After ducking the issue of the First Amendment status of cable television for years, the United States Supreme Court rendered its most important decision concerning the regulation of the new electronic media in Turner Broadcasting, Inc. v. FCC. Turner involved the constitutionality of the "must-carry" provisions of the 1992 Cable Act (the "Act" or "Cable Act") which require cable systems to carry specified local broadcast television stations. While cable television began over four decades ago as a community antenna service, it changed drastically after the advent of satellite in the mid-1970's to also provide scores of satellite-delivered programs and to become the most important video delivery system. Cable's First Amendment status, however, remained in doubt. One group of lower court cases analyzed cable's First Amendment status under the print model of Tornillo, which provides that content-based regulation of communication media is constitutional only if it is narrowly tailored to a compelling government interest. Another group of cases opted for the more permissive broadcast regulatory scheme of Red Lion, under which content-based regulation of communication media is valid if it is reasonably related to a legitimate government interest. The Court in Turner has now determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems such as telephone companies ("telcos") come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O'Brien standard when the regulation is content-neutral. This paper explores the polar opposites of Red Lion and Tornillo, as well as the intermediate O'Brien standard. The paper then analyzes the Supreme Court's selection between these competing doctrines in its decision in Turner regarding the constitutionality of the Cable Act's must-carry provisions. The paper then explores the likely effect Turner will have on new electronic delivery systems such as the telcos. The paper concludes that Turner foretells serious constitutional obstacles to government regulation of the emerging media that will comprise the Information Superhighway. This will enhance the vast potential these media have for widespread dissemination of information throughout the United States and the world.
Turner Broadcasting, the First Amendment , and the New Electronic Delivery Systems,
Mich. Telecomm. & Tech. L. Rev.
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