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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0606%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1157

## Text

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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

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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.

4

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.”

5

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.”).

7

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).

9

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

10

~—

“‘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).

11

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

12

$C

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?).

13

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

14

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

15

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.

16

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

17

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.

18

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.

19

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;
see also id. at 383-84 n.30.

The hazards are apparent here. The Government's conjecture
notwithstanding, it appears that, if anything, Congress proceeded
on decidedly content-based assumptions about the value of
telephone company speech. The key House Report justified
§ 533(b)’s ban on video programming on the ground that it would
“foster the availability of a ‘diversity of viewpoints’ to the listening
audience.” H.R. Rep. No. 934, 98th Cong., 2d Sess. 31 (1984)
(emphasis added). In this very litigation, petitioners have
defended § 533(b) on the ground that, “although the telephone
companies contemplate First Amendment activities, they would not
be the same as those of newspapers,” Govt. Reply Br. in Ct. App.
4 (Dec. 30, 1993); that the telephone companies had made “no
claim that the content of [their] channels would be unique,” NCTA
Reply Br. in Ct. App. at 7 (Dec. 30, 1993); and that “it is fanciful
to believe that Bell Atlantic . . . would make available a whole
range of programming (e.g., movies) not offered by independent
cable operators.” /d.

The assumption that telephone companies’ involvement in the
cable industry will, on balance, subtract from, rather than add to,
“diversity” — not simply of ownership but also of viewpoint — is
necesscrily based in part on the expected content of their speech.
See Pacific Gas & Elec. Co. v. Public Utilities Comm'n of
California, 475 U.S. 1, 12 (1986) (holding that a law mandating

'6 In Discovery Network, for example, this Court acknowledged that
“there is no evidence that the city has acted with animus toward the ideas
contained within respondents’ publications.” 113 S. Ct. at 1516. Nonetheless,
this Court found the city’s “mens rea” irrelevant. /d.; see also Simon &
Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S.
105, 117 (1991) (“‘even regulations aimed at proper governmental concerns’”
— as opposed to the suppression of ideas — are subject to strict scrutiny if they
fall “only on speech of a particular content”); Minneapolis Star & Tribune Co.
v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983).

20

access to a utility company’s billing envelopes that was designed
to “offer the public a greater variety of views” was content-based
and was invalid under the First Amendment).

In sum, none of the Government’s arguments warrants the
application of less than strict scrutiny.

Ill. SECTION 533(b) IS INVALID BECAUSE
IT VESTS AN ADMINISTRATIVE
AGENCY WITH IMPERMISSIBLE
DISCRETION OVER SPEECH

1. There is yet a third reason why § 533(b) must be
subjected to more than intermediate scrutiny and necessarily
violates the First Amendment. Administrative regulation of
speech is invalid per se unless it operates according to content-
neutral standards that are “‘narrow, objective, and definite.’”
Forsyth County v. Nationalist Movement, 112 S. Ct. 2395, 2401
(1992) (citation omitted). “The reasoning is simple: If [such a]
scheme ‘involves appraisal of facts, the exercise of judgment, and
the formation of an opinion’ by the licensing authority , “the danger
of censorship and of abridgment of our precious First Amendment
freedoms is too great’ to be permitted.” Jd. at 2401-02 (citations
omitted). The possibility of case-by-case judicial review cannot
save such a statute, since without narrow guideposts, “post hoc
rationalizations by the licensing official and the use of shifting or
illegitimate criteria are far too easy, making it difficult for courts
to determine in any particular case whether the licensor is
permitting favorable, and suppressing unfavorable, expression.”
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758
(1988).'

"” See also City of Cincinnati v. Discovery Network, Inc.. 113 S. Ct.
1505, 1513 n.19 (1993); Interstate Circuit v. Dallas, 390 U.S. 676, 683-85
(1968); Staub v. City of Baxley, 355 U.S. 313, 322 (1958); Lovell v. City of
Griffin, 303 U.S. 444, 451 (1938).

21

2. Section 533(b) violates this principle. The substantial
latitude left the FCC in appraising facts, exercising judgment, and
forming an opinion as to whether particular video images amount
to “video programming” is impermissible under the First
Amendment. For example, the FCC has already recognized that,
although “an educational multimedia presentation” is not “video
programming,” “the simple inclusion of some textual information
[could not] transform a severable video program into a permissible
multimedia presentation.” Video Dialtone Order, at 4 76 n.196.
Left unsaid, and unknowable from the statute’s language, is where
the line will be drawn on the spectrum that ranges from “severable
video programs,” at one end, to “multimedia presentations,” on
the other. Indeed, the Commission has admitted that “it is not
possible to classify with precision all potential services” to
determine whether they qualify as “video programming” and has
warned that “the examples we now set forth are by no means
exhaustive.” /d. at { 74.

Tellingly, the government itself found the phrase “video
programmers” “too vague and ambiguous” to permit an answer to
one of the paragraphs in the plaintiffs’ complaint in this case. See
J.A. 20. Even if a rough-and-ready “I know it when I see it”
approach could be deemed sufficient for separating hard-core
pornography from protected speech, Jacobellis v. Ohio, 378 U.S.
184, 197 (1964) (Stewart, J., concurring), it surely is not adequate
for classifying different categories of protected speech.

3. The dangers of such administrative discretion cannot be
brushed aside. If the FCC were to find that a video image
provided by a telephone company amounted to “video
programming,” it could seek a federal criminal prosecution
pursuant to 47 U.S.C. § 401(c), or initiate administrative
forfeiture proceedings of its own. Indeed, a prior case involving
the constitutionality of § 533(b) under the First Amendment, in
which the court did not reach the issue, began as an FCC
enforcement proceeding triggered by complaints by a competing
cable company. See 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). The

22

telephone company was a tiny independent — a family-run
business — that had wired only 500 homes for cable.
Nonetheless, the FCC imposed a $20,000 civil forfeiture and
awarded the cable company damages. Comark Cable Fund III.
100 F.C.C.2d 1244 (1985).

The broad discretion afforded the FCC by § 533(b) renders
the statute invalid on its face.

IV. SECTION 533(b) TRIGGERS STRICT SCRUTINY
FOR THE FURTHER REASON THAT IT
SINGLES OUT TELEPHONE COMPANIES
FOR A SPECIAL BAN ON SPEECH

Even apart from the reasons already adduced, strict scrutiny
is required because § 533(b) bans the speech of only a single class
of speakers. It bans expression only by speakers that began as
telephone companies, but now are able to provide cable service,
while leaving speakers that began as cable companies (but now are
able to provide telephone service over their networks) free to
speak. Section 533(b) is thus akin to a law prohibiting a specific
group from participating in a parade down Main Street.

Under established constitutional principles, the selectivity of
§ 533(b) calls for a compelling justification by the Government.
“In the realm of protected speech, the legislature is constitutionally
disqualified from dictating the subjects about which persons may
speak and the speakers who may address a public issue.” First
National Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978
(emphasis added)."*

"* See also Simon & Schuster, 502 U.S. at 117 (“{t]he Government's
power to impose content-based financial disincentives on speech surely does
not vary with the identity of the speaker”); Philadelphia Newspapers, Inc. v.
Hepps, 475 U.S. 767, 777 (1986) (describing Bellomi as involving a “speaker-
based restriction”); Austin v. Michigan Chamber of Commerce, 494 U.S. 652,
680-81 (1990) (Scalia, J., dissenting) (noting that corporate nature of speaker
does not justify suppressing its speech); Perry Education Ass'n, 460 U.S. at
55 (restricting the access of a “single class of speakers” to a particular avenue
of communication can be justified only by “compelling reasons”); Madison

23

This case does not involve evenhanded regulation of all
members of a single medium, as in Turner Broadcasting, and
Leathers v. Medlock, 499 U.S. 439 (1991). Section 533(b) applies
not to all would-be providers of video programming over their
networks, but only to those entities that began as telephone
companies. Yet able companies increasingly provide many types
of telephone services. See, e.g., J.A. 187-88, 202-04; NCTA v.
FCC, 33 F.3d 66, 69 (D.C. Cir. 1994) (explaining the “blurring”
of the line between voice and video technologies); NCTA Br. 9,
37 & n.31 (noting the entry of cable companies into telephony).
Nor does § 533(b) bar electric utilities from providing video
programming directly to their customers, even though such speech
would be subject to exactly the same arguments as those advanced
by petitioners here. In fact, “[mJost utility poles and conduits are
owned not by telephone companies but by other utilities, and these
utilities may and do provide cable television themselves, in
competition with cable companies.” JA 185-86; see also id. at
198-99.

This case involves discrimination among speakers within a
single medium of the kind that this Court has always considered
invalid. In Minneapolis Star & Tribune v. Minnesota Comm’r of
Revenue, 460 U.S. 575 (1983), for example, this Court invalidated
a special paper and ink tax “because it targets a small group of
newspapers.” /d. at 591. The Court did not “impugn the motives
of the Minnesota Legislature,” but it explained that “to tailor the
tax so that it singles out a few members of the press presents such
a potential for abuse that no interest suggested by Minnesota can
justify the scheme.” /d. at 592. Similarly, in Grosjean v.
American Press Co. , 297 U.S. 233 (1936), this Court struck down

School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167,
176 (1976) (public board may not “discriminate between speakers” at its
meetings); Police Department of Chicago v. Mosley, 408 U.S. 92, 96 (1972)
(“[W]e have frequently condemned . . . discrimination among different users
of the same medium for expression”).

24

a tax on publications with weekly circulations above 20,000.
which fell on 13 of the approximately 135 newspapers in the State.

This Court reaffirmed this principle in Leathers, explaining
that “narrow targeting of individual members” of a particular
medium “offends the First Amendment.” 499 U.S. at 446; see
also id. at 447 (“A tax is . . . suspect if it targets a small group of
speakers”). In contrast, in Turner Broadcasting this Court
emphasized that “the must-carry provisions are not structured in

Here, the selective ban i by § 533(b) applies only

certain providers of video programming — telephone companies.
It is significantly more burdensome than the discriminatory taxes

The discriminatory nature of § 533(b) provides an additional
reason that strict scrutiny is warranted.

CONCLUSION

For these independent reasons, § 533(b) is subject to strict
judicial scrutiny. Because no party before the Court suggests that
the statute can survive such scrutiny, the judgment of the Court of
Appeals should be affirmed.

Respectfully submitted.

ROGER M. FLYNT, JR. WALTER H. ALFORD
BELLSOUTH JOHN F. BEASLEY
TELECOMMUNICATIONS, INC. WILLIAM B. BARFIELD
675 West Peachtree Street Counsel of Record
Suite 4300 BELLSOUTH CORPORATION
Atlanta, Georgia 30375 1155 Peachtree Street
(404) 529-0724 Suite 1800

Atlanta, Georgia 30367

(404) 249-2641

Counsel for Amicus Curiae

October 18, 1995

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0606%3A20. Public record. Not legal advice.