. In City of

Cincinnati v. Discovery Network, Inc., 113 S. Ct. 1505, 1513,

1516-17 (1993), this Court held that the distinction between

“commercial handbills” and “newspapers” is content-based, even

though “[t}here is no doubt a ‘common sense’ basis for

distinguishing between the two.” The Court explained that

~—

“‘official scrutiny of the content of publications . . . is entirely

incompatible with the First Amendment.’” Id. at 1514 n.19.

And in Burson v. Freeman, 504 U.S. 191 (1992), this Court

held that a statute prohibiting the solicitation of votes and the

display of campaign materials within 100 feet of a polling place

was content-based. A plurality explained that “[wJhether

individuals may exercise their free speech rights near polling

places depends entirely on whether their speech is related to a

political campaign. The statute does not reach other categories of

speech, such as commercial solicitation, distribution, and display.”

Id. at 197. Accordingly, the plurality indicated that the statute’s

terms, which “distinguish{ed] among types of speech,” “require{d]

that the statute be subjected to strict scrutiny.” /d. at 207.*

2. Section 533(b) falls into this category of forbidden laws.

The speech banned by § 533(b) is defined exclusively in conteuit-

based terms: “programming provided by, or generally considered

comparable to programming provided by, a television broadcast

station.” 47 U.S.C. § 522(19).” The scope of § 533(b)’s

* This Court's decision in Turner Broadcasting Sys., Inc. v. FCC, 114

S. Ct. 2445 (1994), is to the same effect. The Court did not find the must-

carry rules to be content-based, but only because the rules did not “favor

programming of a particular subject matter, viewpoint, or format.” Id. at

2461 (emphasis added). The Court observed that, with respect to the must-

carry rules, “the extent of the interference [with speech] does not depend on

the content of the cable operators’ programming.” /d.; see also id. (must-

carry rules apply “irrespective of the programming [cable operators) choose

to offer”). By contrast, § 533(b) is content-based because its application

depends completely on the communicative substance of the programming that

a telephone company chooses to provide.

Four Justices would have invalidated even the must-carry rules as an

impermissible content-based regulation of speech. See 114 S. Ct. at 2476-79

(O'Connor, J., joined by Scalia, Thomas, and Ginsburg, JJ., concurring in

part and dissenting in part); id. at 2481 (Ginsburg, J., concurring in part and

dissenting in part).

from providing “CATV service,” defined not in terms of speech content but

rather as a “facility” for “receiv[ing)” broadcast signals and “distribut{ing}”

them to subscribers. Second Report on CATV Systems, 2 FCC 2d 725 (1966).

prohibition turns on an assessment of the expressive content and

communicative effect of the speech.

The District Court recognized that § 533(b), “as written and

enacted, requires reference to the content of the relevant message

in order to determine whether a particular visual image qualifies

under the statutory definition of ‘video programming.’” Pet. App.

84a. For example, § 533(b) permits telephone companies to

provide local subscribers with visual images such as the face of a

clock reflecting the current time, or the image of a person

speaking to the viewer by picture-phone. /d. at 85a. But

telephone companies may not provide programming comparable

to that provided by a television broadcast station in 1984 (the year

of § 533(b)’s enactment), like TV shows and movies. As the

District Court concluded, “there is simply no way that § 533(b)

_. . can be applied without reference to the content of the message

being conveyed.” Id.

In fact, the Government conceded in the District Court that a

ban enumerating 1984 television programming show-by-show —

“the MacNeil/Lehrer Newshour,” “news programs,” “sitcoms,”

and so on — would be content-based and “would not be

constitutional.” /d. at 85a-86a n.22. The District Court asked,

“If you got out the T.V. Guide for 1984 you could end up with a

generic list of all the stuff that [was] on television [that year]... .

What’s the difference [between that and the statutory definition of

video programming}?” /d. Neither petitioner had any response.

3. The Government admits that the statute requires the FCC,

in determining whether a particular video image is prohibited, to

judge whether it is “‘comparable to [the programming] provided

by broadcast television stations in 1984.’” Govt. Br. 21 (quoting

Video Dialtone Order, 7 FCC Red 5781, 5820 (1992)). The

Government contends, however, that “the statute [merely]

distinguishes the one-way, non-interactive television technology

familiar to Congress in 1984 from other forms of speech that were

under development at the time . . ., such as interactive video and

videotext.” Jd.

But the statute simply does not draw this mechanically-

applicable, content-neutral technological distinction between one-

way transmission and two-way interactive communication. Many

kinds of one-way transmission are permitted by § 533(b), and

many kinds of two-way interactive communication are prohibited

by the statute.

The Cable Act itself makes clear that the inclusion of a two-

way capability does not take programming out of the ban. The

Act defines “cable service” to include only “one-way . . . video

programming,” 47 U.S.C. § 522(6)(A) — indicating that one-

transmissions are but a subset of “video programming.”

like interactive television shows, would nonetheless be prohibited

by § 533(b). Video Dialtone Order, 7 FCC Red at 4 75.

Conversely, the one-way nature of certain transmissions does

not necessarily make them “video programming.” The

services and stock market information, pay-per-view, one-way

transmission of video games and computer software, on-line

airline guides, and other programming services” are not “video

programming,” notwithstanding their prominent video

Hence, the definition of “video programming” does not hinge

on a technical distinction between one-way and two-way

communication. Rather, it operates according to an inherently

sufficiently “comparable” to broadcast television programming.

For example, a picture of an automobile on a television screen

might be a display generated by a video game (not “video

programming,” even if transmitted over telephone lines to a

subscriber), or part of a video catalogue (not “video program-

ming”), Or a scene in a television show (“video programming,”

unless, for instance, the scene is an excerpt used as part of an

interactive multimedia presentation). The statute’s line between

the forbidden and the permissible is drawn in terms of the

speaker's infusion of creativity (did the speaker create or structure

the image or sequence of images so that the result is “comparable”

to broadcast television circa 19847) and the speech’s

communicative impact on the minds of viewers (does the audience

perceive the image as “comparable” to broadcast television?).

Those distinctions simply cannot be made without reference to the

content of the programming. See J.A. 157-61 (Affidavit of

William E. Lee 4 28-35).

4. Echoing its mischaracterization of § 533(b) as a “time,

place, or manner” rule, the Government also contends that

§ 533(b) is not content-based because it is a regulation on the

“‘mode of delivery of the speech."” Govt. Br. 20-21. This Court

rejected the parallel argument both in Burson, 504 U.S. at 197,

and in Discovery Network, 113 S. Ct. at 1516. Section 533(b)

does not ban the delivery of information by wires, or even in

video form on a television screen. Rather, it bans only the

expressive packaging of certain video images, depending on their

content. Section 533(b) can no more be justified as a resiriction

on the “mode of delivery” of speech than the ban on editorials in

FCC v. League of Women Voters could be justified as a restriction

on the delivery of information through the “mode” of an editorial,

or the prohibition on unsigned campaign literature in Mcintyre v.

Ohio Elections Comm'n, 115 S. Ct. 1511 (1995), could be upheld

as a limit on the “mode” of anonymous speech."

!® In the Court of Appeals, NCTA argued that § 533(b) was “content-

neutral” because it drew a “market” distinction between “cable service” and

telephony. This claim is unsupportable. The Cable Act uses the phrases

“cable operator,” “cable service,” and “video programming” separately, not

interchangeably . In § 522(19), Congress provided a specific definition of

“video programming.” Thus, the FCC was certainly correct in the Video

Dialtone Order when it rejected the argument that Congress meant to equate

“video programming” with “cable service.” 7 FCC Red at 4 75 0.194. In

any event, § 533(b) would still be subject to strict scrutiny, even if it were a

“market-based” ban. See Arkansas Writers’ Project, Inc. v. Ragland, 481

U.S. 221, 230, 232 (1987) (market-based measure which exempted certain

magazines from tax in order “to encourage ‘fledgling’ publishers” was invalid

because, “[i]n order to determine whether a magazine is subject to sales tax,

__ . “enforcement authorities must necessarily examine the content of the

message that is conveyed’) (citation omitted).

"! Because § 533(b) regulates speech according to its expressive content,

it is not akin to the limitations on nonexpressive aspects of photographic

reproductions, like their size and color, upheld in Regan v. Time, Inc., 468

U.S. 641 (1984). Instead, § 533(b) is like the statutory provision invalidated

5. The Government further suggests that § 533(b) is content-

neutral because it does not “contain any reference to the subject

B. Neither Congress’ Motives Nor Post Hoc

Justifications Can Alter the Conclusion

That Strict Scrutiny Applies

1. The most novel argument advanced by the Government

is that, even though by its terms § 533(b) bans speech according

‘0 content, intermediate scrutiny is nonetheless appropriate because

the statute can be “‘justified without reference to the content of

regulated speech.’” Govt. Br. 22 (quoting City of Renton v.

in Regan, which prohibited the publication of any photograph of U.S. currency

except for educational, historical, and newsworthy purposes: “A determination

Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)).”

This Court, however, has flatly rejected the suggestion that a

law otherwise subject to strict scrutiny should receive lesser

scrutiny simply because a reason for the law can, with enough

creativity, be devised without reference to the content of speech.

For example, this Court applied strict scrutiny to the facially

content-based laws at issue in FCC v. League of Women Voters,

468 U.S. 364, 383 (1984), Burson v. Freeman, 504 U.S. 191,

197, 207 (1992), Arkansas Writers’ Project, Inc. v. Ragland, 481

U.S. 221, 230 (1987), and Regan v. Time, Inc., 468 U.S. 641,

648-49 (1984), without pausing to consider possible content-

neutral justifications. Burson v. Freeman is illustrative: There,

this Court applied strict scrutiny even though the State asserted an

interest not in suppressing communication but rather in preventing

fraud and intimidation by campaigners who might “physically

interfere{] with electors attempting to cast their ballots.” 504 U.S.

at 209 n.11. See also Cincinnati v. Discovery Network, 113 S. Ct.

at 1516-17 (irrelevant that “the justification for the regulation is

content neutral,” because “the very basis for the reguiation is the

difference between ordinary newspapers and commercial speech.

_ . . [Whether any particular newsrack falls within the ban is

determined by the content of the publication resting inside that

newsrack”) (emphasis added).

Thus, in Turner Broadcasting System, Inc. v. FCC, 114 S.

Ct. 2445 (1994), this Court confirmed that strict scrutiny is

triggered by laws like § 533(b) that by their terms proscribe

speech on the basis of its content — without further inquiry into

legislative purpose. This Court explained that, “while a content-

based purpose may be sufficient in certain circumstances to show

'2 The Government notes that the District Court followed its view of

Renton, but fails to mention that the court expressed grave “misgivings” about

this interpretation of the First Amendment, noting that it was a “significant

retreat from the traditional content-based/content-neutral distinction,” Pet.

App. 89a, 93a, and predicting that its novel approach would “gut[]” the

distinction between content-based and content-neutral restrictions of speech.

Id. at Wa.

that a regulation is content-based, it is not necessary to such a

showing in all cases,” since “‘illicit legislative intent is not the sine

qua non of a violation of the First Amendment.’” /d. at 2459

(citation omitted). “Nor will the mere assertion of a content-

neutral purpose be enough to save a law which, on its face,

discriminates based on content.” /d. (emphasis added). This

Court looked to the justifications proffered by the Government

only after determining that the rules were not “on their face”

content-based. /d. at 2460.

First Amendment jurisprudence would look very different

indeed if the mere invocation of a content-neutral justification were

enough to avoid strict scrutiny, for it is “invariably the case [that]

the government can frame the interest served by [a restriction} in

essentially speech-neutral terms.” Quincy Cable TV, Inc. v. FCC.

768 F.2d 1434, 1451 (D.C. Cir. 1985), cert. denied, 476 U.S.

1169 (1986).”

2. The Government's argument rests on a misapplication of

this Court's decision in Renton and similar cases. In reviewing

laws that are not on their face content-based bans on speech and

thus do not otherwise trigger strict scrutiny, this Court has asked

whether such laws, although ostensibly based on noncommuni-

cative attributes of speech, should nevertheless be subjected to

strict scrutiny because, in reality, they are attempts to suppress

speech on the basis of content. But this is a one-way ratchet, for

this Court has reserved such analysis for laws that are aimed, as

” For example, in Simon & Schuster, $02 U.S. at 108, 118, the State

asseried an interest in compensating the victims of crime; in Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 659-60 (1990), the State

asserted an interest in preventing the appearance or reality of corporate

corruption of the political process; in Riley, 487 U.S. at 789, the State asserted

Government asserted an interest in protecting the dignity of foreign diplomatic

personnel; in Pacific Gas & Electric, 475 U.S. at 19, the State asserted an

interest in effective ratemaking proceedings; and in Consolidated Edison Co.

of New York v. Public Service Comm'n, 447 U.S. 530, $40-43 (1980), the

State asserted interests in protecting individual privacy, allocating limited

resources in the public interest, and protecting utility ratepayers

a facial matter, at the “nonspeech” elements of an expressive act,

such as its noise level, see Ward, 491 U.S. at 791-92, or its

location within a community. See Renton, 475 U.S. at 46, 54."*

In particular, Renton — on which the Government would rely

— concerns “time, place, and manner rules,” 475 U.S. at 46, not

a law like § 533(b), which not only directly bans speech as such,

but also uses the “content” of speech to define the very substance

of what is banned. The Renton ordinance did “not ban adult

theaters altogether,” 475 U.S. at 46, and in fact left adult theaters

undiluted freedom “to open and operate . . . within the [same]

city.” Jd. at 54. It “merely provide{d] that such theaters may not

be located within 1,000 feet away from any residential zone,

single- or multiple-family dwelling, church, park, or school.” /d.

at 46. The ordinance was no more objectionable than a “content-

based” public library rule assigning books about geometry and

books about geology to different shelves.

There is a world of difference between such “traffic cop”

rules that make innocent reference to content in the course of non-

intrusively regulating when, where, and how speech directed to a

given audience may occur, and prohibitions that use content to

determine whether the speech in question may be provided to that

audience at all. Section 533(b), with its ban on “home-town”

video programming, is akin to the city-wide ban on adult theaters

that Renton expressly left subject to strict scrutiny."

14 in R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992), for example,

this Court described the “justified-without-reference” test as applicable only

to “time, place, or manner” restrictions, see id. at 2544, and refused to

consider the city’s interests as a rationale for reducing the strict scrutiny

otherwise triggered by “a facially content-based statute.” Id. at 2549; see also

Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd. , 502

U.S. 105, 116, 122 n.* (1991) (holding that “Son of Sam” law was “content-

based,” without resolving the question whether the statute had a “content-

neutral” justification under Ward and Renton — demonstrating that the analysis

in Ward and Renton is not the exclusive means for determining whether

legislation is content-based).

'S Thus, in Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976),

a decision that “largely dictated” the Court's reasoning in Renton, 475 US.

3. The Government nonetheless insists that strict scrutiny is

inappropriate here because § 533(b) supposedly “is not motivated

by any hostility to any message,” Govt. Br. 20, and was not

“designed” to suppress speech. Id. According to the Solicitor

General, the “objective” (id.) and “purpose” (id. at 22) of

Congress were entirely pure.

To begin with, these assertions are far too speculative to

support a facially content-based restriction on speech.

Ascertaining the “motive” and “purpose” of the 1984 Congress —

as if it were a unitary entity — is an enterprise fraught with

difficulty. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-39

(1987) (Scalia, J., dissenting). And the effect on speech is the

same regardless of the subjective intent of individual Members of

Congress. :

More fundamentally, the bright line rule that “a regulation

that on its face draws content distinctions” ordinarily triggers strict

First Amendment scrutiny, is essential to eliminate the risk of the

censorship of ideas. Ladue, 114 S. Ct. at 2047 (O’Connor, J.,

concurring) (emphasis added). Thus, this Court has consistently

held that strict scrutiny does not depend on a showing that

at 46, this Court also upheld an adult theater zoning ordinance. But a plurality

pointedly noted that “[tJhe situation would be quite different if the ordinance

had the effect of suppressing, or greatly restricting access to, lawful speech.”

427 U.S. at 71 n.35; see also id. at 79 (Powell, J., concurring) (ordinance did

not involve “any significant overall curtailment of adult movie presentations”):

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76 (1981) (“Here, the

Borough totally excludes all live entertainment, including non-obscene nude

dancing that is otherwise protected by the First Amendment. As we have

observed, Young . . . did not purport to approve the total exclusion from the

city of theaters showing adult, but not obscene materials. It was carefully

noted in that case that the number of regulated establishments was not

limited.”) (emphasis added). Nor did Renton or Young involve outright bans

on the local exhibition of sexually explicit films; in such a case, even the city’s

invocation of “secondary effects” could not save the ban from strict scrutiny.

Cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975). Far from

questioning these precedents, Renton expressly reaffirmed them, explaining

that the narrowness of the zoning rule in that case “avoid{ed] the flaw that

proved fatal . . . in Schad and Erznoznik.” 475 U.S. at 52.

Congress intended to silence communication of a particular

message."* Indeed, in O’Brien itself this Court denounced inquiry

into legislative purpose as “a hazardous matter.” 391 U.S. at 383;