Cable TV: Not as Free as Print Media   

A U.S. Supreme Court ruling establishes the limits of cable's First Amendment rights.

Two decades ago, a lawyer argued before the U.S. Supreme Court that "a critical malfunction in the marketplace of ideas" could justify government regulation of the press – even to the point of ordering a media organization to publish something against its will. The argument fell flat, rejected by a unanimous vote.

But essentially the same argument came around again this year, and this time it worked.

It was not just the passage of time or the changing membership of the court that made the difference. The key was the difference in media. Newspapers were the clear winner against that plea in 1974. Twenty years later, cable television was the loser.

Since the TV-via-cable phenomenon began as an experiment in 1948, a nationwide industry has grown to maturity and prosperity without knowing for sure how much First Amendment freedom it would have.

At last it knows. The Supreme Court settled that long-standing issue near the close of its last term, clearing the way for government to oversee cable TV programming (and the future "information superhighway") in a way that officials could never do with newspapers.

Long fearful that it would be treated like a second-class citizen for First Amendment purposes, the cable industry now must accept that as its legal rank: It has fewer rights of free expression than the print media, though slightly more than over-the-air broadcasting.

Twenty years ago, the issue was the constitutionality of forced access to newspaper space, an issue raised by a Florida law requiring any newspaper that had criticized a political candidate to provide space for a reply. This year, the issue was the constitutionality of forced access to cable TV channels, a question posed by a 1992 federal law ordering cable TV stations to carry free of charge all programming of local over-the-air TV stations requesting access.

Twenty years ago, the court took note of the argument that "the First Amendment interest of the public in being informed is said to be in peril because the 'marketplace of ideas' is today a monopoly controlled by the owners of the market." The court said that, even if that were true, it was beside the point.

Any remedy for such a problem had to come voluntarily from newspapers and could not be coerced by the government, the court ruled unanimously in the case of Miami Herald vs. Tornillo in 1974. The Florida law, the court ruled, violated the First Amendment "because of its intrusion into the function of editors."

The same fear of monopoly, this time for cable TV stations, led Congress two years ago to impose the "must carry" rule to assure the survival of over-the-air TV in an era increasingly dominated by cablecasting. Several platoons of lawyers urged the court to treat cable TV differently from newspapers. The Tornillo ruling, they said, just didn't fit cable TV's situation.

By a 5-4 vote in late June in the case of Turner Broadcasting vs. Federal Communications Commission , the court agreed. Said the majority: "Simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude." Freeing itself of the restraints of the Tornillo ruling, the majority said: "The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas."

While the court did not uphold the "must carry" rule at this juncture, opting to have a lower court gather more evidence about the need for the rule, the court did settle firmly the First Amendment status of cable TV. Buying the argument that cable operators have the capacity to be a "bottleneck" in the marketplace of ideas, the court refused to make cable operators as free a monopoly as newspaper publishers are.

Among the majority's more inventive lines of reasoning was its contention that the "must carry" rule would not give the federal government power to control what cable operators said on their own programs, and thus the rule would not be a form of "content control."

Interestingly, the Florida Supreme Court had used that very line of reasoning in 1973 in upholding the Florida right-of-reply law that was later nullified by the Tornillo ruling. Said the Florida court: "The statute here under consideration is designed to add to the flow of information and ideas and does not constitute an incursion upon First Amendment rights or a prior restraint, since no specified newspaper content is excluded. There is nothing prohibited but rather it requires, in the interest of full and fair discussion, additional information."

‚ow could that notion be wrong back then and right now? The explanation can be found only in the elasticity of legal reasoning. l