The Supreme Court's decision on the Alliance for Community Media's (ACM) suit against the FCC was the talk of the 1996 ACM convention. Everyone at the convention was thrilled by the victory, but a little puzzled too. The decision did not leave us with any clearcut answers: The Court was divided three ways, and attorneys are cautioning not to read too much into the decision one way or another.
The ACM, which MTN belongs to, is an umbrella group for public access centers, professional staff, and volunteers. If you don't already belong,- consider joining,- its one heck of a group and the next national convention will be held in Milwaukee next July. The section of the 1992 cable act in question was written by Senator Jesse Helms of North Carolina and would have allowed cable operators to censor speech that was indecent, but not illegal. Even though the statute clearly defined indecent as a patently offensive depiction of sex, cable operators were already redefining it to mean anything at all they find objectionable. Alarmed, the ACM sued to block enforcement of the law.
The law came in three parts. The first part allowed cable operators to censor indecent programs on leased access. This section did not affect MTN as we do not offer leased access. This was where most of the problem was: The really bad examples of indecent programming that were brought up when Congress was writing the law apparently came from leased access in New York. The Supreme Court upheld this part of the law.
The second part of the law required that cable operators who allow indecent speech on their leased access channels scramble those channels. This portion of the law was struck down.
The final part of the law concerned Public, Educational and Government Access. It allowed cable operators to bar Public Access programs with indecent content from their systems. It would have allowed Paragon Cable to require us to submit programs to them to prescreen for indecent content. They would have had the power to block the airing of any show they found to be indecent. The Supreme Court struck down this provision 5 to 4.
Justice Breyer in the plurality opinion saluted the goal of protecting children from indecent programs, writing: "...the provision before us comes accompanied with an extremely important justification, one that this Court has often found compelling--the need to protect children from exposure to patently offensive sex-related material."
The solution to keeping children away from indecent material proposed by the law was to allow the cable operator to step in and exercise a veto power on everything shown. However, this would short circuit the authority that cities and access centers exercise over their channels. Justice Breyer, again: "Public access channels... are normally subject to complex supervisory systems of various sorts, often with both public and private elements... Municipalities generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may also be the municipality or, in some instances, the cable system owner... This system of public, private, and mixed nonprofit elements, through its supervising boards and nonprofit or governmental access managers, can set programming policy and approve or disapprove particular programming services. And this system can police that policy by, for example, requiring indemnification by programmers, certification of compliance with local standards, time segregation, adult content advisories or even by prescreening individual programs..." "From the comments received, it appears that a number of access organizations already have in place procedures that require certification statements of compliance with local standards, or their equivalent, from access programmers..." "Whether these locally accountable bodies prescreen programming, promulgate rules for the use of public access channels, or are merely available to respond when problems arise, the upshot is the same: there is a locally accountable body capable of addressing the problem, should it arise, of patently offensive programming broadcast to children, making it unlikely that many children will in fact be exposed to programming considered patently offensive in that community."
Justice Breyer goes on to warn of the potential for mischief in awarding
yet another entity veto power on the public's speech: "The existence of a
system aimed at encouraging and securing programming that the community considers valuable strongly suggests that a "cable operator's veto",
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