Amicus Curiae Brief — Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission

No. 95-124; 95-227

IN THE

Supreme Court of the Gnited tates" 29 1996

October Term, 1995 CLERK

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS

CONSORTIUM, INC., ef ai.,

Petitioners,

Vs.

FEDERAL COMMUNICATIONS COMMISSION, ef ai.,

Respondents.

ALLIANCE FOR COMMUNITY MEDIA, ef ail.,

Petitioners,

VS.

FEDERAL COMMUNICATIONS COMMISSION, ef al.,

Respondents.

ON WRITS OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF TIME WARNER CABLE AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

STUART W. GOLD*

REBECCA L. CUTLER

MARC E. ACKERMAN

CRAVATH, SWAINE & MOORE

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

(212) 474-1000

Counsel for Amicus Curiae

Time Warner Cable

* Counsel of Record

January 29, 1996

~~

TABLE OF CONTENTS

ee a ee

Il.

PETITIONERS’ SECTION 10(a)

ARGUMENTS FAIL BECAUSE THEY

IGNORE THE CONSTITUTIONAL

RIGHTS OF CABLE OPERATORS,

WHICH ARE INTEGRAL TO—AND

THE STARTING POINT FOR—THE

CE ST tee EE ee ee

SECTION 10(a) DOES NOT

CONSTITUTE STATE ACTION AND

THEREFORE DOES NOT RAISE ANY

CONSTITUTIONAL ISSUES ..........

A. The State Action Inquiry Cannot Be

Ignored Merely Because Regulation Is

Ee a Se ae

B. No Provision In Section 10 Amounts

To “Significant Encouragement” So As

To Create State Action In

Ni se ih os

C. Petitioners’ Reliance On _ Federal

Preemption Of State Law To Create

State Action Is Misplaced ..........

14

19

Il.

IV.

Vi.

EVEN IF SECTION 10(a) CONSTITUTES

STATE ACTION, IT IS

CONSTITUTIONAL WHEN THE FIRST

AMENDMENT RIGHTS OF CABLE

OPERATORS ARE BALANCED

AGAINST THE ASSERTED RIGHTS OF

LEASED ACCESS PROGRAMMERS, AS

THEY MUST BE .. .cccscccscsess

SECTION 10(a) DOES NOT AUTHORIZE

A PRIOR RESTRAINT .......-....-.

LEASED ACCESS CHANNELS ARE

NOT PUBLIC FORA .....ccccccesces

IF SECTION 10(b) RENDERS SECTION

10(a) UNCONSTITUTIONAL, SECTION

10(b) SHOULD BE SEVERED .........

Comobesign ...cccccccecensene ee

20

24

25

28

30

***

TABLE OF AUTHORITIES

Cases Page(s)

Abington Sch. Dist. v. Schempp, 374

EE 22

Abood v. Detroit Bd. of Educ., 431 US.

EE 19

Alaska Airlines, Inc. v. Brock, 480 U.S.

EEE Ee 29, 30

Alexander v. United States, 113 S. Ct. 2766

EE 24

Blum v. Yaretsky, 457 U.S. 991 (1982) ...... 10, 16

Buckley v. Valeo, 424 U.S. 1 (1976) ........ 28, 29

Carlin Communications, Inc. v. Southern

Bell Tel. & Tel. Co., 802 F.2d 1352

EEE ee 17

Carroll v. Blinken, 957 F.2d 991 (2d Cir.),

cert. denied, 113 S. Ct. 300 (1992) ....... 21

City of Los Angeles v. Preferred

Communications, 476 U.S. 488 (1986) ._.. 5

Columbia Broadcasting Sys., Inc. v.

Democratic Nat'l Comm., 412 U.S. 94

TAPES oaks cc esccce cscs. 7

Communications Workers of Am. v. Beck,

ED occ cecccccccecce: 19

Cornelius v. NAACP Legal Defense &

Educ. Fund, Inc., 473 U.S. 788 (1985) .... 27

Crawford v. Board of Educ., 458 U.S. $27

8 12, 13

iV

Daniels Cablevision, Inc. v. United States,

835 F. Supp. 1 (D.D.C. 1993), appeal

DURE 6 cc etcnccaecsnesabutbiacs: l

Dial Information Servs. Corp. v.

Thornburgh, 938 F.2d 1535 (2d Cir.

1991), cert. denied, 502 U.S. 1072

GD 4.6 nccncccescuscbuantewadewes 16

Edmonson v. Leesville Concrete Co., 500

aes PD o<o'se nt aeusaeeceaens 9, 10

FCC v. Midwest Video Corp., 440 U.S. 689

SE +s cee naebelnetedunaweese eee 5, 6

Flagg Bros. v. Brooks, 436 U.S. 149 (1978). . . 16

Fort Wayne Books, Inc. v. Indiana, 489

Ge GED bo vcs tecedabbeocuccess 18

Freedman v. Maryland, 380 U.S. 51 (1965). . . 24, 25

Goldstein, v. Time Warner Cable of

New York City, 1995 WL 562182

Ge GEE ccdcuee duds daeeees hs 3

Hishon v. King & Spalding, 467 U.S. 69

GD kc ccacdtestwendeasheewmerss) 13

Hudgens v. NLRB, 424 U.S. 507 (1976) ..... 26, 27

INS v. Chadha, 462 U.S. 919 (1983) ....... 29

Jackson v. Metropolitan Edison Co., 419

Sees PEE 0 ones cunbeaecbeakucus 10, 14, 16

Katcoff v. Marsh, 775 F.2d 223 (2d Cir.

SoD cise ndenes oes ensskbéucenenea 21

Lamont v. Postmaster Gen., 381 U.S. 301

ST tcenecnaaveseeseaual neste 28

Page(s)

Larkin v. Grendel’ Den Inc., 459 U.S. 116

Dt cconsnesnthawsde adh shes chos 11, 12

Lloyd Corp.v. Tanner, 407 US. 551

DLS chkks aes edb ees kews eeu ees 26, 27

Loretto v. Teleprompter Manhanttan CATV

Corp., 458 U.S. 419 (1982) ............ 11, 12

Lugar v. Edmondson Oil Co., 457 U.S. 922

Di shheneneckiehees eke teks ie 10

Marsh v. Alabama, 326 U.S. 501 (1946) ..... 27

New York v. Ferber, 458 U.S. 747 (1982) .... 21

NLRB v. Jones & Laughlin Steel Corp.,

6 A ee 28

Norwood v. Harrison, 413 U.S. 455 (1973) . . . 13

Posadas de Puerto Rico Assocs. v. Tourism

Co. of Puerto Rico, 478 U.S. 328 (1986) . . . 15

Pruneyard Shopping Ctr v. Robins, 447

en i eS wae eee rk es 27

Railway Employes’ Dept v. Hanson, 351

eS ee ee 19, 20

Regan v. Time Inc., 468 U.S. 641 (1984) .... 28

Reitman v. Mulkey, 387 U.S. 369 (1967)... .. 13

Rendell-Baker v. Kohn, 457 U.S. 830

Dt cishcdintneeud anced dae ee.6. 10

Riley v. National Fed'n of the Blind, Inc.,

ge Ge 7

Robertson v. Seattle Audubon Soc'y, 503

EE dad dW ee ea oe 28

Page(s)

San Franciso Arts & Athletics, Inc. vy. |

United States Olympic Comm., 483 U.S.

Se GE 6 beeen bs htoeseelar< cs: 13

Schneider v. State, 308 U.S. 147 (1939) ..... 8

Skinner v. Railway Labor Executives’

Ass'n, 489 U.S. 602 (1989) ............ 17, 18,19, 20

Smith v. California, 361 U.S. 147 (1959) ....... 18

Southeastern Promotion, Lid v. Conrad, 420

EE ec eedede odio tee ca. 24

Tilton v. Richardson, 403 U.S. 672 (1971) ........ 30

Turner Broadcasting Sys., Inc. v. FCC, 114

Re RR eat eet apy 5

United States v. O'Neil, 11 F.3d 292 (ist Cir

BE a ay pe noe 15

United States Postal Service v. Council of

Greenburgh Civic Ass'ns, 453 US. 114

Ss ster ecaleaetnneedGs tote ks 26, 27

vil

Page(s)

Statutes

Cable Communications Policy Act of 1984

DGD nc cccccccndccccccccncevesseces passim

Cable Television Consumer Protection and

Competition Act of 1992 § 10 .......--+5- passim

GPUBEC. OTE .ncccccccccccccrccccwecs passim

GPUBE. OTD .nccccccvecveccvcvccwess 26

GUBE. OTA nn cccccvcvesccccvcsccces 3

GPUBE. OGD 2. nec cccccccccvcccecwess 29

Regulations and Related Materials

In re Implementation of Section 10 of the Cable

Consumer Protection and Competition Act of

1992, 8 F.C.C. Red. 998 (1993) .... 2... 15, 18, 25

Legislative History

H.R. Conf. Rep. No. 862, 102d Cong., 2d Sess.

PPP Prr rrr rrrTT i Tt tt ir 2

138 Cong. Rec. $646 (daily ed. Jan. 30,1992) .... 2, 22, 29

Other Materials

Kenneth L. Karst, Equality as a Central

Principle in the First Amendment, 43 U. Chi.

coc cnc aiadn tk 2

10A Eugene McQuillan, The Law of Municipal

Corporations (1990)... 66 eee eee 27

vill

Page(s)

Ronald D. Rotunda and John E. Nowak,

Treatise on Constitutional Law: Substance

and Procedure (2d ed. 1992) ...-. 00 eee ee y

Cass R. Sunstein, The Partial Constitution

1) coe 12

David H. Topol, Union Shops, State Action,

and the National Labor Relations Act, 101

Yale LJ. 1135 (1992) .....--- eee ee ee erees 20

Laurence H. Tribe, American Constitutional

Law (2d ed. 1988) 2.0... ee eee eee eens 10, 11

Harry H. Wellington, The Constitution, the

Labor Union, and “Government Action”, 70

Yale L.J. 345 (1961) .. 0... eee eee eee eee 20

Consent of the Parties

All petitioners and respondents in both Denver Area

Educational Telecommunications Consortium, Inc. and

American Civil Liberties Union v. F.C.C., et al., No. 95-124,

and Alliance for Community Media, et al. v. F-C.C., et all.,

No. 95-227, have consented to the filing of this brief. Their

letters of consent are being filed herewith.

Interest of Amicus Curiae

Amicus Time Warner Cable (“TWC”) is the second largest

cable system operator in the United States, with more than ten

million customers nationwide. TWC submits this brief to

provide the Court with the unique and integral perspective of

a cable operator, itself a First Amendment speaker and the key

player in the challenged statute.

This Court should uphold the constitutionality of § 10(a)

of the Cable Television Consumer Protection and Competition

Act of 1992 (“1992 Cable Act’), which restores to cable

operators some of their First Amendment rights of editorial

discretion that Congress had previously (unconstitutionally, we

believe) taken away from them under the leased access

provisions of the Cable Communications Policy Act of 1984

(“1984 Cable Act”), 47 U.S.C. § 532.

Section 612 of the 1984 Cable Act, among other things,

compelled most cable operators to set aside 10-15% of their

activated channels for commercial use by persons unaffiliated

with the operator (“leased access” channels). 47 U.S.C.

§ 532(b). Most importantly, § 612(c\2) prohibited operators

from exercising virtually any editorial control over

programming on leased access channels. /d. § 532(c\(2). These

leased access requirements clearly are in derogation of the

operator’s First Amendment rights and TWC has challenged

them as unconstitutional. See Daniels Cablevision, Inc. v.

United States, 835 F. Supp. 1 (D.D.C. 1993), appeal pending.

Through § 10(a) of the 1992 Cable Act (amending 47

U.S.C. § 532(h)), however, Congress restored a portion of the

editorial discretion that it had taken away from cable operators.

Congress recognized that by stripping cable operators of

2

virtually all editorial discretion over leased access channels,

:t had created the problem of forcing cable operators to make

sexually explicit programming widely available including to

unsuspecting subscribers and minors. Congress therefore

returned to cable operators sufficient editorial discretion to

permit them to choose not to telecast indecent programming

on such channels.!

With its editorial discretion restored to it by Section 10(a),

in July 1995, shortly after the en banc decision below, Time

Warner New York City Cable Group, one of TWC’s largest

divisions, announced a Leased Access Policy (“Policy”) for its

systems providing that “indecent” programming on leased

access channels be carried on a designated channel and only

during late-night and overnight hours, and be scrambled during

those hours. The signal would be unscrambled within 30 days

upon receipt of a subscriber’s confidential written request.

TWC made an editorial decision to implement this Policy

on its New York City systems to respond to the strong desires

of a large segment of its subscribers. For many years, one of

Time Warner’s southern Manhattan cable system’s channels—

3S—has been home to a substantial amount of sexually

explicit programming.” Channel 35 has been available on the

basic tier of service in unscrambled form on that system.

Notwithstanding the availability of parental control

mechanisms in the converter boxes used by subscribers which

permits locking out of channels, over time large numbers of

subscribers complained that they or their children had been

exposed involuntarily to indecent programming on that

138 Cong. Rec. $646 (daily ed. Jan. 30, 1992) (“This amendment

sumply gives the cable operator the nght to reyect [indecent programming]”’).

introduced by Senator Helms and supported by Senator Thurmond, which

setyhoners intimate taints the section, the Amendment was approved

snanimously by the Senate (id at 649) and unopposed by the House in

-onference (H.R. Conf. Rep. No. 862, 102nd Cong., 2d. Sess. 80 (1992)).

For instance, such programming has included graphic depictions of

ntercourse, masturbation, anal and oral sex, and advertising of phone sex

nes and escort services.

3

channel. However, TWC, believing that other subscribers

desired access to such programming, chose not to refuse to

carry such programming altogether, as it could after § 10(a)’s

effective date. Rather, the Policy fairly balanced the competing

interests of the leased access programmers, the subscribers

who did not want to receive the indecent programming on an

unscrambled basis and those subscribers who desired to

receive such programming.*

On September 20, 1995, the United States District Court

for the Southern District of New York (Sand, J.) issued a

preliminary injunction prohibiting the implementation of the

Policy, holding that the plaintiff programmers were likely to

succeed on the merits of their constitutional challenge to

§ 10(a) of the 1992 Cable Act, based substantially on the

reasons set forth in Judge Wald’s dissent. Goldstein v. Time

Warner Cable of New York City, 1995 WL 562182 (S.D.N_Y.

1995). TWC agreed, in the interests of judicial economy, not

to pursue its appeal pending resolution of this case.

In spite of Congress’ return of cable operators’ First

Amendment right of editorial discretion, therefore, TWC’s

New York City cable system remains unable to exercise that

right, and may continue to be unable to do so until this Court

upholds the constitutionality of § 10(a).

Summary of Argument

Section 10(a), 47 U.S.C. § 532(h), merely returns to cable

operators a certain degree of editorial discretion

unconstitutionally taken from them in 1984 with respect to

leased access channels (see id. § 532(c)(2)). Petitioners’

various arguments as to § 10’s alleged unconstitutionality all

suffer from the fundamental error of ignoring Congress’

original act of taking away cable operators’ First Amendment

> Channel 35 also carries substantial amounts of non-indecent

programming. Under the Policy, to receive the indecent programming on

Channel 35 a subscriber simply returns a card provided by TWC that states

that the ordering person is the subscriber and is over 18 years old. The card

is sealed, subject to confidentiality under 47 U.S.C. § 551, and indicates

only that the subscriber wants to receive all Channel 35's programming.

4

rights. This Court simply cannot begin its inquiry midstream

by looking only at the 1992 Amendments. Similarly, the Court

must reject petitioners’ invitation to analyze their claim

without regard to the constitutionally based rights of cable

operators which are integral to any analysis of § 10(a).

Section 10(a) authorizes private, not state, action and does

not affect speech in a public forum, and therefore is not

subject to First Amendment scrutiny. Contrary to petitioners’

assertion, the state action analysis cannot be bypassed, nor

state action presumed. The dissent below, determining that the

blocking requirements of § 10(b) create state action,

misinterpreted § 10 and misapplied this Court's cases

regarding the level of encouragement of action by private

entities permitted to Congress without creating state action.

Here, notwithstanding the blocking requirements in § 10(b),

§ 10(a) permits voluntary action by the cable operator and

involves no compulsion. As such, the procedural safeguards

necessary for prior restraints are unnecessary with respect to

§ 10(a). Further, if § 10(b) does create state action, the Court

is required to sever it from the rest of the statute to preserve

the statute’s constitutionality.

Even if state action is present, where the alleged “censor”

is an electronic publisher, fully protected by the First

Amendment, that publisher’s constitutional freedoms must be

considered in conjunction with any alleged infringements

resulting from the exercise of its constitutional rights. Once the

operators’ First Amendment rights are put into the balance,

there is no basis to hold that § 10(a) violates the First

Amendment.

Finally, if the amendment embodied in § 10(a) is struck

down, then the leased access statute clearly would no longer

square with the congressional objective since it would remove

more editorial discretion from cable operators than Congress

intended. That ill-fit of means and end requires that what

would be left of 47 U.S.C. § 532 be declared violative of the

First Amendment.

5

Argument

I. PETITIONERS’ SECTION 10(a) ARGUMENTS

FAIL BECAUSE THEY IGNORE THE

CONSTITUTIONAL RIGHTS CP CABLE

OPERATORS, WHICH ARE INTEGRAL TO—

AND THE STARTING POINT FOR—THE

ANALYSIS.

Petitioners’ arguments to this Court focus on the alleged

unfairness and discrimination against programmers who may

include indecent material in their programming that supposedly

would result from § 10’s implementation. While TWC agrees

that this Court must consider the effects of § 10, as did the

majority below, we submit that any analysis of § 10(a)’s

constitutionality must start with the fact that cable operators

are engaged in the constitutionally protected editorial activities

of producing programming and selecting what programming

they distribute to their subscribers.* The 1984 Cable Act, in

derogation of those First Amendment rights, required that

cable operators convert a portion of their capacity to leased

access channels and removed the operators’ editorial control

over such channels.

* This Court, as early as 1979, recognized that cable operators, in

making programming selections to create a lineup of services, are engaged

in activity protected by the First Amendment. FCC v. Midwest Video Corp.,

440 U.S. 689, 707 (1979) (“[c]able operators now share with broadcasters

a significant amount of editorial discretion regarding what their

programming will include”); City of Los Angeles v. Preferred

Communications, Inc., 476 U.S. 488, 494 (1986) (“{cJable television

partakes of some of the aspects of speech and the communication of ideas

as do the traditional enterprises of newspaper and book publishers, public

speakers, and pamphleteers”); Turner Broadcasting Sys., Inc v. FCC, 114

S. Ct. 2445, 2456 (1994) (“[c]able programmers and cable operators engage

in and transmit speech, and they are entitled to the protection of the speech

and press provisions of the First Amendment’’).

The Denver Area Educational Telecommunications Consortium and

ACLU petitioners (collectively, “ACLU petitioners”) in a bizarre twist argue

that since leased access channels are creatures of federal creation, whatever

editonal control over those channels the operator has is statutorily bestowed

by the government. See ACLU Br. 21. This again ignores that editorial

6

Petitioners’ arguments misleadingly focus on the more

narrow issue of the effect of the 1992 Amendments to the

Cable Act on leased access programmers, and ignore the larger

issue that those programmers gained access to such channel

capacity for the first time in 1984 by virtue of a statute that

restricts the First Amendment rights of cable operators. Even

if Congress could constitutionally mandate such access, the

First Amendment rights of cable operators are integral to the

analysis of § 10 and cannot be ignored, as petitioners would

have this Court do. While indecent speech may enjoy

constitutional protection, petitioners’ right of access to private

operators’ cable systems for such speech is only statutorily

based; it does not spring, as does the cable operator’s right to

exercise editorial discretion, from the Constitution.®

This Court recognized in the context of FCC-imposed

access requirements that “even when not occasioning the

displacement of alternative programming, compelling cable

operators indiscriminately to accept access programming will

interfere with their determinations regarding the total service

offering to be extended to subscribers”. Midwest Video, 440

U.S. at 707 n.17. Even more suspect is petitioners’ request that

this Court force cable operators to carry a specific type of

programming, and to do so without considering the effect on

the operators’ First Amendment nights.

Similarly skewed is petitioners’ contention that § 10

necessarily “disadvantages” those orogrammers desiring to

offer indecent programming. See Alliance Br. 22. In fact, as

to indecent programming, it merely returns such programmers

control (and ownership) over each channel starts, under the Constitution,

with the cable operator. The government then may be able to restrict that

editonal control, but it bestows nothing on the operator. Indeed, the result

that petitioners seek would turn the First Amendment on its head by leaving

it to Congress to determine when and if publishers (i.e., cable operators)

can have any First Amendment nghts whatsoever.

6 The Alliance For Community Media (“Alliance”) petitioners

acknowledge that the right they are asserting in this case is a “statutory

right” to be carried on an unrestricted basis. Alliance Br. 3.

7

to the same position as most non-leased access programmers

with regard to cable operators’ ability to exercise their

constitutionally protected free speech rights. And yet, these

leased access programmers still are in a favored position vis-a-

vis other programmers since the operators’ editorial control

remains severely curtailed as to most other programming these

same producers offer.

Il. SECTION 10(a) DOES NOT CONSTITUTE

STATE ACTION AND THEREFORE DOES NOT

RAISE ANY CONSTITUTIONAL ISSUES.

In analyzing whether § 10(a) constitutes state action, this

Court must consider that a cable operator such as TWC, a

private actor, desires to exercise its First Amendment rights

by banning or restricting certain indecent programming in

order to editorially craft its program offerings. A cable

operator’s decision to telecast or not telecast certain speech is

itself an act which is protected by the First Amendment.’

Even if it were assumed that the government wishes to

restrict or ban indecent programming on leased access

channels, a holding that § 10(a) constitutes state action truly

would be novel. Nothing in the Court’s prior decisions

supports a finding of state action where a private speaker as

an editorial matter affirmatively desires to engage in the

conduct petitioners claim the government is advocating and

which itself is constitutionally protected. Under such

circumstances, any state “encouragement” must be weighed

against the operators’ First Amendment right to decide for

themselves what they will or will not telecast. See Columbia

Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S.

94, 120 (1973) (plurality opinion joined by Rehnquist, J.,

recognizing that fundamental to the state action analysis is

whether the actor itself is a First Amendment speaker).

’ See Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781, 796-97

(1988) (“First Amendment guarantees ‘freedom of speech,’ a term

necessarily comprising the decision of both what to say and what not to

say”)

8

A. The State Action Inquiry Cannot Be Ignored

Merely Because Regulation Is Involved.

Petitioners contend that the state action issue poses no

obstacle for this Court’s review of § 10’s constitutionality

because the government is choosing which speech will be

subject to the cable operators’ exercise of their free speech

rights. On one hand, the ACLU petitioners argue that the state

action analysis simply can be skipped. ACLU Br. 19. The

Alliance petitioners, on the other hand, propose that a finding

of state action in this case is automatic by the mere “creation

of the content-based law itself”. Alliance Br. 22.° This is just

wrong. Not even the dissent below suggested that the state

action analysis could be either disposed of or its outcome

assumed.

Petitioners claim that, as the courts must decide the

constitutionality of every “legislative abridgment of [First

Amendment] rights”, the Court of Appeals in this case

“disobeyed that mandate” by determining that it need not

undergo a First Amendment analysis. ACLU Br. 19, quoting

Schneider v. New Jersey, 308 U.S. 147, 161 (1939). Even if

petitioners are correct, there has been no such abridgement

here.’ The programmers’ original right of access was based on

a statutory grant by Congress—there was, and still is, no Firs:

8 Amicus American Booksellers for Free Expression agree that the

fact that a plaintiff is “challenging the statute asd regulations

themselves . . . does not end the inquiry” regarding whether the private

party should be considered a state actor. Am. Booksellers Br. 9. Rather, the

“private party’s actions” under the statute challenged must be analyzed. /d.

% The petitioners grievously misapply this Court's language in

Schneider. While it is true that the Court held in that case that where a First

Amendment violation is alleged “the cours should be astute to examine the

effect of the challenged legislation” (is. (emphasis added)), the Court did

not hold, as petitioners argue, that such an allegation requires a court to

“decide its constitutionality” in <veTy case. See ACLU Br. 19 Br. 19 (emphasis

added). Rather, an examinatica of the effect of the challenged legislation

necessarily must include te question of whether the Constituton is

implicated by that legislacon. Whether there is state action is mtegral to that

analysis in the First Amendment context.

9

Amendment entitlement to such access. Congress’ removal of

that mandated access does not curtail First Amendment

rights—it recognizes them (albeit in a limited fashion) by

returning editorial discretion to the cable operator. The analysis

therefore must focus on whether the actor who is allegedly

“silencing” certain speech is acting for the state when it

decides, if it does, to deny access to indecent programming. '°

Petitioners’ argument that the state action question arises

only in cases involving an “individual citizen” that “feels that

his [or her) freedoms or rights have been violated by the

actions of another”'' also misses the mark. Whom the plaintiff

chooses to sue, whether the individual actor or the government

through a facial challenge to the statute, simply does not

determine whether the constitutional analysis is undertaken.

For instance, petitioners cite Edmonson v. Leesville Concrete

Co., 500 U.S. 614 (1991). ACLU Br. 19 n.24. In that case. this

Court, in deciding whether the alleged racially discriminatory

use of preemptory challenges in civil cases amounted to state

action, first analyzed whether the act in question was created

by the government. This Court found that the alleged

discrimination would not have been possible without the

government's creation of preemptory challenges. /d._ at 620-21

(“there is no constitutional obligation to allow (preemptory

challenges]”). Here, the cable operators’ underlying right not

to carry programming if it so desires derives directly from the

Constitution, not from § 10(a}—they need legislative

State action was clear—egislanon either prohibited or compelled specific

behavior, resulting in the infringement of free speech

‘' ACLU Br. 19, 0.24; Alliance Br. 22, quoting Ronald D. Rotunda

& John E. Nowak, Treatise on Constitutional Law Substance and

Procedure § 16.1, at 524 (2d ed. 1992)

10

authorization only to countermand the legislative blocking of

the exercise of that constitutional nght in the first place.

Petitioners and amici attempt to distinguish several cases

cited by the majority below finding no state action on the

ground that the challenges in those cases were not direct

challenges to any statutes or administrative regulations. See

Rendell-Baker v. Kohn, 457 U.S. 830 (1982), Jackson v.

Metropolitan Edison Co., 419 U.S. 345 (1974), Blum v.

Yaretsky, 457 U.S. 991 (1982). In each of those cases,

however, because there was no authorizing statute, the state

action inquiry necessarily revolved around the private actor’s

conduct, and no statute could have been facially challenged.

See, e.g., Rendell-Baker, 457 U.S. at 841 (“the decisions to

discharge the petitioners were not compelled or even

influenced by any state regulation”). Nothing in this Court's

to be conducted in those cases if a legislative enactment

authorizing the private action at issue was instead challenged

directly. Indeed, the Court’s emphasis on the importance of the

analysis of the actions of the private individuals suggests that

such an inquiry is always central, regardless of whether such

action is challenged directly or as the logical consequence of

an authorizing statute. ld

Petitioners and amici cite a snippet from Laurence Tribe's

constitutional law treatise which allegedly supports their

argument that a direct challenge to a statute obviates the need

for a “formal inquiry” into the state action issue. See Alliance

Br. 21; Am. Booksellers Br. 6-7. The full sentence from

Tribe’s treatise, however, makes clear that state action is

“obvious” only where the challenged statute is facially

discriminatory, “such as a law mandating racial segregation of

'2 Similar to Leesville Concrete, the state action inquiry in Luger v

Edmondson Oil Co., Inc., 457 U.S. 922 (1982), did not turn on whether the

plaunnff facially challenged the statute authonzing preyudgment attachment.

or sued the individual attaching the subject property. In fact, the main

inquiry im that case involved whether Secnon 1983's requirement of “under

color of” state law differed from the state action requirement. /d ai 926-35

public schools”. Laurence H. Tribe, American Constitutional

Law § 18-1, at 1688 (2d. ed. 1988). This is not such a case.

After all, as discussed above, § 10(a) merely authorizes cable

operators to engage in their own constititionally protected

activity that Congress had previously denied them. As Tribe

goes on to discuss, one of the primary purposes of the state

action doctrine is to carve out an arena where the Constitution

may not infringe on individual freedoms:

“(B)y exempting private action from the reach of the

Constitution’s prohibitions, [the state action requirement]

stops the Constitution short of preempting individual

liberty—of denying to individuals the freedom to make

certain choices, such as choices of the persons with whom

they will associate. Such freedom is basic under any

conception of liberty, but it would be lost if individuals

had to conform their conduct to the Constitution’s

demands.” Jd. § 18-2, at 1691.

The importance of keeping an individual freedom exempt from

constitutional scrutiny is heightened where, as here, that

freedom itself specifically is constitutionally protected. The

finding of state action, therefore, cannot simply be presumed

as petitioners suggest. |?

‘> The ACLU petimoners’ reliance on Loretiov Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982) and Larkin v. Grendel's Den

Inc., 459 U.S. 116 (1982), as cases in which statutes were “subjected .

to scrutiny even where no harm would have occurred unless a third party

did something that it was authorized (but not compelled) to do” (ACLU Br

at 17), is similarly without merit. As the Court below recognized, state

action existed in those cases because the government gave the private

parties powers that traditionally had been exclusively that of the

government. App. |2a-13a (citations to “App__a™ herein refer to the

appendix to the Petition for a Writ of Certiorari in No. 95-124). In Loretto.

this Court analyzed whether a New York law requiring a landlord to permit

a cable company to install its facilines on rental property constituted a

“taking” under the Fifth Amendment and, recognizing the landlord's

constitunonally protected property nghts. this Court determined that the

Statute was a taking 458 U.S. at 423, 441. The ACLU penitioners attempt

to analogize the conduct of the cable operator in Loretto to that of the cabie

operator pursuant to § 10. as the cable operator im Loreto was not

rei

12

Petitioners’ citation to Sunstein’s The Partial Constitution

(1993) similarly does not support their contention that the state

action analysis is not necessary here. To the contrary, Sunstein

consistently points out the necessity of the state action inquiry,

emphasizing that “the First Amendment is aimed only at

governmental action, and that private conduct raises no

constitutional question”. Jd. at 204. Moreover, according to

Sunstein, the expression of ideas by private actors in the

marketplace does not raise any constitutional concerns. Rather,

it is the “‘regulation’ of ‘the market’ that is problematic”. /d.

Under this formulation, Congress’ original “regulation” of

leased access in the 1984 Cable Act is constitutionally suspect.

Its “deregulation” of speech, albeit only in part, through

§ 10(a) therefore necessarily lessens (but far from eliminates)

the constitutional problems inherent in the initial regulation

and cannot itself be unconstitutional. '4

compelled, but only authorized, to seek access to the landlord’s property.

This analogy fails because the cable operator in Loretio was asserung 2

idenadhidntnemnatnadatedieatdiendearen

to issue liquor licenses. See 459 U.S. at 127. Because that power was placed

pugunnan on tend snes nates gues tien @ tate te Oe

suanhted @ Gauls madetiae and iano

“In short, having gone beyond the requirements of the Federal

te

13

Petitioners’ attempt to analogize the instant case to one in

which Congress carves out an exception to Title VII to allow

private employers to discriminate against persons of a

particular race is similarly misguided. See Alliance Br. 23.

Petitioners’ contention that such a “statute would arguably

‘restore’ to employers the pre-existing right to base

employment decisions on discriminatory grounds” (id)

conveniently overlooks the essential distinction that employers

have no constitutional right to so discriminate. See Hishon v.

King & Spalding, 467 U.S. 69, 78 (1984) (rejecting claim that

application of Title VII would infringe constitutional rights of

freedom of association because “‘invidious private

discrimination ... has never been accorded affirmative

constitutional protections”, {quoting Norwood v. Harrison,

413 U.S. 455, 470 (1973))).'° Here, on the other hand, cable

operators do have a constitutionally protected right to refrain

from engaging in certain types of speech, including indecent

speech. See supra n.7.

Finally, petitioners contend that § 10(a) is not a restoration

of cable operators’ First Amendment rights of editorial

Constitution, the State was free to return in part to the standard

prevailing generally throughout the United States. It could have

conformed its law to the Federal Constitution in every respect. That it

chose to pull back only in part . . . most assuredly does not render the

Proposition unconstitutional on its face.” Jd at 542.

That said, petitioners’ claim that amy partial restoration to cable operators

of their editorial discretion, e.g., vis-a-vis “the speech of A frican- Americans

or socialists or speech opposing reduction of welfare grants” (ACLU Br.

22; see also Alliance Br. 23) would be facially violative of the First

Amendment 1s unsupported and insupportable. Indeed, any restoration of

cable operators’ editorial discretion must be analyzed, as discussed herein.

within the context of the operators’ First Amendment rights (as opposed to

programmers’ statutorily granted access rights), and therefore is

presumpuvely constitutional.

‘S Petitioners” reliance on Reitman v. Mulkey, 387 U.S. 369 (1967)

and San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.,

483 U.S. 522 (1987) (see ACLU Br. 20), fails for the same reason. In both

cases there was no federal constitutional nght to engage in the private

conduct authonzed under the statute

14

discretion because when the 1984 Cable Act was passed, many

cable operators had already entered into local franchise

agreements prohibiting cable operators from exercising such

editorial discretion. See Alliance Br. 5, 23; ACLU Br. 3. While

that argument is flawed even as to public access channels, it

cannot be made as to commercial leased access channels,

which did not exist prior to the 1984 Cable Act.'® Any

channels over which a cable operator relinquished its editorial

control through the franchise process were public access

channels. The 10-15% of a cable system’s channel capacity

that today must be dedicated to commercial leased access use

were under the complete editorial control of cable operators

prior to 1984.

B. No Provision In Section 10 Amounts To

“Significant Encouragement” So As To Create

State Action In Section 10(a).

A finding of state action is justified when the private entity

performs a public function, or when the actions of the private

entity evidence a sufficiently close nexus between the

government and that entity to attribute the actions of the entity

to the government itself. Jackson v. Metropolitan Edison Co.,

419 US. 345, 351-52 (1974). Where, as here, neither

justification is present, no finding of state action is warranted.

Petitioners, as well as Judge Wald in dissent below, argue

for a finding of state action based on the flawed notion that,

through § 10, the government coerces cable operators into

taking “adverse action” against indecent programming.

See App. 46a-49a; Alliance Br. 28-30; ACLU Br. 24.

Section 10 simply does not command or otherwise coerce that

result, but leaves the cable operator to choose from at least

'© Petitioners’ statement that “access channels” have been dedicated

for 25 years (Alliance Br. 4; ACLU Br. 2), is but ome example of

petitioners’ and amici’s blending of “public” and “leased” channels into

“access” channels when convenient to their argument. While TWC primarily

comments herein on the constitutionality of leased access requirements, we

urge this Court to analyze public and leased access channels separately to

the extent that their characteristics do in fact differ

15

three options— it may prohibit indecent programming under

§ 10(a), it may choose to institute on its system the FCC

regulations regarding indecent programming as issued under

§ 10(b), or it may provide such indecent programming on non-

access channels, where it has the discretion to telecast such

programming as it sees fit (the “middle ground” petitioners

claim does not exist, see Alliance Br. 29).'7 The very

existence of these choices obliterates petitioners’ argument that

Congress has chosen how to treat indecent programming, and

makes clear the error of Judge Wald’s proposition that “the

§§ 10(a) and (b) option is no different in its effect” from a

formulation requiring a cable operator either to ban indecent

programming or to block it pursuant to the government’s

directives (App. 48a).

While petitioners claim operators are hostile to indecent

" Indeed, TWC in its Policy, which was not pursuant to § 10(b),

exercised a fourth option. The Policy did not implement the total ban

Rico, 478 U.S. 328, 345-46 (1986); United States v. O'Neil, 11 F.3d 292,

296-97 (ist Cir. 1993) (recognizing that “({tJhe principle that the grant of

@ greater power includes the grant of a lesser power is a bit of common

sense that has been recognized in virtually every legal code from time

immemorial” and applying principle in criminal law context, citing

Posadas). Although the second sentence of § 532(h) does use the word

“prohibiting” in describing a policy on indecent programming, when read

in conjunction with the “subject to conditions” language of the first

sentence, the statute is at least ambiguous as to whether cable operators are

free under § 10(a) voluntarily to enact policies which do less than prohibit

indecent programming. As the FCC recognized, the overall section and

congressional intent appear to have the objective of permitting a cable

operator voluntanly to condition the offering of indecent programming if

it does not ban such programming.

16

programming on leased access and will disadvantage such

programming “while retaining this profitable income source

on their own channels” (Alliance Br. 43), they really are

complaining that other programmers have created more

attractive programming that cable operators are anxious to

program without coercion.

Similarly, even if the presence of § 10(b) provides some

incentive for cable operators to establish their own policy to

prohibit indecent programming, that is not enough to find state

action by “significant encouragement”. Such an argument was

rejected in Blum v. Yaretsky, where the Court held that

decisions to transfer patients on Medicaid from state-

subsidized nursing homes to lower level facilities were private

actions of the medical staff rather than state action,

notwithstanding that government regulations made such

transfer possible and, in fact, encouraged the nursing homes

to transfer patients to less expensive facilities een

appropriate. 457 U.S. 991, 1007-08, 1008 n.18 (1982).'8

too with § 10. Nothing in §§ 10(a) or (b) dictates the ton

and § 10(b) does not “dominate” ithe operators’ decision-

making process. See App. 22a- 23a,!9

‘8 See also Flagg Bros. v. Brooks, 436 U.S. 149, 164-66 (1978)

(holding that enactment of statute enabling private sale of goods by

warehouseman was not “authorization” or “encouragement” sufficient to

constitute state action); Jackson, 419 U.S. at 357 (“[rjespondent’s exercise

of the choice allowed by state law where the initiative comes from it and

not from the State, does not make its action in doing so ‘state action”); id.

at 350 (state regulations even if “extensive and detailed” did not make

utility’s action state action).

‘9 Similarly, in Dial Information Servs. Corp. v. Thornburgh, 938

F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992), the Second

Circuit upheld a statute requiring telephone companies that provide billing

services for dial-a-porn providers not to transmit dial-a-porn unless the

customer specifically requested access (or “presubscribed”). That court

found no state action, emphasizing that the statute “does not require the

telephone company to implement the presubscription method of billing,

unless the company voluntarily has chosen to provide billing services for

providers”. /d. at 1543. Nor did the Court find that the statute compelled

the telephone company to refuse to provide billing services to dial-a-porn

~ - — A, a Dn ten

17

The criteria to be applied is not governmentally dictated,

but rather left to the operators’ considerations of the desires

of its subscribers and its views of optimum programming mix.

The fact that Congress defined the area of programming for

which it was returning editorial control does not create state

action since without some delineation of the sphere in which

the cable operator could exercise its discretion, the return of

editorial control could not effectively be accomplished. That

is not the kind of “involvement” that can create state action.”

Petitioners also attempt to compare the facts in the instant

case with those in Skinner v. Railway Labor Executives’ Ass'n,

489 U.S. 602 (1989), in order to support their overly

aggressive assertion that anything “more than just a ‘passive

position’ toward the challenged” private action constitutes state

action. Alliance Br. 27-28; see also id. at 32 (Skinner has

“strikingly similar facts”); ACLU Br. 24. This comparison falls

quite short. Skinner involved the issue of whether the Fourth

Amendment is applicable to actions of private parties, as a

search and seizure can be unconstitutional only if conducted

by the state or a private party acting as “an instrument or

agent of the Government”. 489 U.S. at 614. This Court in

Skinner found “clear indices of the Government’s

encouragement, endorsement, and participation” in the testing

of railway workers for drugs and alcohol. /d. at 615-16. These

“specific features” included the Federal Railroad

providers.

20 Thus, the argument of amicus American Booksellers that state

action exists here because the “standard” for decision-making is “established

by the state” is incorrect. See Am. Booksellers Br. 9-10 n.16. The state is

merely defining the realm over which private actors, cable operators, have

the ability to make private decisions. The finding in B/um that there was

no state action because the decisions to transfer or discharge patients turn

on “judgments made by private parties” (457 U.S. at 1008), therefore, is

directly analogous to the instant case. See Carlin Communications. Inc. v.

Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1357-61 (11th Cir. 1986)

(regulator's study and explicit approval of public utility’s policy of banning

indecent messages did not make that policy state action, where decision as

to which messages were indecent was made by utility).

18

Administration’s actual participation in the testing of railroad

employees with the right to receive test samples and results.

Id at 615. Here, not only is there absolutely no similarity on

the facts of the two cases, but § 10(a)’s return to cable

operators of the ability to exercise editorial control over

indecent programming does not even approach the high degree

of government participation involved in Skinner.

Petitioners also argue that, by removing cable operators’

immunity from liability for telecasting obscene programming

on leased access channels, § 10(d) forces operators to ban

indecent speech out of an excess of caution. See Alliance

Br. 29-30; ACLU Br. 5. While TWC contends that § 10(d)

places unconstitutional burdens on cable operators where they

are forced to deal with program providers on leased access,

petitioners nonetheless overstate the effect of § 10(d) vis-a-vis

state action. Here, the FCC has determined that operators may

pre-screen programs to limit their liability under § 10(a). First

Report and Order 4 43 n.39, App. 15la. The FCC also notes

that: (i) consistent with Smith v. California, 361 U.S. 147

(1959), operators who do not prescreen, and thus lack actual

knowledge of the contents of a program, should be immune

from prosecution for violation of obscenity laws (First Report

and Order § 43 n.39, App. 15la-152a); and (ii) cable operators

may also avoid liability under § 10(b) by relying on the

certification of the programmers (id. § 43, App. 15la- 152a).??

*! Petitioner's claim that state action exists because the FCC will

adjudicate disputes over whether certain programming 1s indecent (Alliance

Br. 31-32) simply is not applicable to § 10(a), as such a dispute resolution

mechanism is provided only for disputes arising under § 10(b). First Report

and Order § 75, App. 167a-168a.

22 Petitioners ignore this Court’s holding in Fort Wayne Books, Inc. v.

Indiana, 489 U.S. 46 (1989). In that case, the Court noted that any

obscenity statute will “have some inhibitory effect on the dissemination of

material not obscene’’. /d. at 60. However, it squarely held that “(t]he mere

assertion of some possible self-censorship resulting from a statute is not

enough to render {it}; unconstitutional”. /d. Petitioners also contradict

themse!ves by arguing both that cable operators choose to carry indecent

programming on non-access channels (see Alliance Br. 43), and that cable

6 Pe

19

At bottom, nothing in § 10 significantly encourages the

cable operator to ban indecent programming. Moreover, the

fact that Senator Helms and others in Congress may have

counted on cable operators’ inclination to restrict or ban

indecent programming on leased access if given back their

editorial control is not a basis for finding state action. After

all, the converging of a private actor’s objective with that of

Congress, if not achieved by congressional coercion or direct

government participation (which has not happened here), does

not trigger state action, especially where the private actor is

exercising rights protected by the First Amendment.

C. Petitioners’ Reliance On Federal Preemption Of

State Law To Create State Action Is Misplaced.

Petitioners rely almost exclusively on Railway Employes’

Dept v. Hanson, 351 U.S. 225 (1956), for the proposition that

State action inheres where a federal statute preempts state law.

Alliance Br. 24-27; ACLU Br. 23-24. Hanson was a labor case

that simply does not support a theory that preemption per se

equals state action.

operators uniformly will “take the safe route and simply ban all materials”

that cannot be certified as “decent” (see Alliance Br. 30).

3 In Hanson, non-union employees brought an action against a

railroad company and labor organizations to enjoin the application and

enforcement of a union shop agreement. The ACLU petitioners’ contention

that this Court “subsequently and repeatedly [has] reaffirmed Hanson s

rationale” is simply wrong. See ACLU Br. 23 n.30, citing Communications

Workers of Am. v. Beck, 487 U.S. 735, 761 (1988), and Abood v. Detroit

Bd. of Educ., 431 U.S. 209, 218 n.12 (1977). Neither Beck nor Abood

commented on the validity of Hanson's rationale with regard to the state

action issue, but instead made passing reference to the Court’s state action

analysis in Hanson in dicta. See Beck, 487 U.S. at 761 (noting petitioner's

reliance on Hanson and concluding that “[w]e need not decide whether the

exercise of rights permitted, though not compelled, by [the statute at issue]

involves state action”); Abood, 431 U.S. at 218 n.12 (the Court merely

descnbed the state action analysis in dicta, but neither commented on its

validity nor deemed it necessary for its holding).

Neither is the Skinner decision supportive of petitioners’ “preemption

creates state action” theory. A close reading of Skinner evidences that the

Court’s determination of state action in that case was made, as it must be,

20

First, the theory that federal preemption of state law alone

can create state action is itself unsound. After all,

“ijt is surely not the case that any time the federal

government preempts state law, state action exists. As

Professor Wellington explained ... , if the preemption

theory were adopted, ‘[it would mean] that all private

action taken under the authority of federal legislation that

occupies a field by that token alone becomes governmental

action.”

Second, in Hanson, the “source of the power” to invade

“private rights” was the federal statute. 351 U.S. at 232. Here,

the true source of a cable operator’s power to restrict indecent

programming is its private, constitutionally recognized nght

of editorial discretion, not § 10(a). Third, neither Hanson nor

Skinner has been applied outside the labor context to find state

action, and there is no reason to do so in this case.

Ill. EVEN IF SECTION 10(a) CONSTITUTES STATE

ACTION, IT IS CONSTITUTIONAL WHEN THE

FIRST AMENDMENT RIGHTS OF CABLE

OPERATORS ARE BALANCED AGAINST THE

ASSERTED RIGHTS OF LEASED ACCESS

PROGRAMMERS, AS THEY MUST BE.

Even if § 10(a) is found to constitute state action (or a

in view of all the circumstances. Skinner, 489 U.S. at 614. The

“circumstances” in that case were numerous, including regulations that

superseded collective bargaining agreements and prohibited the railroad

from divesting itself by contract of the authority to test employees. /d.

at 615. In addition, the regulations mandated compliance by employees. /d.

Clearly, then, federal preemption of state law in Skinner was merely one

factor considered by the Court in its analysis of whether there was sufficient

““Government[] encouragement, endorsement, and participation” to implicate

constitutional safeguards. /d. at 615-16. There is no authority for a finding

of state action here where federal preemption is the on/y factor.

4 David H. Topol, Union Shops, State Action, and the National

Labor Relations Act, 101 Yale L.J. 1135, 1149 (1992) (quoting Harry H.

Wellington, The Constitution, the Labor Union, and “Governmental

Action”, 70 Yale L.J. 345, 356-57 (1961)).

te te

21

First Amendment analysis of that provision is otherwise

required), and further assuming that mandatory leased access

itself is not unconstitutional as a violation of cable operators’

First Amendment rights, that would not justify the application

of the “strict scrutiny” test. A different test should be applied

where, as here, the “state actor” is a First Amendment speaker,

such as a cable operator, which itself independently desires

(and but for government interference once had the right) to

take the action at issue. This would be consistent with the

recognition, adopted in the Establishment Clause area, that “a

test which may be reasonable in one context may be wholly

inappropriate in another”. Katcoff v. Marsh, 755 F.2d 223, 233

(2d Cir. 1985). Under such circumstances, the Court must

balance the cable operator’s First Amendment rights, the

government’s interests and whatever rights leased access

programmers have once granted access onto cable systems. A

finding of state action neither strips the cable operator of its

First Amendment rights, nor removes those rights from the

analysis of its actions upon leased access programming.”

This approach of balancing competing interests is no less

valid here than when weighing pure governmental action

against a First Amendment speaker’s nghts, an approach which

lies at the very heart of First Amendment jurisprudence. See,

e.g., New York v. Ferber, 458 U.S. 747, 764 (1982) (balancing

competing interests of government restricting child

pornography with First Amendment speaker’s nght of

expression); Carroll v. Blinken, 957 F.2d 991, 999-1002 (2d

Cir.) (court needed to balance the First Amendment rights of

students not to underwrite speech of others with university’s

First Amendment interests in fostering a “marketplace of

ideas” on its campus), cert. denied, 113 S. Ct. 300 (1992). ad

25 To the extent that the Government is considered to have conceded

(either in this Court or below) that § 10(a) is unconstitutional if there is

state action, TWC strongly disagrees for the reasons set forth herein.

26 This corresponds with the notion adopted in the First Amendment

context that the Free Exercise Clause and the Establishment Clause, while

potentially at odds, must be reconciled in practice. See Katcoff. 755 F.2d

22

Where there is an independent First Amendment basis for

the operator’s action, the challenged statute should be upheld

even if not the least restrictive manner of accomplishing its

objective. This certainly should be so where, as here, the

statute allows the operator the flexibility to avoid unduly

burdening the programmers’ speech. See n.17, supra.

Section 10(a) permits TWC to exercise its First

Amendment nght (restrained by Congress in 1984) to package

its programming in the best way it sees fit and to respond to

its subscribers’ concerns by limiting the exposure of certain

subscribers—unsuspecting adults and minors—to indecent

programming, while being responsive to subscribers who want

access to such programming. Petitioners offer no evidence

refuting that indecent programming on, access channels is

troublesome to large numbers of viewers.”’ Section 10(a) also

furthers the government’s interest in addressing the problem

of indecent programming available in an unrestricted manner

on leased access channels. Weighed against these interests are

programmers’ statutory rights to access granted by Congress,

not the Constitution, in derogation of TWC’s First Amendment

rights.

Even if petitioners are found to be asserting First

Amendment nghts, it simply cannot be true that program

providers and viewers desiring to have access to plaintiffs’

programming via cable have greater rights than the cable

at 234 n.4(““[t]hese two proscriptions are to be read together, and in light

of the single end which they are designed to serve’” (quoting Abington Sch.

Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring))).

“Just as it is a function of the judiciary to strike the balance between the

competing claims of the free exercise clause and the establishment clause

of the first amendment, so it is the court’s responsibility to strike the

balance between competing first amendment issues in the media-access

cases”. Kenneth L. Karst, Equality as a Central Principle in the First

Amendment, 43 U. Chi. L. Rev. 20, 48 (1975) (footnote omitted).

2” For example, during the Senate floor debate on § 10, a letter was

read into the record from a cable subscriber complaining that she and her

daughter stumbled upon a “couple engaging in oral sex” on an access

channel in New York. 138 Cong. Rec. $646 (daily ed. Jan. 30, 1992).

23

operators (and those of their subscribers) who want to reject

indecent programming. See App. | 3a (recognizing this case as

“a battle for supremacy between the asserted rights of private

persons’). Section 10(a) allows cable operators to adopt an

approach such as TWC’s Policy, which is clearly a reasonable

means of balancing the competing interests of its First

Amendment rights with the interests of programmers and both

groups of subscribers. Indeed, by placing the decision on

indecent programming back in the cable operators’ hands, the

government has removed itself from the process—in practical

effect the least intrusive approach.

Permitting cable operators to refuse to telecast indecent

programming altogether, or to telecast it only under restrictions

the cable operator finds acceptable, does not restrict First

Amendment rights; it recognizes them.2* The balancing of

interests here must be resolved in favor of § 10(a)’s

constitutionality. And the cable operators’ approach, if

somehow unreasonable, might be redressed, as to leased access

channels for example, by an action under § 612(d)—not by

striking down a statute that itself lessens restrictions on the

cable operators’ First Amendment rights.

8 Cable operators have always had the unfettered ability to make

decisions regarding programming carried on non-public, non-leased access

channels. Section 10 gives back that same ability to operators with regard

to indecent programmung on leased access channels. Further, the record only

indicates that to the extent there is arguably indecent programming on non-

access channels, the signals on those channels are scrambled unless

separately ordered (like Playboy and Showtme), thereby already providing

some measure of protection against exposure of minors and unsuspecting

subscnbers to such programming Adult pay-per-view channels also are

scrambled and must be separately ordered—with parents having the option

of a private code to gain access to such films. Section 10, therefore, does

not disadvantage indecent leased access programming: it merely takes away

the unfair advantage granted such programming by Congress under the | 984

Cable Act to the detriment of operators’ First Amendment nghts.

24

IV. SECTION 10(a) DOES NOT AUTHORIZE A

PRIOR RESTRAINT.

Petitioners’ argument that § 10(a) fails because it creates

a censorship scheme amounting to a prior restraint without

procedural safeguards also suffers from fatal defects.

First, as discussed above, § 10(a) merely authorizes private

action. Cable operators who take action pursuant to § 10(a) are

not state actors and, as a result, are not subject to procedural

due process requirements. Second, and related, the action

permitted by § 10(a) does not amount to a “prior restraint”.

“The term prior restraint is used ‘to describe administrative

and judicial orders forbidding certain communications when

issued in advance of the time that such communications are

to occur’.” Alexander v. United States, 113 S. Ct. 2766, 2771

(1993) (citation omitted). Obviously, a decision by a cable

operator to ban indecent programming amounts to neither an

“admunistrative” nor “judicial order{]”, and therefore would not

qualify as a “prior restraint”. Third, in all the cases relied upon

by petitioners, the government was undertaking censorial

powers.°” In this case, a cable operator who chooses to ban

or restrict indecent programming on its leased access channels

is not engaging in an act of censorship, but is instead

exercising its own First Amendment right of editorial

discretion. Petitioners can point to no case where the alleged

restraint itself was the exercise of free speech rights.

It is for this reason that, even if § 10(a) is found to

constitute state action, this Court still should not find that it

9 Compare Freedman v. Maryland, 380 U.S. 51, 52 n.1 and n2

(1965) (State Board of Censors granted statutory authority to “disapprove”

films which were obscene or which “tend, in the judgment of the Board,

to debase or corrupt morals or incite others to crimes” and making it

unlawful to“sell, lease, lend, exhibit or use” any film not approved and

licensed by the Board); Southeastern Promotion, Lid. v. Conrad, 420 US.

546, 548 n.2, 554 (1975) (board confirmed by the city’s board of

commissioners and whose chairman was, by ordinance, the city’s

commussioner of public utilines, grounds and buildings, was empowered by

mumicipal ordinance to grant or deny use of municipal theater based on its

review of the content of the proposed production).

~-

et ee Oot °

25

allows an impermissible prior restraint. When the government

acts as a censor, the First Amendment nghts of only one party,

the party that seeks to present the censored speech, are at

issue. The dispute is over whether the speech at issue is

protected by the First Amendment. In that case, adequate

protection of the speaker's rights is ensured by requiring

procedural safeguards such as prompt judicial review where

the government has the burden of showing that the censored

speech is unprotected. See Freedman, 380 U.S. at 57-59.

Under § 10(a), however, the decision whether or not to

present indecent speech is made by someone who is also a

protected speaker. Therefore, the requirements set out in

Freedman should be read less stringently. Under 47 U.S.C.

§ 532(d), a programmer has the right to bring suit in district

court if it disagrees with an operator’s decision not to provide

it with leased access channel capacity. If the court finds that

the programmer was improperly denied access, it may order

the cable operator to provide it. /d.; see also First Report and

Order 4 31 and n.28, App. 144a-145a. Thus, Congress has put

in place a procedural framework balancing the interests of

operator and programmer and protecting the programmer’s

statutory right to access.

In any event, § 10(a) cannot be a prior restraint on its face,

at least where programmers receive advance notice of a cable

operator’s refusal to telecast indecent material, thereby

permitting an order to show cause to be brought challenging

that decision. In that case, the spirit of Freedman is satisfied.

The situation therefore simply is not analogous to one in

which the government acts as a censor, and the Court should

not require procedures which ignore the First Amendment nght

of the cable operator to use editorial discretion.

V. LEASED ACCESS CHANNELS ARE NOT

PUBLIC FORA.

There is simply no justification for a finding that leased

access channels constitute public fora. Indeed, petitioners argue

only that public access channels constitute public fora and do

not even attempt to apply this argument to leased access

26

channels.*° Further, Judge Wald in dissent below did not rely

on the public forum doctrine. See App. 53a-54a.

A cable system’s channels plainly constitute the operator’s

private property. These systems were built at an enormous

capital expense and with the expectation that cable operators

would have the discretion to select the programming to

provide subscribers on those channels. The 1984 Cable Act

removed that discretion (unconstitutionally, we believe). That

does not turn those channels into public fora.

Moreover, Congress has specified that “[a}]ny cable system

shall not be subject to regulation as a common carrier or utility

by reason of providing any cable service”. 47 U.S.C. § 541(c).

There is no support, therefore, for the argument that cable

operators are mere conduits of programming on leased access

channels and that those channels are government property.>!

As the majority below correctly noted, under the public

forum doctrine “[s}tate action is present because the property

is the governments and the government is doing the

restricting”. App. 28a (emphasis added). The argument that

public forum principles can apply to private property dedicated

to public use has been rejected by this Court. In Lloyd Corp. v.

Tanner, 407 U.S. 551 (1972), the Court, in holding that a

shopping center may pruaibit the distribution of handbills,

emphasized that “property [does not] lose its private character

merely because the public is generally invited to use it for

designated purposes” and that “[t]he Constitution by no means

requires such an attenuated doctrine of dedication of private

property to public use”. /d. at 569. Similarly, in Hudgens v.

NLRB, 424 U.S. 507 (1976), the Court held that striking

workers had no night to picket in a shopping center, as that

shopping center’s private property was not converted into a

od The arguments set forth herein that leased access channels are not

public fora apply with equal force to public access channels.

3! In United States Postal Service v. Council of Greenburgh Civic

Ass ‘ns, 453 U.S. 114 (1981), the Court rejected the notion that “simply

because an instrumentality ‘is used for the communication of ideas or

information,’ it thereby becomes a public forum”. /d. at 130 n.6.

27

public forum merely by the public’ s use of it. Jd. at 519-21,

citing Lloyd, 407 U.S. at 567- 70.*?

Indeed, the government may assert complete control over

private property without converting that property into a public

forum. In Greenburgh, 453 U.S. at 123, 128, this Court found

that a home mailbox, supplied and paid for by the homeowner,

but controlled and regulated by the government, did not

constitute a public forum. The passing reference in

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473

U.S. 788, 801 (1985), to “private property dedicated to public

use” is merely dictum, and in view of this Court’s other

holdings does not support the use of such a doctrine. Nor is

Marsh v. Alabama, 326 U.S. 501 (1946), applicable here. In

that case, the “company town”, although privately owned, had

assumed “all of the attributes of a state-created municipality”.

Lloyd, 407 U.S. at 569, citing Marsh, 326 U.S. $01.7

32° The Court’s decision in Pruneyard Shopping Ctr. v. Robins, 447

U.S. 74 (1980), is inapplicable here. The issue in that case was the

interpretation of a state constitutional provision which specifically

authorized more expansive free speech protection than the Federal

Constitution. There the Court merely held that the state may require more

expansive protection without violating the free speech nights of the owner

of the property. Justice Powell, concurring, wrote that “I do not interpret

our decision today as a blanket approval for state efforts to transform

privately owned commercial property into public forums”. /d. at 101.

33 Petitioners claim that public access (not leased access) channels

have been designated as public fora by the government in exchange for the

use of easements on public nghts of way. They also claim that sidewalks

and streets are private property to support their argument that private

property can and should be considered public fora. See Alliance Br. 34-35;

New York City petitioners Br. 18-21. First, all media gain some form of

public benefit (magazines receive reduced postage rates, newspapers use

vending machines on government land) yet retain their private property

status. The presence of newspaper vending machines on city streets does

not turn newspapers into public fora. Moreover, no other private

communications media has ever been tured into a public forum by

government designation as a price for use of public property. Second, while

the abutting landowner may be (but is not always) deemed by the

municipality to own the fee in the public street, that fee is not voluntarily

assumed, but imposed merely because of the geographical proximity of the

28

VL. IF SECTION 10(b) RENDERS SECTION 10(a)

UNCONSTITUTIONAL, SECTION 10(b) SHOULD

BE SEVERED.

If this Court concludes that the interplay between §§ 10(a)

and 10(b) supplies the state action element rendering § 10(a)

subject to strict scrutiny and a finding of unconstitutionality

then § 10(b) can—and must—be severed to preserve the

remainder.

Courts have an obligation to interpret statutes so as to

maintain their constitutionality. Robertson v. Seattle Audubon

Soc 'y, 503 U.S. 429, 441 (1992) (citing NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 30 (1937)). As a result,

when faced with a constitutionally suspect provision of a

Statute:

“[A] court should refrain from invalidating more of the

Statute than is necessary.... ‘[W]henever an act of

Congress contains unobjectionable provisions separable

from those found to be unconstitutional, it is the duty of

this court to so declare, and to maintain the act in so far

as it is valid’”. Regan v. Time Inc., 468 U.S. 641, 652

(1984) (plurality opinion; citation omitted).

landowner. See 10A Eugene McQuillan, Law of Municipal Corporations

§ 30.32 at 281 (1990). In any event, the street is public before the

landowner obtains the fee in it.

34 While we do not discuss the constitutionality of § 10(b) herein, we

vehemently disagree with petitioners’ reliance on Lamont v. Postmaster

Gen., 381 U.S. 301, 305 (1965). See Alliance Br 48 n.36; ACLU Br. 43-45.

That case simply is not analogous to the matter at hand. First, every

subscriber has to let the cable operator know what services they are

ordering, whether it is Playboy, an adult pay-per-view movie, or the Disney

Channel and a record is made of that selection (which must be kept

confidential). A written request to receive all leased access programming

is no different, and certainly informing a cable operator in 1995 that one

wishes to receive such programming cannot validly be compared to an

“official act” of informing the Federal Government in 1965 that one wishes

to receive Communist propaganda that the government says “contains the

seeds of treason”. 381 U.S. at 307. See also App. 39a, n.23. Further,

because any inhibitory effect is “highly speculative”, Buckley v. Valeo, 424

U.S. 1, 69-70 (1976), there is no First Amendment violation.

29

The invalid portions of a statute are to be severed

“*fujniess it is evident that the legislature would not have

enacted those provisions which are within its power,

independently of that which is not’”. Buckley v. Valeo, 424

U.S. 1, 108 (1976); accord INS v. Chadha, 462 U.S. 919, 931-

32 (1983). Where, as here (47 U.S.C. § 608), a statute includes

a severability provision, the presence of such a clause “gives

rise to a presumption that Congress did not intend the validity

of the Act as a whole, or of any part of the Act, to depend on

whether [the suspect provision of the Act] was invalid”.

Chadha, 462 U.S. at 932; see Alaska Airlines, Inc. v. Brock,

480 U.S. 678, 686 (1987).

Even without this presumption in favor of severability,

both the structure of the statute and its legislative history

support a ruling of severability. First, Congress enacted

§ 10(a) as an amendment to § 612(h) and added § 10(b) as a

new § 612(j). This indicates Congress’ intent that the two

provisions work separately. Second, § 10(a) does not rely on

anything in § 10(b) for its operation. “A provision is further

presumed severable if what remains after severance ‘is fully

operative as a law’”’. Chadha, 462 U.S. at 934. Third, Senator

Helms clearly envisioned a legislative scheme which would

make it possible for cable operators voluntarily to enact

policies regarding indecent programming. Thus, Congress’

intent was to “give[] cable operators the legal nght to make

[the] decision” about indecent programming on leased access

channels. 138 Cong. Rec. $646 (daily ed. Jan. 30, 1992).

Taken together, these factors demonstrate that severability is

not only a proper solution, but the proper solution.*°

In this case, if this Court determines that the presence of

§ 10(b) renders § 10(a) unconstitutional, and § 10(b) is severed

from the remainder of the statute, § 10(a) would be clearly

constitutional. See App. 78a, 88a. Thus, because “(t]he court

.. . has an obligation to save rather than destroy as much of

the statute as is constitutional”, App. 85a (Rogers, J.,

*° The same analysis (and conclusion) is warranted if this Court

decides that the presence of § 10(d) renders § 10(a) unconstitutional.

30

concurring in part and dissenting in part (citing Tilton vy,

Richardson, 403 U.S. 672, 684 (1971))), this Court must sever

§ 10(b), to the extent it is found to be unconstitutional, and

allow § 10(a), a constitutionally permissible provision, to

stand.

If, however, this Court finds that § 10(b) is integral to § 10

and that § 10(a) cannot stand alone, then the entire leased

access provision should fall. Should the Court strike down

§ 10 as unconstitutional, it must inquire “whether the statute

(here, 47 U.S.C. § 532] will function in a manner consistent

with the intent of Congress”. Alaska Airlines, 480 U.S. at 685.

It no longer advances the government's interest in programmer

diversity to require unrestricted access to indecent

programming when Congress itself has clearly indicated it

does not intend for such programming to fall within the

purview of government mandated access.

Clearly, if § 10(a) is removed from the leased access

section, the remaining provisions would not be tailored to

effect what Congress believed to be legitimate government

interests. Indeed, if the statute were used to compel carriage

of indecent programming, as plaintiffs contend, it would flatly

contravene congressional intent. 47 U.S.C. § 532, therefore,

must be struck down if the § 10 amendments are removed.

Conclusion

For the foregoing reasons, the decision of the Court of

Appeals with respect to § 10(a) of the 1992 Cable Act should

be affirmed.

January 29, 1996.

Respectfully submitted,

STUART W. GOLD*

REBECCA L. CUTLER

MARC E. ACKERMAN

Counsel for CRAVATH, SWAINE & MOORE

Amicus Curiae Worldwide Plaza

Time Warner Cable 825 Eighth Avenue

New York, NY 10019

* Counsel of Record (212) 474-1000