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

Supreme Court, U.S

PiLeE D

DEC 27 WY

H

0

Nos. 95-124; 95-22

In THE

Supreme Court of the

Octoper Term, 1995

CLERK

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS

CONSORTIUM, et ano.,

Petitioners,

VS.

FEDERAL COMMUNICATIONS COMMISSION, et ano.,

Respondents.

ALLIANCE FOR COMMUNITY MEDIA, et ai.,

Petitioners,

VS.

FEDERAL COMMUNICATIONS COMMisSION, et ano.,

Respondents.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION, COUNCIL FOR PERIODICAL DISTRIBUTORS

ASSOCIATIONS, FREEDOM TO READ FOUNDATION, INTERACTIVE

DIGITAL SOFTWARE ASSOCIATION, INTERNATIONAL PERIODICAL

DISTRIBUTORS ASSOCIATION, MAGAZINE PUBLISHERS OF AMERICA,

INC., MOTION PICTURE ASSOCIATION OF AMERICA, NATIONAL

ASSOCIATION OF COLLEGE STORES, INC., NATIONAL ASSOCIATION

OF RECORDING MERCHANDISERS, PERIODICAL AND BOOK

ASSOCIATION OF AMERICA, INC., PUBLISHERS MARKETING

ASSOCIATION, RECORDING INDUSTRY ASSOCIATION OF AMERICA,

INC., AND VIDEO SOFTWARE DEALERS ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

MICHAEL A. BAMBERGER

Sonnenschein Nath & Rosenthal

Of Counsel: 1221 Avenue of the Americas

Margaret Jacobs New York, New York 10020

(212) 768-6700

Counsel of Record for Amici Curiae

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TABLE OF CONTENTS

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I. THE FEDERAL STATUTE AND

REGULATIONS CHALLENGED IN

THIS ACTION OBVIOUSLY

CONSTITUTE STATE ACTION ............:ccccsccsssssesresees 5

Il. IF THE LEGISLATIVE AND

REGULATORY PROVISION AUTHORIZES

OR DIRECTS THE STANDARD AND

SUBSTANCE OF PRIVATE ACTIONS

IMPACTING CONSTITUTIONALLY

PROTECTED RIGHTS, IT IS

NECESSARILY SUBJECT TO

CONSTITUTIONAL SCRUTINY ...............::csccscsssssseeees 9

II]. CONTENT-BASED RESTRICTIONS ON,

OR IMPEDIMENTS TO ACCESS TO,

CONSTITUTIONALLY-PROTECTED

MATERIALS CANNOT BE VALIDATED

ON THE BASIS THAT THE MATERIAL

WILL BE ULTIMATELY AVAILABLE.................... 13

CRAP EAMMIIUNEDS cccepnecscmiassnennvssciinisunsintesininnmbsevndenininamdsanaaiinal 17

FFP EIPCNEEE, covceccsccesensserssssnnesnensnssiinticneetiiiannmmimeeanniiaieniiiid A-1

Soe ee os

TABLE OF AUTHORITIES

Cases: Page

Alliance for Community Media v. F.C.C., 56 F.3d

SII TIE Laisa acsanpatnenbeossdnteneesasesowccooece passim

American Booksellers Ass'n, Inc. v. Hudnut, 771

F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001

in ERR IER TST 5 2

American Booksellers Ass'n, Inc. v. McAuliffe, 533

EEE EID svnenscnsecoeceseneecesovevsesevevsesscees 3

American Booksellers Ass'n v. Strobel, 617 F. Supp.

a. sasesssnnsscoccnnes ia

American Booksellers Ass'n v. Webb, 643 F. Supp.

a csesenesnsenassncons 16

Blum v. Yaretsky, 457 U.S. 991 (1982) ..0..........eee 7, 9-10

Clark v. Community for Creative Non-Violence, 468

a setppwsnenescsces 16

Davis-Kidd Booksellers Inc. v. McWherter, 866

a cssnemngapenerensnnnenn 3

Elrod v. Burns, 427 U.S. 347 (1976)..............cccccccceceeeeeeeeeeees 1S

Jackson v. Metropolitan Edison Co., 419 U.S. 345

ia icienilnandnsovenccosores 8, 10

Lamont v. Postmaster General of United States, 381

a os sa cmemnonecessoencenns 16

Leech v. American Booksellers Ass'n, Inc., 582

a ee 3

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

ara sas cnasiensenescosnonessosscconnesnes —

TABLE OF AUTHORITIES - Continued

Cases: Page

Moose Lodge No. 107 v. Irvis, 407 US. 163

TEED Sienctssnistniocioncmscsctmseniesesentinisuiumstisiteisessseseeseee.... 10

Rendell-Baker v. Kohn, 457 US. 8W™

ITI eeltidatendttnhatansinbtaieniaiddeiisite neomeeeareneenie’ 5, 4, 10

Sable Communications of California, Inc. v. F.C in

| ‘2 ES sorte —

Schad v. Borough of Mount Ephraim, 452 US. 6}

I —

Schneider v. State, 0% US. 147 (1999) | 16

Turner Broadcasting - Inc. v. FCC. 148

(tae s 13

Video Software Dealers Ass'n vy. Webster, 968 F 2d

a —_ 3

Village Books v. Bellingham, C88-1470 (WD. Wash

i | 3

Virginia Pharmacy Bd. v. Virginia Citizens Consumer

Council, Inc., 425 US. 748 (1976). ts 2

Virginia v. American Booksellers Ass'n, Inc.. 484

ET aeumebiai — 2

STATUTES

138 Cong. Rec. $646 (daily ed. Jan 30,1992) —t™” a |

47 CFR. $§ 76.701, 76.702... eC

iv

TABLE OF AUTHORITIES - Continued

Statutes: Page

Cable Television Consumer Protection and

Competition Act (“Cable Television Act”) Pub.

L. No. 102-385, 106 Stat. 1460, 1486 (to be

codified at 47 U.S.C. §§ 531, 532(h), 532)

MISCELLANEOUS

Laurence H. Tribe, American Constitutional Law

§ 18-1 at 1688 (2d ed. DOI on ncccceccccnssccssssescsnsseesonneensenensconnss 7

Nos. 95-124; 95-227

In THe

Supreme Court of the United States

Octoser Term, 1995

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS

CONSORTIUM, et ano.,

Petitioners,

VS.

FEDERAL COMMUNICATIONS COMMISSION, et ano.,

Respondents

ALLIANCE FOR COMMUNITY MEDIA, et al.

Petitioners,

VS.

FEDERAL COMMUNICATIONS COMMISSION, et ano.,

Respondents

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION, COUNCIL FOR PERIODICAL DISTRIBUTORS

ASSOCIATIONS, FREEDOM TO READ FOUNDATION,

INTERACTIVE DIGITAL SOFTWARE ASSOCIATION,

INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION,

MAGAZINE PUBLISHERS OF AMERICA, INC., MOTION PICTURE

ASSOCIATION OF AMERICA, NATIONAL ASSOCIATION OF

COLLEGE STORES, INC., NATIONAL ASSOCIATION

OF RECORDING MERCHANDISERS, PERIODICAL AND BOOK

ASSOCIATION OF AMERICA, INC., PUBLISHERS MARKETING

ASSOCIATION, RECORDING INDUSTRY ASSOCIATION OF

AMERICA, INC., AND VIDEO SOFTWARE DEALERS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

— ee —_

STATEMENT

The American Booksellers Foundation for Free

Expression, Council for Periodical Distributors Associations,

Freedom to Read Foundation, Interactive Digital Software

Association, International Periodical Distributors Association,

Magazine Publishers of America, Inc., Motion Picture

Association of America, National Association of College Stores,

Inc., National Association of Recording Merchandisers,

Periodical and Book Association of America, Inc., Publishers

Marketing Association, Recording Industry Association of

America, Inc., and Video Software Dealers Association submit

this joint amicus brief urging reversal of the decision below. '

This brief is submitted upon the written consents of counsel to

both petitioners and respondents, which are submitted herewith.

INTEREST OF THE AMICI

Amici's members (hereinafter “amici’) publish, produce,

distribute and sell books, magazines, videos, sound recordings,

motion pictures, interactive games and printed materials of all

types, including those that are scholarly, literary, artistic,

scientific and entertaining. Libraries and librarians represented

by the Freedom to Read Foundation provide such materials to

readers and viewers. Amici, mainstream providers of speech in

a variety of forums and media, are concerned by the holding of

the Court below. In a world with rapidly developing and

integrating media technology, governmentally imposed

standards of speech in one medium automatically impact every

other medium. Amici submit this brief to highlight the very real

danger of allowing the government to enact a legislative scheme

targeting currently unpopular speech and to avoid constitutional!

scrutiny simply by cloaking the scheme in “permissive” language.

When the government creates a detailed scheme to restrict

, A description of the amici is attached as Appendix A.

to

disfavored but constitutionally-protected speech, it violates the

rights not only of the restricted creators and distributors, but also

of mainstream consumers who depend upon a wide variety of .

materials and who would rather discriminate in their consumption

themselves than allow the government to dictate those choices.”

The regulatory scheme at issue in this proceeding could

potentially be applied to ban or severely restrict access to a

variety of educational programming, such as programs related

to sex education, AIDS education or abortion, or programs

devoted to reading from the great books, based on the content

of those materials. The regulations compel a cable operator to

ban or severely restrict the viewing of any program “that the

cable operator reasonably believes describes or depicts sexual

or excretory activities or organs in a patently offensive manner

as measured by contemporary community standards.” 47

U.S.C. § 532(h)(2). Almost any description of a sexually

oriented nature could, therefore, be banned or segregated under

this definition. Programming that merely serves to educate the

public on matters connected to sexuality might be banned, not

because it is obscene, but because a cable operator is fearful that

it might be offensive to some of its customers. For example, a

cable operator might ban or segregate all programming that

“describes” the availability of birth control or abortion to young

people. In the end, the restrictions on speech imposed by the

regulatory scheme will eliminate or chill important speech on

matters of public concern.

In the past amici have brought numerous actions in both

federal and state courts, to assert the unconstitutionality of

invalid laws. See, e.g., Virginia v. American Booksellers Ass'n,

Inc., 484 U.S. 383 (1988); American Booksellers Ass'n, Inc. v.

. The Court has assiduously protected the “right to receive

information and ideas.” See, e.g., Virginia Pharmacy Bd. v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976).

Hudnut, 77\ F.2d 323 (7th Cir. 1985), aff'd 475 U.S. 1001

(1986); Video Software Dealers Ass'n v. Webster, 968 F.2d 684

(8th Cir. 1992); Village Books v. Bellingham, C88-1470(W.D.

Wash. Feb. 9, 1989); American Booksellers Ass'n, Inc. v.

McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981); Davis-Kidd

Booksellers Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993):

Leech v. American Booksellers Ass'n, Inc., 582 S.W.2d 738

(Tenn. 1979).

Amici believe that the definition of “state action” applied

by the court below is incorrect and, if sustained, would permit

legislatures to enact cleverly drafted statutes which could erode

the scope of presently accepted First Amendment rights.

Similarly, the assumption by the majority below that

governmentally-imposed impediments to access to

constitutionally-protected materials do not run afoul of the First

Amendment as long as such materials are eventually available

to persons desiring them also is incorrect and also endangers

First Amendment rights.

The resolution of these issues will determine the scope

of legislation affecting the First Amendment rights of amici in

the future.

SUMMARY OF ARGUMENT

The majority of the District of Columbia Court of

Appeals, sitting in banc, held that the challenged provisions of

the Cable Television Consumer Protection and Competition

Act, a federal statute, did not, for the most part, constitute

“state action” and, to the extent that they did constitute state

action, did not violate the First Amendment because the

provisions were not an unconstitutional restriction on First

Amendment rights. In reaching its decision, the Court of

Appeals misapplied the relevant precedents of this Court and, in

so doing, jeopardized the First Amendment rights of the amici.

EE

se

By holding that the facially permissive nature of the challenged

provisions removes them from the category of state action, the

Court below avoided the task of analyzing whether the provisions

represented a prohibited infringement of First Amendment

rights. Such a cursory dismissal of constitutional scrutiny

would allow a state or the federal government to pass legislation

affecting almost any area of First Amendment rights but to

avoid judicial review by structuring it to appear optional. The

legislature must not be permitted to authorize or direct private

action affecting First Amendment rights in such a manncr, and

thereby bring in through the back door what it is not permitted

to bring in through the front.’

The federal statutes and regulations challenged in this

Court obviously constitute state action since they are statutes

and regulations passed by and enforced by the United States

government. The inquiry does not end because petitioners

passed the state action threshold. In this case, the actions that

would be taken by the cable operators restricting access to

constitutionally-protected materials under the challenged statute

are subject to constitutional scrutiny since they are causally

related to the challenged state action, having been authorized or

directed by it. The statute targets and regulates a special

category of speech; therefore, strict scrutiny must be applied.

Finally, since content-based restrictions on, or impediments to,

access toconstitutionally protected materials cannot be validated

3

Indeed, passage of section 10 is a prime example of tailoring of

statutory language to circumvent constitutional problems. (Senator Helms:

“Under my amendment, cable operators have the right to reject such filthy

programming . .. . [T}here is no constitutional problem with this amendment

because this is not governmental action. It is an action taken by a private

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

on the basis that the material will be ultimately available, the

decision of the court below must be reversed.‘

ARGUMENT

I. THE FEDERAL STATUTE AND REGULA-

TIONS CHALLENGED IN THIS ACTION

OBVIOUSLY CONSTITUTE STATE ACTION.

Since the First Amendment addresses only

governmentally created restrictions, petitioners’ success in this

action depends upon a threshold determination that the above

provisions constitute state action; only then need the Court

subject those provisions to constitutional scrutiny. See, e.g.,

Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982).

Petitioners in this case challenge as violative of the First

Amendment a governmental scheme under the Cable Television

Consumer Protection and Competition Act (“Cable Television

Act”), Pub.L. No. 102-385, 106 Stat. 1460, 1486 (to be codified

at 47 U.S.C. §§ 531,532(h), 532(j) and 558), and the regulations

issued thereunder, 47 C.F.R. §§ 76.701, 76.702. The statutory

and regulatory scheme as to leased access channels includes two

elements of content-based restriction in an “either-or” scenario:

l. Elimination of all descriptions or

depictions of sexually related material deemed patently

offensive by the cable operator; or

2. Segregation of such material to one or

more designated "indecent" channels after 30 days prior

written request by the proposed viewer.

a

The amici are in agreement with the legal and policy arguments set

forth by the Association of American Publishers in its amicus brief and

write separately here to highlight additional legal and policy arguments of

special concern to amici.

There is no alternative of non-action or free distribution of

constitutionally-protected materials. A cable operator must

either ban or block the material, despite the fact that it is by

definition constitutionally-protected.

The section 10 provisions and accompanying FCC

regulations are a blatant government attempt to chill, if not

eliminate, a constitutionally-protected category of speech. The

government dictates a set of options detrimental! to a single

category of protected speech, defines the contours of the targeted

speech, requires certification of that speech by programmers

and then regulates disputes arising from that certification process.°

Moreover, the cable operator must carry such programs if they

are not banned or segregated as patently offensive descriptions

of sexuality. The government thus compels the cable operator

to air such programs or ban them based on government-

mandated restrictions. The airing of programs on cable is thus

directly regulated and mandated by the government.

This case is a direct challenge of a Congressional statute

and its implementing regulations themselves, rather than of

actions taken by a private party and then attributed to the State.°

Thus it stands in marked contrast to the precedents upon which

this Court’s state action doctrine has been built. In their atiack

on section 10 of the Cable Television Act, petitioners have not

challenged a cable operator’s decision to ban “indecent”

programming under one of section 10's provisions; rather they

have challenged the action of Congress in passing those

provisions, and the actions of the FCC in implementing them.

As Professor Tribe has aptly remarked, “[i}f litigants challenge

’ Pub. L. No. 102-385, § 10, 106 Stat. 1460, 1486 (codified at 47

U.S.C. §§ 531, 532(h), 532(j) and 558; 47 C.F.R. §§ 76.701, 76.702.

. Amici do not challenge, and in fact strongly support, the right of

creators. distributors and retailers of First Amendment-protected materials

to select what they create, distribute or sell, free of governmental restrictions.

a federal or state statute ... in a case where the validity of the

Statute is necessarily implicated, state action is obvious, and no

formal inquiry into the matter is needed.” Laurence H. Tribe.

American Constitutional Law § 18-1 at 1688 (2ded. 1988).’ Cf.

The First Amendment to the U.S. Constitution (“Congress shall

make no law .. . .”) (emphasis added).

The majority below missed this crucial distinction when

it preliminarily queried whether the actions of cable operators

under section 10 “may be attributed to the government.”* The

majority was thus able to rely, in support of its position, on an

inapposite line of cases in which this Court denied governmental

constitutional responsibility for decisions made by private

actors. In Blum v. Yaretsky, for example,’ a group of Medicaid

patients who had been discharged or transferred from their

nursing homes challenged decisions by the nursing homes to

discharge or transfer them without notice or the opportunity for

a hearing. They brought the action against state officials

responsible for administering the State Medicaid programs,

arguing state action on the grounds that the State had

“affirmatively command{ed]” the summary discharge or transfer

of Medicaid patients who were thought to be inappropriately

placed in their nursing facilities.'° In finding that there had been

no state action, the Court focused on the fact that the nursing

home patients had not challenged “particular state regulations

or procedures,”'' highlighting both that there was no direct

challenge of regulations themselves and that the patients could

’ In the dissent below, Judge Wald also protested that “it strikes me

as a wholly untenable proposition that a statute duly enacted by the

Congress of the United States could be anything other than state action.”

Alliance for Community Media v. F.C.C., 56 F.3d 105, 132, fn. 4 (D.C. Cir.

1995) (Wald, J., dissenting).

. 56 F.3d at 113.

457 U.S. 991 (1982).

” 457 US. at 1005.

point to no regulation which directed the basis of the doctors’

decisions to transfer.

Similarly, in Jackson v. Metropolitan Edison Co.,'* and

in Rendell-Baker v. Kohn,'* both cited by the majority in support

of its finding that sections 10(a) and 10(c) do not constitute state

action,'* the parties bringing suit did not challenge State statutes

or regulations, but rather private actions which were not related

to any relevant regulations.

In Jackson v. Metropolitan Edison Co., the Court found

no state action when a customer brought suit against a privately

owned utility company for terminating her electrical services.

The Court there determined that the procedure for termination

of electrical services was not a practice addressed by state

regulation, but was merely approved by the state utility

commission as part of its regulatory duties. 419 U.S. at 357.

In Rendell-Baker v. Kohn, the Court found no state

action where a group of teachers sued the school for violation of

their constitutional rights in connection with their discharges,

reasoning that “the decisions to discharge the petitioners were

not compelled or even influenced by any state regulation.” 457

U.S. at 841. There again, the teachers did not challenge any

specific state regulations, and, indeed, the Court noted that the

state showed relatively little interest in regulating personnel

decisions. /bid.

In all of those cases, to the extent that the Court found no

state action, it did so on the basis of avoiding “imposing on the

r 457 U.S. at 1003.

12 419 U.S. 345 (1974).

13 457 U.S. 830 (1982).

Since the majority reached petitioners’ First Amendment arguments

regarding section 10(b), apparently they found state action in so far as that

provision standing alone was concerned.

State, its agencies or officials, responsibility for conduct for

which they cannot fairly be blamed.”'* There is no occasion for

such an inquiry when, as here, Congressional action is at stake.'°

Il. IF THE LEGISLATIVE AND REGULATORY

PROVISION AUTHORIZES OR DIRECTS THE

STANDARD AND SUBSTANCE OF PRIVATE

ACTIONS IMPACTING CONSTITUTIONALLY

PROTECTED RIGHTS, IT IS NECESSARILY

SUBJECT TO CONSTITUTIONAL SCRUTINY.

Having determined that, by challenging the statute and

regulations themselves, petitioners have passed the state action

threshold does not end the inquiry, however. In order to invoke

constitutional scrutiny, the private party’s actions which restrict

constitutionally-protected materials must be authorized or

directed by the challenged state action. Had the utility customer

in Jackson challenged a statute regulating the utility, or had the

teachers in Rendell-Baker challenged statutes regulating their

school, even though the statutes would meet the test of constituting

“state action,” the parties were not able to point to specific

5 Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).

7” Even if the Court were to analyze the state action issue as though

this action were a challenge to the actions of the cable operators themselves

(which it is not), there would be ample ground for finding state action

according to the above precedents. If a cable operator were to ban or block

programming as a result of section 10, it would be basing its decision

directly on a statute which targets a specific category of speech for special

unfavorable treatment and for which the standard for that decision, the

definition of indecency, is established by the state.

In Blum, the Court based its decision on the fact that the regulations at issue

set no standard for its discharge or transfer decisions (“those decisions

(Footnote continued on next page.)

10

regulations having a causal relationship to the decisions to shut

off the electricity or to discharge the teachers."’

Under this standard, even the relevant Medicaid

provisions in Blum are not causally connected to the doctors’

decisions to transfer or discharge patients. The provisions in

question did require doctors to assess the medical needs of each

Medicaid recipient and to place the patient in the appropriate

facility, witha resulting adjustment of Medicaid reimbursement.

However, as the Court argued in reaching its decision, the

decisions of the doctors depended upon independent medical

judgments “made by private parties according to professional

standards that are not established by the State.” 457 U.S. at

1008.

(Footnote continued from previous page.)

ultimately turn on medical judgments made by private parties according to

professional standards that are not established by the State.” Blum, 457 U.S.

at 1008. In Jackson and Rendell-Baker, the Court argued that the government

could not be implicated where there was no state regulation specifically

addressing the actions taken by the private parties. Jackson, 419 U.S. at 357,

Rendell-Baker, 457 U.S. at 841.

In passing section 10 of the Cable Television Act, the government, by

providing for special and unfavorable treatment for programming that

describes or depicts sexually oriented material and establishing the definition

of such material, has implicated itself in that private action. Under this

analysis, any private decision authorized by a statute which targets a

specific category of speech for specific restrictive treatment should constitute

state action and, as it is content-based, should be subjected to strict scrutiny.

" The same reasoning explains the decision in Moose Lodge No. 107

v. Irvis, 407 U.S. 163 (1972), where a black guest of a patron of a private

club who was refused service sued for injunctive relief, citing state liquor

board licensing provisions as the basis for his state action theory. Had the

guest challenged the licensing provisions directly, he still would have failed

the second test, as the plaintiff could not point to any provision having a

causal relationship to the club’s decision to deny him service.

In contrast, sections 10(a), 10(b) and 10(c) of the Cable

Television Act define a specific procedure for a specific category

of speech. The provisions mandate that indecent speech on

leased access cable television be either banned or segregated

and blocked, with access curtailed for up to 30 days, and

authorize the banning of such speech, and only such speech, on

public access cable television. The standard for judging whether

the speech qualifies as indecent is established by statute and

FCC regulations. The statutory scheme at issue here directly

and substantively authorizes or directs the decisions of cable

operators in determining their treatment of indecent speech. '*

The majority opinion below suggests however that there

is no First Amendment issue since 10(a) and 10(c) are not

mandatory. This fails to see the forest for the trees. A

hypothetical may be helpful. Let us assume that Congress

passes a law containing a provision which authorizes bookstores

to ban all books critical of the government, and the provision

contains a definition of that category of books. If the bookstore

owner chooses not to ban the books, another provision requires

the bookstore owner to place them in a special room presided

over by a guard to whom a special identification card must be

presented upon entrance. It takes thirty days to obtain the card,

and the statute provides that bookstores cannot release the

names of the cardholders.

Such a statute would clearly be unconstitutional.

However, if one adopts the majority’s analysis, upon

= We have analyzed 10(a) and 10(b) together as a compulsory

provision regarding indecent programming on leased access channels. The

provisions’ mandatory nature make it an easier case. However, the courts

should subject any targeting of a specific category of speech for unfavorable

treatment to strict scrutiny. While some permissive statutes may then pass

constitutional scrutiny by the very fact that they are permissive and not

compulsory in nature, the historical back ground of cable television regulation

and the other parts of the present regulatory scheme dictate otherwise as to

§ 10(c).

12

constitutional challenge of the statute itself, the majority below

would isolate the first provision, characterizing it as permissive

in nature, would find no state action, and thereby avoid

constitutional scrutiny. The majority would then argue that as

long as a reader could ultimately buy the book and the seller

ultimately sell it under the second provision, there is no

infringement upon the First Amendment rights of either seller

or buyer.'? Under the majority's analysis, similarly “permissive”

legislation allowing the banning of anyconstitutionally protected

speech in any medium -- broadcasting, books, movies, the

Internet -- could be passed with impunity and avoid analysis for

constitutional infirmities.

The analysis which we believe appropriate and consonant

with this Court's precedents would reach a contrary result. The

challenge of the statute itself would satisfy the state action

requirement for both provisions. Next, the legislation would be

analyzed for its impact on the decisions of the bookstore owner.

The provisions, taken together, would reveal a statutory scheme

which requires a specific procedure (banning, or segregating

and blocking) to be applied to a specific category of books

(those critical of the government), with the government providing

the standard definition for that categorization. The hypothetical

legislation would be subjected to strict scrutiny; the challenged

provisions of the Cable Television Act are similarly subject to

strict scrutiny.

” See point III below.

13

Il. CONTENT-BASED RESTRICTIONS ON,

OR IMPEDIMENTS TO ACCESS TO,

CONSTITUTIONALLY-PROTECTED

MATERIALS CANNOT BE VALIDATED

ON THE BASIS THAT THE MATERIAL

WILL BE ULTIMATELY AVAILABLE.

Having met the two-pronged test described above, the

challenged statute and regulations, which “suppress,

disadvantage or impose differential burdens upon speech because

of its content,” must be subject to strict scrutiny. Turner

Broadcasting Sys., Inc. v. F.C.C., 114 S. Ct. 2445, 2459 (1994),

The application of strict scrutiny to the challenged

statute and regulations involves numerous issues. One is of

particular concern to amici and will be discussed here.

Under strict scrutiny, the government may regulate the

content of constitutionally protected speech only if 1) the

regulation promotes acompelling interest and 2) the government

chooses the least restrictive means to further the articulated

interest. Sable Communications of California, Inc. v. F.C.C.,

492 U.S. 115, 126 (1989).

In order to satisfy the second prong, the Court must

focus on the access of the receiver to the protected speech. The

least restrictive means test is consistent with a long line of cases

in which the Supreme Court has zealously defended the

recipient's “right to receive information and ideas.””

Clearly, the banning of constitutionally-protected speech

altogether under sections 10(a) and 10(c), if those provisions

stood alone, would fail the least restrictive means test. The

Court below was able to avoid that conclusion by finding no

State action for those two provisions, but did engage in such

analysis solely as regarded section 10(b).

20

See fn. 2, supra.

14

However, both 10(a) and 10(b) address treatment of

“indecent” programming on leased access channels and must

therefore be viewed together. The statutory scheme challenged

in this action includes two elements of content-based restriction

in an “either-or” scenario:

l. Elimination of all descriptions or

depictions of sexually related material deemed patently

offensive by the cable operator, or

2. Segregation of such material to one or

more designated “indecent” channels after 30 days prior

written request by the proposed viewer.

The analysis of the majority in the Court of Appeals finds these

alternatives constitutional only by ignoring a long-standing

precedent of this Court which prohibits the imposition of

impediments to speech with the rationale that the speech is

available ultimately.”

The majority’s position that section 10(b) provides the

least restrictive means of regulating “indecent” programming is

based upon a factual finding that the current voluntary blocking

system is ineffectual. That finding, however, ignores the

onerous nature of the challenged scheme's 30-day wait for the

segregated programming. Requiring up to a 30 days wait to

obtain any programming labelled as “indecent” creates a

substantial impediment that cannot be characterized as “least

restrictive.” The numerous viewers who wish selectively to

view the category of programming regulated by the scheme at

issue here will normally not have more than a week or two of

notice as to upcoming programming. The concept that a thirty-

day wait following a required affirmative request by a reader,

viewer or listener is constitutionally acceptable would, if applied

to books, periodicals, videos and recording, preclude persons

21

The clearest example of the majority's “ultimate access” approach

is its approach to 10(b)'s 30-day waiting requirement.

a ten

15

from seeing many of the educational and cultural offerings

associated with the amici which would fall under the

government's broad "indecency" definition.

The majority stated that

the difference between the two systems

amounts to this: under the 1984 Act, their

material does not get into the home if the

subscriber locked it out; under the 1992 Act,

their material does not get into the home unless

the subscriber invites it in.

56 F.3d at 126. The majority then analogizes the blocking and

segregation of the current statutory scheme with the blocking

and segregation associated with pay-per-view programs. Thus,

the majority states that “there is little difference between section

10's treatment of indecent leased access programming and the

1992 Act’s handling pay-per-view programming.” /d. The

majority's Opinion ignores a critical distinction between the

current regulatory scheme and both the 1984 Act and pay-per-

view programming: the 30-day waiting period for access to

programming creates an unreasonable and serious impediment

to access of programming. Pay-per-view programming may be

accessed immediately with a single phone call. The lockbox

feature of the 1984 Act permitted viewers to directly and

immediately control their programming availability. By contrast,

the current regulatory scheme imposes severe constraints on the

availability of constitutionally-protected programming. The

Court has held that “[t}he loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Where alternatives such as lockboxes are available, it is apparent

that a scheme that requires an advance 30-day request for

programming is not the least restrictive alternative.

The majority’s offhand minimization of the 30-day

waiting period ignores the Court's prior rejection, in cases

16

involving zoning restrictions and delays in the receipt of mail,

of the same argument that the restriction or delay is permissible

since persons ultimately have access to the protected speech.”

In general terms, the majority is arguing that ultimate access to

“indecent” programming is sufficient and does not impose a

meaningful restriction. As this Court found in Lamont v.

Postmaster General of United States, 381 U.S. 301 (1965), “the

‘uninhibited, robust and wide-open’ debate and discussion that

are contemplated by the First Amendment” is inconsistent with

a requirement that unpopular speech can be delayed and subject

to arequirement that the prospective recipient must affirmatively

request it. (381 U.S. at 307)”

The unconstitutional inhibitions on First Amendment

rights caused by such a provision are not caused solely by the

fact that such a requirement is addressed to a content-specific

class of speech tainted by being so designated by the government.

Amici know well from their own businesses the importance of

browsing and impulse purchasing of core First Amendment

items such as books, magazines, recordings, videos and motion

pictures.** Further, amici also know that state and local

governments, frustrated in their efforts to prohibit the distribution

of unpopular constitutionally-protected materials, may seek to

reach the same goal by imposing one or more impediments

= See, e.g., Schneider v. State, 308 U.S. 147 (1939); Schad v.

Borough of Mount Ephraim, 452 U.S. 61 (1981); Lamont v. Postmaster

General of United States, 381 U.S. 301 (1965).

= This would not be validated as a time, place and manner restriction

since, as such, it would have to be “justified without reference to the content

of the regulated speech.” Clark v. Community for Creative Non-Violence,

468 U.S. 288, 293 (1984).

- See, e.g., American Booksellers Ass'n v. Webb, 643 F. Supp. 1546,

1549 (N.D. Va. 1986); American Booksellers Ass'n v. Strobel, 617 F. Supp.

699, 702 (D.C. Va. 1985).

17

between the provider and the consumer of First Amendment

protected materials. The Court should guard against such

attempts.

CONCLUSION

One of the glories of the First Amendment is thet it

permits a broad and diverse distribution of expressive material,

whether popular or not. The broad range of media, the multiplicity

of distribution outlets--large and small, expensive or not, local

or national--and the diversity of the forms which the expression

take create this panoply. The application of the principles of

what is state action and what level of regulation of First

Amendment material is permissible as decided by this Court in

this case will not be limited to the newer technologies and media

that are before the Court in this case. They will apply to the more

traditional forms and media of expression as well.

Amici urge the Court to reaffirm its precedents and

reverse the decision of the court below, finding that the federal

Statute and regulations at issue in this case constitute state

action, and that the scheme created by the statute and regulations

violates the First Amendment to the U.S. Constitution.

Respectfully submitted,

Michael A. Bamberger

Sonnenschein Nath & Rosenthal

1221 Avenue of the Americas

24th Floor

New York, New York 10020

(212) 768-6700

Of Counsel:

Margaret Jacobs Counsel of Record for Amici

Curiae

A-l

APPENDIX A: THE AMICI

The American Booksellers Foundation for Free

Expression (ABFFE) was organized in 1990. The purpose of

ABFFE is to inform and educate booksellers, other members of

the book industry, and the public about the dangers of censorship

and to promote and protect the free expression of ideas,

particularly freedom in the choice of reading materials.

The Council for Periodical Distributors Associations is

the national trade association for approximately 330 independent

local wholesale distributors who distribute over 90% of all

magazines in every state of the United States, as well as comic

books, paperback books and newspapers.

The Freedom To Read Foundation (FTR) is a not-for-

profit organization established in 1969 by the American Library

Association to promote and defend First Amendment rights, to

foster libraries as institutions that fulfill the promise of the First

Amendment for every citizen, to support the right of libraries to

include in their collections and make available to the public any

work they may legally acquire, and to establish legal precedent

for the freedom to read of all citizens.

The Interactive Digital Software Association is a trade

association whose members represent the leading publishers of

interactive entertainment software.

The International Periodical Distributors Association

(IPDA) is the trade association for the principal national

periodical distributors engaged in the business of distributing or

arranging for the distribution of paperback books and periodicals

to wholesalers throughout the United States for ultimate

distribution to retailers and the public.

The Magazine Publishers of America (MPA) is a trade

association for the consumer magazine industry. MPA was

organized in 1919 and has a membership of approximately 200

publishers, representing almost 800 general interest consumer

A-2

magazines, ranging from journals of literature to special interest

publications to multi-million circulation publications.

The Motion Picture Association of America is a not-for-

profit corporation founded in 1922 for the purpose of promoting

the interest of the motion picture industry in the United States

and helping the industry maintain high standards and public

goodwill.

The National Association of College Stores, Inc. is a

trade association comprised of approximately 3,000 college

stores located throughout the United States.

The National Association of Recording Merchandisers

is an international trade association whose more than 1,000

members represent recorded entertainment retailing,

wholesaling, distributing and manufacturing.

The Periodical and Book Association of America, Inc.

is an association of magazine and paperback book publishers

who rely on newsstand sales and who distribute magazines and

books through independent national distributors, wholesalers

and retailers throughout the United States and Canada.

The Publishers Marketing Association (“PMA”) ts a

nonprofit trade association representing more than 2,000

publishers across the United States and Canada. The PMA

represents predominantly nonfiction publishers and assists

members in their marketing efforts to the trade.

The Recording Industry Association of America, Inc.

(“RIAA”) is a trade association whose member companies

produce, manufacture and distribute over 90% of the sound

recordings sold in the United States. The RIAA is committed

to protecting the free expression rights of its member companies.

The Video Software Dealers Association (VSDA) is the

trade association for the home video entertainment industry. It

represents more than 3,500 member-companies in North America

A-3

and 22 countries worldwide. including small, independently

owned video retailers as well as large video chains. It also

includes the home video divisions of all the major and

independent motion picture studios, and the other associated

businesses that comprise the home video industry.