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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0606%3A22

## Record

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

## Text

=p: on te ;. age Sager Se

z

Tea York, New York 10012 ©
(212) 998-6172

i Nid or ig Lites hs gs
Pot Se ce re Sih

< SEEEPSRISEE TESS RU ERRANDS: a Se ee A

—— ee ee ee

AVA OF 0

Ba a , Y 5

TABLE OF CONTENTS

Page
EEE ccc kccecvcevcoccns ii
Dos lc + 6.6\5.0-6-0 poh sb 6 o's oes l
STATEMENT OF THE CASE ..........-222e00- |
INTRODUCTORY STATEMENT AND
SUMMARY OF ARGUMENT ................. 4
es ic thd eee sien s +6 eee pee és © 5
BANNING LOCAL TELEPHONE COMPA-
NIES FROM USING THEIR OWN PROPER-
TY TO AMPLIFY THEIR SPEECH VIO-
LATES THE FIRST AMENDMENT ......... 7
A. The Relationship Between Speech And
Amplifying Technology ................ 7
B. The Power To Regulate Amplification
DEE ceadésaxked mt bwdceercces 10
C. Speech May Not Be Banned On The Basis
Of Assertions That Speech Has A "Bad
sine soe To Lead To Improper Be-
echh.e 60RD es cade edb ane o'c 15
D. Where, As Here, The Government Grants
A Speaker Monopoly Control Over A Sig-
nificant Amplifying Technology, Gov-
ernment May -- And Perhaps Must -- As-
sure Competing Speakers Fair Access To
The Amplifying Technology ............ 20
ET LLU so 6b.6 00 0.9 0.0.4.0 ele d b HO oe 23

TABLE OF AUTHORITIES

Page
Cases
Abrams v. United States,
aoe Us GE TROND Dieiicccévccactesaniek. 18
Associated Press v. United States,
PaO Th BOD. oe cp 0k ci beokd bus tae 11

v. Ohio,

SOO Ua WOUND s ccccccdilcvccsscis uEaeet 19
Buckley v. Valeo,
GPG US. FOG 6c c00tck sibs eee 16
CBS, Inc. v. Democratic Nat'l Committee,
453 CB. SOCIO) «vc vewbduwedoiessi cue 5
CBS, Inc. v. FCC,
G53 Us Bee Cee 6c ik hikied badad ieee 5, 21
Central Hudson Gas & Electric Corp.
v. Public Svc. Comm'n,
GCF UG, Fee ows cdewbebdecdecseacuee 19
Citizen Publishing Co. v. United States,
579 UB. ERE Gls ax 60 bbbeec as cha ace 11
City of Ladue v. Gilleo,
512 U.S. __, 114 S.Ct. 2038 (1994) .............. 6
City of Los Angeles v. Preferred
Communications, Inc.,
6) UE, Ge eee 6b iw eee 9
Edenfield v. Fane,
507 U.S. __, 113 S.Ct. 1792 (1993) .............. 19
FCC v. League of Women Voters,
S68 US. S04 CGR... fc odia'sebs save 20

FCC v. Midwest Video Corp.,
440 U.S. GBD (1979)... eee eee eee 9

FCC v. National Citizens Comm.

for Broadcasting,

496 UB. TTS CIFTE) 0. cc cee ee eeees 11, 21
Gilbert v. Minnesota,

254 U.S. 325 (1GBD) 0... ccc cece cece cceee 18
Gitlow v. New York,

268 U.S. G52 (1925S)... cece ccc reece cere veees 18
Hustler Magazine v. Falwell,

485 U.S. 46 (1988)... eee eens 11
Ibanez v. Florida Board of Accountancy,

512 U.S. _., 114 S.Ct. 2084 (1994) ..... 6. cee eees 19
Kovacs v. Cooper,

TI fe 5
Lebron v. National RR Passenger Corp.,

513 U.S. _., 115 S.Ct. 961 (1995) ..... 6... ee eee 22
Lorain Journal Co. v. United States,

ORT RS 0 11
Miami Herald Publishing Co. v. Tornillo,

SID US. BOT CIGPS) ww ctr ccc ceees 5, 11, 20
National Broadcasting Co. v. United States,

319 U.S. 190 (1943) ..........55-. ae 8 5
Pacific Gas & Electric Co v.

Public Utilities Comm'n,
ee eee 5
Pierce v. United States,

BED ER PEED coc ccc cccceseccccetecccs 18

Preferred Communications,

Inc. v. City of Los Angeles,
754 F.2d 1396 (9th Cir. 1985),

aff'd on narrower grounds,

GIO Was GE eccccccccccccsscvcsncenes 12
Red Lion Broadcasting Co. v. FCC,

Se : DT co bccecceeoevecegase 4, 11, 21
Rubin v. Coors Brewing Co.,

514 U.S. _, 115 S.Ct. 1585 (1995) ..........-45. 6
Sable Communications, Inc. v. FCC,
Ge Ws PED v Sec ccescececesccesepee 6, 18
Saia v. New York,

. , F | iePerraiy sc rrr 5
Schenck v. United States,

_ , £ rrr rerr ry 18
Schuyler v. United States,

, F - F i nt ee 18
The Trial of John Peter Zenger,

YA 4% & & J eee 7
Turner Broadcasting System, Inc. v. FCC,

512 U.S. _, 114 S.Ct. 2445 (1994) ........... passim

United States ex rel. Milwaukee Soc.
Democrat Publishing Co. v. Burleson,

y § 4 4 YS SES SS a 18
United States v. American Tel. & Tel. Co.,
524 F.Supp. 1336 (D.D.C. 1981) .........-.2455. 10

United States v. American Tel. & Tel. Co.,
552 F.Supp. 131 (D.D.C. 1982),

aff'd mem. sub nom. Maryland v. United States,
GD Was Ee EEE ode ce deen eSbs Guns ncoess 10

United States v. Midwest Video Corp.,
Or eee 9

United States v. Paramount Pictures, Inc.,

66 F.Supp. 323 (S.D.N.Y. 1946),

70 F.Supp. 53 (S.D.N.Y. 1947),

aff'd in part and rev'd in part,

a a ss ce pecans tecece »

United States v. Paramvunt Pictures, Inc.,
1940-43 Trade Cas. (CCH) 288
Ee 8

United States v. Southwestern Cable Co.,
EE no y

Ward v. Rock Against Racism,
ye ET OPER LETE PEE E TESST 5

Whitney v. California,
ne ak wh. 2 ona bce bana) e% 18

Statutes and Regulations
NE Oe ee eee eee ee 9

ae en Eat a passim

Commerce Court (Mann-Elkins) Act,
EE eee Re ae 9

S. Rep.No. 456, 101st Cong.,

26 BOER. FGRGOED. c cnc cvewcccccccteviosedes

Administrative Proceedings and Reports
In re Telephone Company--Cable Television

Cross-Ownership Rules, Sections 63.54-63.58,

Notice of Inquiry,

2 F.C.C. Red. 5092 (1987)... 2... ee eee ee ees

In re Telephone Company--Cable Television

Cross-Ownership Rules, Sections 63.54-63.58,

Further Notice of Inquiry and Notice
of Proposed Rulemaking,

3 F.C.C. Red. 5849 (1988)... .. 2... 2 ee eee,

In re Telephone Company--Cable Television

Cross-Ownership Rules, Sections 63.54-63.58,

First Notice of Proposed Rulemaking,
First Report and Order, and Second

Further Notice of Inquiry,

7 POC. Ree. SER CSPI) 2. ccccccceccec.

In re Telephone Company-—-Cable Television

Cross-Ownership Rules, Sections 63.54-63.58,

Second Report and Order, Recommendation
to Congress, and Second Further Notice
of Proposed Rulemaking,

7 F.C.C. Red. 5781 (1992),

modified in part on reconsideration,

10 F.C.C. Red. 244 (1994)... ........00065.

Applications of Telephone Companies
for Section 214 Certificates for Channel
Facilities Furnished to Affiliated Com-
munity Antenna Television Systems,

Be CA OEE GIFTED ses ccctccccccscuses

ino. SR 4, 15
FCC Policy on Cable Ownership

Po A a re eee 2
Other Authorities

Administration White Paper

on Communication Act Reforms ................. 17
Clair, Colin, THE HISTORY OF PRINTING
i i ws 8
de Sola Pool, Ithiel, TECHNOLOGIES

ST aN iin nn 6 Obs Wee Pec c coeos 5

EE 7
Emord, Jonathan W., FREEDOM, TECHNOLOGY

AND THE FIRST AMENDMENT (1991) ..............
Kellogg, Michael K., et al.,

FEDERAL COMMUNICATIONS LAW (1992)........... 4
Levy, Leonard W., EMERGENCE OF

RE 7
Milton, John, COMPLETE POEMS AND MAJOR

PROSE (Merritt Y. Hughes ed. 1957) .............. 7
Partisan Politics and the Legal

Profession in Provincial New York,”

94 Colum.L.Rev. 1495 (1994) .................. 7

vii

Robert W. Garnett, THE TELEPHONE

ENTERPRISE: THE EVOLUTION OF THE

BELL SYSTEM’S HORIZONTAL STRUCTURE,

OPO Ac hksbahdedaaverpocddccbes

Roof, Dana E., ef al., "Structural

Regulation of Cable Television:

A Formula for Diversity,"

pC i PEE pc na chbbhscenoscoceeed

Siebert, Frederick S..,
FREEDOM OF THE PRESS IN ENGLAND,
SP SU COW EE se 66 6b ebECo Kew ecb eee becs

Smith, Jeffrey A.,
PRINTERS AND PRESS FREEDOM (1988) ............

Temin, THE FALL OF THE BELL
PMD, cucasgddduactoavctcsiicecoctti

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a na-
tionwide, nonprofit, nonpartisan organization with nearly
300,000 members dedicated to the principles of liberty and
equality embodied in the Constitution. In support of those
principles, the ACLU has appeared before this Court on nu-
merous occasions, both as direct counsel and as amicus
curiae. The ACLU of Virginia is its statewide affiliate.

Throughout its seventy-five year history, the ACLU has
been particularly concerned about the relationship between
government regulation and free speech, and has insisted that
government efforts to regulate speech be rigorously justified.
Recently, for example, the ACLU filed an amicus brief in
Turner Broadcasting System, Inc. v. FCC, 512 U.S. _, 114
S.Ct. 2445 (1994), urging the development of a fuller factu-
al record -- a position that this Court ultimately adopted. In
this case, the government once again seeks to regulate
speech in the name of diversity. Because these issues are of
direct concern to the ACLU and its members, we respectful-
ly submit this brief to assist the Court in resolving the im-
portant questions presented.

STATEMENT OF THE CASE

This is an appeal from a decision of the United States
Court of Appeals for the Fourth Circuit declaring that 47
U.S.C. §533(b) violates the First Amendment. Chesapeake
& Potomac Telephone Company v. United States, 42 F.3d
181 (4th Cir. 1994). Section 533(b), which was enacted in
1984 as part of Congress’ comprehensive regulation of the
cable industry, forbids a local telephone company (referred

' Letters of consent to the filing of this brief have been lodged with the
Clerk of the Court pursuant to Rule 37.3.

to in the government’s papers as an LEC) from directly pro-
viding video programming to viewers in its local community
either through its own telephone wires or over a cable sys-

nerable new CATV industry might be stifled if local tele-
phone companies were permitted to offer the same service.’
See 21 F.C.C.2d 307 (1970). In 1984, Congress enacted

§533(b), adopting the 1970 FCC rules, apparently without
considering whether the emergence of cable as a powerful

? The operative language of the statute forbids a local telephone compe-
ny from “provid{ing] video programming directly to subscribers in its
telephone service area." 47 U.S.C. §533(b)1).

> The 1970 regulations were reaffirmed by a 1980 FCC staff study re-
leased on the eve of the breakup of the Bell system. FCC Policy on
Cable Ownership: A Staff Report 141-178. Significantly, every FCC
study since the breakup of the Bell system has recommended abolishing
the speech restrictions on local telephone companies at issue in this case.

2

ship regime was no longer justified. See 2 F.C.C. Red.
5092 (1987); 3 F.C.C. Red. 5849 (1988); 7 F.C.C. Red. 300
(1991); 7 F.C.C. Red. 5781 (1992), modified in part on

The Fourth Circuit affirmed, holding that the risks per-
ceived by Congress did not justify a flat ban on speech.
Specifically, the court ruled that a flat ban was not a nar-

versity. S. Rep.No. 456, 101st Cong., 2d Sess. 9 (1990). How “media
diversity” is advanced by barring telephone companies from competing
with existing cablecasters and over-the-air broadcasters was not ex-
plained.

rowly tailored way of dealing with Congress’ legitimate reg-
ulatory concerns and that permitting local telephone compa-
nies to produce programs for transmission on someone else’s
facilities was not a constitutionally adequate alternative. 42
F.3d 181.

On May 16, 1995, the FCC sought to repeal §533(b)
unilaterally by announcing that it would use its waiver
powers to permit a local telephone company to offer video
service in its local community, as long as a significant cable
competitor existed. F.C.C. Third Report and Order (May
16, 1995).° While the FCC’s newly minted reading of the
Act may ameliorate the effect of §533(b), it hardly solves
the constitutional problem. First, the new waivers are whol-
ly discretionary. Second, they come with a number of
strings. Third, they do not permit a telephone company to
purchase an existing cable system. Fourth, and most impor-
tantly, the FCC’s controversial current reading of the stat-
ute’s waiver provision is subject to change with every shift
in personnel. No long-term plans can be made in reliance
upon such a thin reed.

INTRODUCTORY STATEMENT AND
SUMMARY OF ARGUMENT

Despite the close link between speech and amplifying
technology, the precise legal relationship between the two

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969);
CBS, Inc. v. FCC, 453 U.S. 367 (1981); Ward v. Rock
Against Racism, 491 U.S. 781 (1989); Kovacs v. Cooper,
336 U.S. 77 (1949). At other times, the Court has merged
the two concepts, treating the effort to regulate amplification

technology as though it were an effort to censor speech it-
self. E.g., Saia v. New York, 334 U.S. 558 (1948); CBS,

Inc. v. Democratic Nat'l Committee, 412 U.S. 94 (1973);
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974); Pacific Gas & Electric Co v. Public Utilities
Comm'n, 475 U.S. 1 (1986). See generally Ithiel de Sola
Pool, TECHNOLOGIES OF FREEDOM (1983).

This appeal provides the Court with an opportunity to
continue the process, begun in Turner Broadcasting System,
Inc. v. FCC, 114 §.Ct. 2445 (1994), of clarifying the differ-
ing constitutional norms governing efforts to regulate speech
and amplifying technology. In Turner Broadcasting, this
Court considered the constitutionality of a congressional
statute requiring cablecasters to transmit the signals of over-
the-air broadcasters in an effort to protect broadcasters
against possible "gatekeeper" abuse. Since the precise First
Amendment impact of the statute on cablecasters was un-
clear, especially in settings where unused channel capacity
existed, and since the trial court had failed to subject the
government’s factual justification for the so-called "must
carry" rules to appropriately rigorous scrutiny, the Turner
Broadcasting Court remanded the case for additional pro-
ceedings.

Under Turner Broadcasting, when government directly
regulates the act of speech, either by imposing content-based

ictlons or by disectly implaging on the b Qndicn,
the statute must satisfy classic First Amendment scrutiny, in-
cluding a factual showing that the regulation is necessary to
advance a compelling state interest. When, however, gov-
ernment regulates amplifying technology in a manner that

5

does not unduly impinge upon the speech function, the stat-
ute must satisfy an intermediate level of scrutiny requiring a

SS ee

Applying the Turner Broadcasting principles to the
speech ban at issue in this case, we believe that the refusal
to permit local telephone companies to function as vertically
integrated speakers in their local communities is a direct
regulation of speech triggering classic First Amendment
strict scrutiny. ne it gene. Aes re aig t= oe hone
justifications offered by the government for §533(b) --
sk of ausatiitaetel Gs Eee
cannot satisfy any form of heightened First Amendment
scrutiny because they are premised on speculation and con-
jecture. Far more than guesswork is required before the
government may flatly forbid a speaker from using its own
property to communicate with willing hearers. City of
Ladue v. Gilleo, 512 U.S. __, 114 S.Ct. 2038 (1994).
Moreover, Congress has made no effort to explain why the
feared evils underlying the speech ban could not be fore-
stalled by far less onerous alternatives. Rubin v. Coors
Brewing Co., 514 U.S. __, 115 S.Ct. 1585 (1995); Sable
Communications, Inc. v. FCC, 492 U.S. 115 (1989).

Permitting local telephone companies to function as
full-fledged speakers is, however, only the beginning of this
case. The scope and extent of permissible -- perhaps re-
quired -- government regulation of a telephone company’s
monopoly control over significant amplification technology
must also be explored. In that regard, we believe that the
need for "gatekeeper" regulation of the amplification tech-
nology at issue in this case is at least as powerful as in
Turner Broadcasting, and may well call for a significant
level of regulation designed to assure fair access to the tech-
nology by competing speakers.

ARGUMENT

BANNING LOCAL TELEPHONE COMPA-
NIES FROM USING THEIR OWN PROPERTY
TO AMPLIFY THEIR SPEECH VIOLATES
THE FIRST AMENDMENT

A. The Relationship Between Speech And
Amplifying Technology

In the era before Gutenberg, little attention was paid to
the intersection of speech, law and technology, because
primitive technology and illiteracy radically con-
strained a speaker’s potential audience. With the invention
of printing’ and the emergence of vernacular language, ef-
forts to control speech predictably centered on the new tech-
nology. Not surprisingly, the first great free speech docu-
ment in the English language -- Milton’s AREOPAGETICA
(1644)* -- was a plea for unlicensed printing,’ and the first
great event in the American free speech tradition -- the 1735
acquittal of John Peter Zenger’® -- arose out of the prose-
cution of a printer.

’ Gutenberg invented movable type in about 1450 in the city of Mainz.
Louis Dudek, LITERATURE AND THE PRESS: A HISTORY OF PRINTING,
PRINTED MEDIA AND THEIR RELATIONSHIP TO LITERATURE 14 (1960).

* John Milton, COMPLETE POEMS AND MAJOR PROSE 716 (Merritt Y.
Hughes ed. 1957).

® Licensing of printing presses was initially imposed in London in 1530.
It was abandoned in 1694. See Frederick S. Siebert, FREEDOM OF THE
PRESS IN ENGLAND, 1476-1776, at 46. See also Leonard W. Levy,

EMERGENCE OF A FREE PRESS (1985); Jeffrey A. Smith, PRINTERS AND
PRESS FREEDOM (1988).

"© The Zenger trial is reported at 17 How. St. Tr. 675 (1735). James Al-
exander was the author of the words for which Zenger was tried. See
fession in Provincial New York," 94 Colum.L.Rev. 1495 (1994).

7

In Zenger’s day, as in Milton’s, the speaker and the
printer were separate entities. It was not until the invention

fonidions art carsiod oat 6 capus Goan ee te
the mass newspaper model (in which both the speaker and
amplification functions are merged in a vertically integrated
economic unit).

In the motion picture context, we used vigorous
enforcement of the anti-trust laws to prevent the emergence
of a single motion picture entity with control over both pro-
duction and amplification technology."* In the context of
the telephone and telegraph, Congress opted even more con-

'' For a survey of the evolution of print technology, see Jonathan W.
Emord, FREEDOM, TECHNOLOGY AND THE FIRST AMENDMENT (1991);
and Colin Clair, THE HISTORY OF PRINTING IN BRITAIN 205-29 (1966).

* While motion picture producers were not wholly banned from owning
theaters, they were precluded from controlling the distribution of their
motion pictures to a mass audience. See Dana E. Roof, et al., "Structur-
al Regulation of Cable Television: A Formula for Diversity,” 15 Comm.
& L. 43, 59-65 (1993), for a survey of the enforcement of anti-trust law
in the motion picture context. The critical early decision forced Thomas
Edison to dissolve his Motion Pictures Patent Company because it gave
him unfair control of the emerging technology. See also United States
v. Paramount Pictures, Inc., 1940-43 Trade Cas. (CCH) 288 (S.D. N.Y.
1940); United States v. Paramount Pictures, Inc., 66 F.Supp. 323
(S.D.N.Y. 1946), 70 F.Supp. $3 (S.D.N.Y. 1947), aff'd in part and
rev'd in part, 334 U.S. 131 (1948).

ly control over amplification technology to the Bell system
in return for a commitment to perform solely as a conduit,
not a speaker."

In the broadcast area, however, drawn by the success of
newspapers as organs of mass communication, Congress en-
couraged the merger of the speaker and amplification func-
tions in a single powerful economic entity -- the broad-
caster. National Broadcasting Co. v. United States, 319
U.S. 190 (1943)(refusing to permit local broadcast licensees
to function solely as conduits for networks).'

Most recently, amplification technology has centered on
the use of wires -- cable and telephone -- as a method of de-
livering speech to the home. The FCC initially viewed
cable transmission as merely a means of clarifying the
broadcast signal. FCC v. Midwest Video Corp., 440 U.S.
689; United States v. Midwest Video Corp., 406 U.S. 649
(1972); United States v. Southwestern Cable Co., 392 U.S.
157 (1968). Over time, however, cable broadcasters have
been recognized as fully integrated speakers, with control
over both the speaker function and the amplifying technol-
ogy. City of Los Angeles v. Preferred Communications,
Inc., 476 U.S. 488 (1986); Turner Broadcasting System, Inc.
v. FCC, 114 S.Ct. 2445.

By contrast, local telephone companies have been fro-

" See Commerce Court (Mann-Elkins) Act, ch. 309, §7, 36 Stat. 539
(1910). The rise and fall of the Bell system is chronicled in Michael K.
Kellogg, et al., FEDERAL COMMUNICATIONS LAW 5-48 (1992). See also
Robert W. Garnett, THE TELEPHONE ENTERPRISE: THE EVOLUTION OF
THE BELL SYSTEM’S HORIZONTAL STRUCTURE, 1876-1909 (1985).

4 E-g., Radio Act of 1927, §18 (currently codified as §315 of the Com-
munications Act of 1934)current version at 47 U.S.C. §315 (1988). See
FCC v. Midwest Video Corp., 440 U.S. 689, 703-04 (1979).

9

speech and amplification functions in the form of a trade-off
of monopoly control over amplification technology in return
for a promise to act as a common carrier for the speech of
others, can lead to technological stagnation and monopoly
abuse. Accordingly, we dismantled the Bell system. United
States v. American Tel. & Tel. Co., 524 F.Supp. 1336
(D.D.C. 1981); United States v. American Tel. & Tel. Co.,
552 F.Supp. 131 (D.D.C. 1982), affd mem. sub nom.
Maryland v. United States, 460 U.S. 1001 (1983). See
Temin, THE FALL OF THE BELL SYSTEM (1987).

We also learned that powerful, vertically integrated
technology pose a threat to a robust free market in ideas in
two ways. First, a vertically integrated speaker in control of
a crucial amplification technology can become so powerful
that it drowns out other voices. Second, a vertically inte-
grated speaker may abuse its "gatekeeper" control over am-
plification technology by denying access to competing
voices, or otherwise engaging in unfair competition. Ac-
cordingly, this Court has recognized that a vertically inte-

10

grated speaker may be subject to regulation to assure fair
use of its amplification technology -- but may not be subject

For example, newspapers, the original vertically inte-
grated speakers, are subject to rigorous anti-trust regulations
designed to prevent a single newspaper from exercising un-
due control over amplifying technology, but are free from
virtually all efforts to regulate content. Compare Citizen
Publishing Co. v. United States, 394 U.S. 131 (1969);
Lorain Journal Co. v. United States, 342 U.S. 143 (1951);
Associated Press v. United States, 326 U.S. 1 (1945), with
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, and
Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Similar-
ly, broadcasters, as vertically integrated speakers, are subject
to anti-trust, cross-ownership, size and coverage regulations
designed to assure fair access to the inherently scarce broad-
cast technology, without unduly burdening the broadcaster’s
speech function. National Broadcasting Co. v. United
States, 319 U.S. 190; Red Lion Broadcasting Co. v. United
States, 395 U.S. 367; FCC v. National Citizens Comm. for
Broadcasting, 436 U.S. 775 (1978). Finally, in recent years,
cablecasters have been subject to regulation of their "gate-
keeper" power over access to cable technology, while re-
maining free to function as unregulated speakers. Turner
Broadcasting System v. FCC, 114 S.Ct. 2445.

The principal issue posed by this case is whether local
telephone companies may be forbidden from joining news-
papers, broadcasters and cablecasters as vertically integrated
speakers."° In support of Congress’ refusal to permit local

'S In one sense, therefore, this case is the obverse of National Broadcast-
ing Co. v. United States, 319 U.S. 190, in which local broadcasters
sought to function solely as conduits for the speech of network speakers.
The Court ruled that the FCC was empowered to force local broadcast-

(continued...)

1]

HW
Hil
I;

-¥

tion designed to assure that other speakers enjoy fair access
to the amplification technology.

It is, of course, true that local telephone companies
exercise monopoly control over their local network of wires.

As a practical matter, however, each category of vertically
integrated speaker exercises substantial control over their re-

(1989). See Preferred Communications, Inc. v.
F.2d 1396 (9th Cir. 1985), aff'd on narrower grounds, 476 U.S. 488
(1986).

12

Broadcasters exercise government-granted exclusive control
over a finite number of wavelengths. Turner Broadcasting,
114 S.Ct. at 2457. Even newspapers, once intensely com-
petitive, increasingly operate as local monopolies.

tremely powerful speaker with so much influence over con-
tent that the free market in ideas may suffer in a given com-
munity. Presumably, that is why the waiver rules recently
promulgated by the FCC in an effort to save the statute ap-

13

government argues that, at most, a relaxed form of interme-
predictive judgments underlying section 533(b) are rea-

The telephone companies, on the other
seth, Wc 08 Ge a mes eae es Gee

" FCC Third Report and Order (May 16, 1995).

14

tion to withering judicial scrutiny. Buckley v. Valeo, 424
U.S. 1 (1976). Section 533(b) bans telephone companies,
not left-handed people, from using their property to permit
their speech to reach willing listeners. While the govern-
ment’s reasons for regulating telephone companies are, no
doubt, stronger than its reasons for regulating left-handed
people, the strict standard of constitutional review is the
same. In both settings, the government is directly inter-
fering with the desire of an identifiable category of speaker

It is, however, unnecessary to decide whether §533(b)
should be subjected to strict scrutiny, or to the somewhat
less rigorous intermediate scrutiny utilized in Turner Broad-
casting, because the government’s wholly speculative justifi-

'* The must carry rule at issue in Turner Broadcasting was designed to
protect a category of speakers by assuring speaker access to an important
amplification technology. Unlike §533(b), the must carry rule was not
designed prevent cablecasters from functioning as vertically integrated

15

cations for the speech ban fail to satisfy any level of scru-
tiny associated with modern First Amendment protection.
Although couched in the terminology of intermediate scruti-
ny, the reality of the government’s position is to ask this
Court to uphold §533(b) because it was reasonable for Con-
gress to have feared that permitting local telephone compa-
nies to speak freely over their telephone wires might lead to
attempts at cross-subsidization or sabotage."

While such a prophylactic approach to the risk of future
harm may be appropriate in other settings, the very essence
of modern First Amendment protection precludes the gov-

ernment from banning speech as a prophylactic response to
a speculative future evil. Since the government has made

'® Significantly, the Clinton Administration has taken a very different
position in other forums. For example, in a White Paper on Communi-
cation Act Reforms, the Administration stated:

Although the existing cable-telephone company cross owner-
ship restriction of the 1984 Cable Act may have been appro-
priate when enacted, today it is an unnecessary and artificial
barrier to competition in the delivery of video programming
to American consumers and to investment in local infrastruc-
ture. The Administration's proposal to remove the current re-
striction, coupled with its proposals to promote competition in
local telephone service, will allow telephone companies and
cable operations to compete in providing a full range of
video, voice and data services to the public. Such competi-
and services.

The Justice Department’s Antitrust Division has also reached the con-
clusion that §533(b) is no longer necessary as a check on the anticom-
petitive practices of local telephone companies. Chesapeake & Potomac
Telephone Company v. U.S., 42 F.3d at 188. As noted previously, the
FCC now shares this view, as well. See p.3, supra. Given this broad
administrative consensus, Congress would be hard pressed to defend the
“reasonableness” of its judgment, even if that were the relevant constitu-
tional standard.

16

no effort whatever to develop facts indicating that cross-
subsidization or sabotage was a highly likely (as opposed to
a possible) consequence of permitting local telephone com-
panies to speak freely and, since the government has made
absolutely no effort to explore methods of preventing the
feared evils without resorting to censorship, the speech ban
cannot satisfy any level of First Amendment scrutiny. Turn-
er Broadcasting System, Inc. v. FCC, 114 S.Ct. 2445; Sable
Broadcasting Communications v. FCC, 492 U.S 115 (1991).

The only standard of review capable of upholding
§533(b) would be a return to the discredited "bad tendency"
test last applied in Gitlow v. New York, 268 U.S. 652
(1925). Stripped of its rhetoric, the United States argues
that permitting local telephone companies to speak over
local telephone lines would have a "bad tendency" to en-
courage cross-subsidization or sabotage. Not since Gitlow
has a flat ban on speech been sustained on the basis on such
speculative predictive judgments.

Dilen- is tin saenieinded fee tseech eolaions of Jeo-
tices Holmes and Brandeis,” government was free to cen-
sor speech whenever the majority had a “reasonable belief"
that speech had a “bad tendency” to lead to undesirable be-
havior. E.g., Abrams v. United States, 250 U.S. 616); Git-
low v. New York, 268 U.S. 652. Justices Holmes and Bran-
deis recognized that the "bad tendency” standard was inade-
quate. The essence of modern free speech protection is a

* Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United
States, 250 U.S. 616, 627 (1919\Holmes and Brandeis dissenting);
United States ex rel. Milwaukee Soc. Democrat Publishing Co. v.
Burleson, 255 U.S. 407, 436-38 (1920\Holmes, J., dissenting); Gilbert
v. Minnesota, 254 U.S. 325, 337 (1920\Brandeis, J., dissenting); Pierce
v. United States, 252 U.S. 239, 272-73 (1920\(Holmes and Brandeis, JJ.,

dissenting); Schuyler v. United States, 251 U.S. 466, 482 (1920\Holmes
and Brandeis, JJ., dissenting); Whitney v. California, 274 U.S. 357, 372-
78 (1927\Brandeis and Holmes, JJ., concurring).

17

rejection of the bad tendency/reasonable belief test in favor
of some form of heightened judicial scrutiny of a censor’s
claim that speech should be banned because it creates a risk
of future harm.

In traditional speech contexts, the bad tendency/rational
basis test has been supplanted by the rigorous "clear and
present danger" test, requiring an almost certain causal
nexus between speech and the harm it is alleged to cause.
Brandenburg v. Ohio, 395 U.S. 444 (1969). In commercial
speech contexts, the heightened causation standard is re-
flected by the requirement that a would-be censor demon-
strate that censorship is "necessary" to "directly" and "mate-
rially" advance the asserted government interest. Jbanez v.
Florida Board of Accountancy, 512 U.S. __, 114 S.Ct. 2084
(1994); Edenfield v. Fane, 507 U.S. __, 113 S.Ct. 1792
(1993); Central Hudson Gas & Electric Corp. v. Public Svc.
Comm'n, 447 U.S. 557 (1980). In cases involving regula-
tion of a cablecaster’s "gatekeeper" powers, the heightened
causation standard requires a would-be censor to demon-
strate a significant likelihood that its predictive judgments
are correct. Turner Broadcasting System, Inc. v. FCC, 114
S.Ct. 2445.

Amici believe that the appropriate standard of review in
this case -- whatever label is used -- reasonably requires the
government to prove that the asserted evils of cross-
subsidization and sabotage are almost certain to occur unless
the speech is banned. But even if the somewhat less de-
manding standard applied in Turner Broadcasting is utilized,
the government’s unsubstantiated fears do not come close to
demonstrating a clear likelihood that censorship is necessary
to avert a serious evil. At most, the government has shown
that a temptation to engage in unlawful activities would
exist. But if government may prevent speech to avoid
temptation, nothing is left of the great Holmes/Brandeis
legacy.

18

D. Where, As Here, The Government

Grants A Speaker Monopoly Control
Over A_ Significant Amplifying

Speakers Fair Access To The Amplifying
Technology

Modern, vertically integrated speakers perform two dis-
crete tasks. First, they function as traditional speakers,
crafting a message to be communicated to an audience. In-
creasingly, though, they also function as amplifiers, acting
as conduits for their own speech, or for the speech of others.

It is, amici believe, crucial to distinguish between the
speaker and the conduit functions. Efforts to regulate the
speaker function directly implicate core First Amendment
concerns and must satisfy exacting constitutional scrutiny.
E.g., FCC v. League of Women Voters, 468 U.S. 364
(1984). Where, however, regulation of the conduit function
does not unduly impinge on the speaker function, the regu-
lation may actually advance First Amendment concerns by

assuring that diverse voices have access to modern forms of

sancleliciiea Wiha

Where, as in the newspaper context, a speaker’s control
over amplifying technology is the result of purely private
activity, the government’s power to regulate the technology
in the name of fair access is strictly circumscribed. Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
Where, as in the cable context, a speaker’s gatekeeper con-
trol over important amplification technology is, in part, the
result of significant government cooperation,” narrowly

2! Cable systems require substantial cooperation from local governments
in order to lay wires under the streets, or to erect and maintain an
above-ground wire network.

19

tailored regulation of the gatekeeper function to assure fair
access is permissible. Turner Broadcasting System, Inc. v.
FCC, 114 S.Ct. 2445. Similarly, in the broadcast context,
where control over amplifying technolegy is the result of a
government decision to vest the technology in a finite num-
ber of licensees, regulations designed to assure access to the
technology by divergent voices have been upheld. Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969); CBS, Inc.
v. FCC, 453 U.S. 367; National Broadcasting Co. v. United
States, 319 U.S. 190. In the context of local telephone
companies, where control over the amplification technology
is the result of a government awarded monopoly, amici be-
lieve that regulations needed to assure fair access by diver-
gent voices are not only permissible, they may well be man-
dated by the First Amendment.

The constitutional problem with §533(b) arises from the
fact that it is not targeted at the amplification technology
controlled by the local telephone companies but at their abil-
ity to function as First Amendment speakers. This statutory
scheme, therefore, is very different than FCC v. National
Citizens Comm. for Broadcasting, 436 U.S. 775 (1978),
which upheld a cross-ownership rule that prevented a single
speaker from gaining control of two significant forms of
amplification technology in the same locality. Section
533(b) completely prevents a local telephone company from
using its own property to speak at all in its local commu-
nity. Under the NCCB cross-ownership rules, a speaker was
forced to choose between control of two attractive amplifi-
cation technologies. Once the choice was made, however,
the speaker was free to operate as a vertically integrated
speaker without restriction. Under §533(b), on the other
hand, a local telephone company is not given a choice of
amplifying technology. Section 533(b) flatly bans any effort
to use cable or telephone wires to function as a speaker in
its local community. Thus, its constitutionality should be

20

measured by the most stringent First Amendment standards
-- a test that the government concedes cannot be met.

Once §533(b) is invalidated, though, the legal landscape
is radically altered. At that point, local telephone companies
are free to act as vertically integrated speakers, taking ad-
vantage of a government awarded monopoly over a sig-
nificant amplification technology. Under these circum-
stances, it may well be appropriate to insist that such a
government-aided speaker has a constitutional duty to make
a significant portion of the amplification technology availa-
ble to other voices, either by leasing channels, or by provid-
ing access to existing channels. See Turner Broadcasting,
114 S.Ct. 2445; of. Lebron v. National RR Passenger Corp.,
513 U.S. _, 115 S.Ct. 961 (1995). The precise nature of
the First Amendment duty of fair access imposed on a
speaker enjoying a government granted monopoly over sig-
nificant amplification technology, however, need not be re-
solved in the present case.

21

CONCLUSION

In considering the role of the First Amendment in an
era of rapidly evolving technology, we are not forced to
choose between the unpalatable extremes of broad govern- |
ment regulation over speech and virtual immunity from reg-
ulation. Instead, by precisely distinguishing between regula-
tion of the speaker and regulation of the conduit, we can
enjoy a carefully calibrated system of law that insulates
speakers from content control while encouraging a diversity
of speakers in the marketplace of ideas.

The judgment of the Fourth Circuit invalidating §533(b)
should be affirmed.

Respectfully submitted,

Burt Neuborne

(Counsel of Record)
40 Washington Square South
New York, New York 10012
(212) 998-6172

Steven R. Shapiro

American Civil Liberties Union
Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: October 18, 1995

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0606%3A22. Public record. Not legal advice.