by Carl E. Brody, Jr.

Page 55

Congress enacted 47 U.S.C. §531 in order to allow local governments serving as the franchising authority for cable rights to require a cable operator receiving the local franchise to set aside certain stations for public, educational, or government use. These channels, commonly referred to as the “PEG” channels, provide citizens a soapbox for public discourse and, as such, invoke standard First Amendment protections for those speakers.

Public access programming falls under the “P” designation in the “PEG” and is the category at issue most often because it is where citizen participation intersects with government regulation and control. Citizens supply programming for the public access channel as show producers, while the government regulates citizen use of the channel through a local policy manual.¹ This inevitably creates a conflict the determination of which is contingent, in part, on the constitutional status of the public access channel. In making this determination, the question of whether the public access channel is a public forum is a primary concern.

Public Forum Analysis

Public forum status has evolved over time and was clarified by the U.S. Supreme Court in Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), in which the Court set out the standard of review for determining the limits of appropriate regulation of speech in a public forum. The Court initially explained that its analysis provided for three distinct categories of fora, each requiring a distinct level of scrutiny. First is the traditional public forum, which consists of public streets, parks, and other areas that are commonly used to express ideas.² Designated public fora constitute the second level of scrutiny and these sites consist of those places specifically set aside by the government for citizen expression.³ Finally, certain forum areas are simply nonpublic . These are sites that are not traditionally set aside for public discourse and receive no special dispensation as such from the government.⁴ The standard of review is therefore contingent on the court’s interpretation of the constitutional status of the forum.

Under the first two categories, content-based regulation must serve a compelling interest and be narrowly drawn to achieve that interest, whereas under the third category, the government regulation need only be reasonable and viewpoint-neutral in order to satisfy constitutional standards. Content-neutral regulations, in contrast, must be narrowly drawn to serve a significant state interest and leave open ample alternative channels of communication in the public forum context.⁵ However, in a nonpublic forum, only the reasonableness standard applies.⁶

The logical next question is where in the spectrum does a public access channel lie. Lower courts have vacillated on this question and neither our Supreme Court nor the 11th Circuit Court of Appeals has directly addressed it, yet the outcome of any challenged regulation of public access programming rests squarely on the courts’ interpretation of this issue. These inconsistent interpretations are created by the U.S. Supreme Court’s failure to gain a majority opinion in its decisions and, as such, a review of the case law on point is required to obtain a full understanding of the limits of government regulation.

In Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), the Court dealt with a challenge to §10(a), (b), and (c) of the Cable Television Consumer Protection and Competition Act of 1992.⁷ Section 10(c) of the act addressed Congressional intent regarding regulation of public access channels. The act was proscriptive in that it allowed local cable operators to prohibit programs containing obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct. The FCC, in turn, promulgated language defining “sexually explicit” as a description or depiction of “sexual or excretory activities or organs in a patently offensive manner.”⁸ In a fractured plurality decision, the Court, found §10(c) to be unconstitutional. Justices Breyer, Stevens, and Souter provided four elements that were violated in support of their decision, whereas Justices Kennedy and Ginsburg employed the public forum analysis in coming to the same conclusion. Though these two camps agreed that §10(c) was unconstitutional, their analysis could not be any more disparate.

The majority of the plurality held that §10(c) did not satisfy its self-created scrutiny standard. Particular notice must be given to the fact that the verbiage did not use the term “strict scrutiny” as a specific scrutiny label, nor was a test provided, much to the chagrin of Justice Ginsburg. Indeed, the majority found four troubling factors made the act unconstitutional. As these four aspects carried the most weight in the Court’s decision, they also should carry the heaviest weight in a current examination concerning the parameters of appropriate regulation.

Initially, the Court expressed concern with §10(c) based on the fact that public access channels traditionally did not exercise editorial control. This factor was weighed against regulation by local government, because there was no historical support for the proposition that such regulation advanced a government interest.⁹ The second factor with which the plurality took issue was the federal “top down” approach of §10(c), in that the federal regulatory scheme imposes a one-size-fits-all approach to addressing local concerns. The plurality opined that public access channels are subject to complex supervisory systems that effectively protect the public’s interest through local government, nonprofit, or cable system management. As such, this second factor can actually be used to the benefit of local regulators. Of significance, the Court explained that §10(c) was unnecessary because “[t]here is a locally accountable body capable of addressing the problem . . . of patently offensive programming.” Similarly, the third and fourth factors considered by the Court focused on the viability of local controls to protect local citizens from potentially offensive programming. As can be seen, the majority opinion provided no concrete standard to follow. The factors cited in support of their decision instead focused on the infirmities of the federal regulation rather than the constitutional standards breached. Therefore, while the Denver Area opinion addressed the immediate question before the Court, it also created a confused analysis for lower courts to follow.

Contrasting the majority opinion, Justice Ginsburg’s concurrence clearly set out an applicable standard. In her opinion, joined by Justice Kennedy, the Court should have found §10(c) unconstitutional under a strict scrutiny public forum analysis. Ginsburg argued that public access channels fall into the second category of public forum property because they constituted “property that the State has opened for expressive activity by part or all of the public.”¹⁰ Ginsburg went on to explain that, based on the legislative support for the 1984 Cable Act, public access was intended to give voice to those who generally do not have access to the electronic media and, as such, these channels provide “the video equivalent of the speaker’s soapbox.”¹¹ Therefore, according to the concurrence, application of the public forum analysis was appropriate.

In placing the overlay of the public forum analysis on §10(c), the concurrence determined that the primary question was whether the government can discriminate on the basis of content when such content may be offensive. This concern would be balanced against the government’s legitimate compelling interest under a strict scrutiny standard. The compelling interest requirement was found to be satisfied because protecting children from indecent speech is consistent with longstanding Court standards.¹² The narrow tailoring requirement, however, was breached based on two failures. First, the permissive nature of the regulation allowed only partial enforcement of the compelling interest because not all localities would regulate public access. Therefore, those children in unregulated jurisdictions would be left unprotected.¹³ The second concern was based on the fact that the prohibition to protect children would concomitantly deprive adults from access to nonobscene, yet risqué, programming. This type of limit was found to be excessive.¹⁴ Therefore, in applying the strict scrutiny test for public forums, the concurrence found §10(c) unconstitutional. Though Justice Ginsburg’s concurrence was explained more completely than the majority opinion, no specific Perry public forum analysis was applied to §10(c), but rather the strict scrutiny standard was clearly employed to foreclose use of the regulation.

Overall, though the strongest legal theory for overturning §10(c) was under a public forum strict scrutiny standard, that theory did not become part of the majority opinion. As such, lower courts were allowed to impose their own interpretations on the applicable legal standard and use of strict scrutiny. It is necessary, therefore, to examine the current status of case law to determine the proper course for creating constitutionally valid public access programming regulations.

Current Applications for Regulation

In recent years local government officials have become more concerned with the nature of programming broadcast through the public access airwaves. Specifically, programs have become more commercial, sexually explicit, and adult-oriented. Hillsborough County provides a good example of this concern, as elected officials in that county raised objections to several programs it believed to be inappropriate for broadcast and suggested options for dealing with the perceived problem.¹⁵ This dissent was exacerbated by the fact that public funding was used to maintain the programming on its public access channel. In response to this problem, the county attempted to terminate funding for the public access channel through the budgeting process, thereby completely eliminating this form of speech. Producers of programming on the Hillsborough public access channel challenged the county’s authority to take this action through an injunctive action based on the argument that eliminating funding would cut off plaintiffs’ avenue of communication to the public and, as such, breach their First Amendment right to free speech. The U.S. Court for the Middle District of Florida agreed with this argument and issued an injunction foreclosing the county’s ability to eliminate the funding for public access.¹⁶ The end result was that the public access channel in Hillsborough County was maintained, objectionable programming was allowed to continue, and the county was required to mediate a financial settlement with the plaintiffs.¹⁷

This scenario illustrates the dangers of employing the first model for regulating public access programming. Other local governments have also attempted to pull funding for public access because of distaste for the nature of the programming, but have also failed before lower courts.¹⁸ For example, in Kansas City, the city attempted to eliminate public access in response to Ku Klux Klan attempts to air programs promoting its social and political positions. The court, in its review under a designated public forum analysis, found that the Constitution forbids a state from enforcing exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place.¹⁹ The court also accepted the Klan’s argument that the decision to close the channel was an attempt to suppress free speech based on viewpoint discrimination. These arguments were found to be sufficient to defeat a motion to dismiss filed by the city, thereby allowing the challenge of the Klan to be maintained.

Overall, the complete elimination of a channel based on discontent with the nature of programming is inconsistent with our current constitutional standards. This precedent should not be read to foreclose other reasons or support for eliminating public access programming when necessary though, because the constitutional standards allow for such action if the appropriate scrutiny standard is satisfied. There must be a better reason, however, than the displeasure of elected officials toward the content of programming on the public access channel, as this will be interpreted as viewpoint discrimination and subject the government to a strict scrutiny standard it cannot survive. Indeed, several courts have upheld the right of local government to close a public access channel, even under the public forum analysis, where the motives for the decision were not in question.²⁰

These courts have found that where the decision to close a public forum is not based on a desire to regulate the content of any particular speech, but instead is based on some distinct viewpoint-neutral purpose, elimination of a public access channel can pass constitutional muster. Rhames v. City of Biddeford, 204 F. Supp. 2d 45 (D. Me. 2002), provides the best example of this scenario.²¹ In Rhames, a public access producer filed an injunctive challenge to the city’s decision to temporarily close the local public access channel. The court, in its analysis, determined that a temporary closure of the channel, in contrast to a complete closure, was narrowly tailored and, as such, would pass constitutional muster on that point. This interpretation was bolstered by the fact that this option was applied equally across the board to all public access participants and not just the “problem child” in the group. Under the total elimination scenario, the breadth of the action would also limit the ability of public access producers to base a challenge on speaker or viewpoint censorship, because the government act would not be directed at a particular individual or program, unless elected officials indicate otherwise on the record. Indeed, in an analogous context, the First Amendment will allow a designated or nonpublic forum to be closed even where the regulation completely bars solicitation of signatures for petitions, polls, and surveys on the exterior of post office properties.²² Therefore, under this first option, the alternative for closing a public access channel is available, but must be done based on an important government interest that is content-neutral and not directed at eliminating distasteful programming.

The second scenario for addressing concerns with the content of public access programming is to create regulations that limit or designate the scheduling time of programs on public access channels. Such regulations have met with mixed results, but careful drafting should provide sufficient constitutional protection for producers. For example, a district court in Georgia upheld the City of Atlanta’s approach to regulation when a producer was prohibited from using the public access facility based upon his failure to comply with local rules for use of the facility.²³ In that court’s opinion, so long as the facility regulation was reasonable, the city could control its use without violating the producer’s constitutional rights. Similarly, a Massachusetts court enjoined a local cable provider from enforcing provisions of its policy manual that required producers to obtain a release from every person appearing on their programs, prohibited producers from filming illegal acts, and required producers to pay legal fees if they sued the station and lost.²⁴ The court did not, however, enjoin the station from requiring that providers notify it of programming that was “potentially offensive.” In its opinion the court explained that Denver Area did not provide clear direction; therefore, the public forum aspect of the question was not considered.

This use of proper regulation also finds support in the concurrence of Justice Ginsburg in the Denver Area case. Indeed, Ginsburg specifically noted that local regulations of public access which require a certification of compliance with local standards, time segregation, and adult content advisories are consistent with the narrowly tailored requirement of the strict scrutiny analysis.²⁵ The Supreme Court majority also seems to support reasonable regulation, though the opinion provides no specific standard to follow. As the Court explained, “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: [t]here is a locally accountable body capable of addressing the problem . . . of patently offensive programming.”²⁶ The Court went on to buttress its decision on the constitutional question by explaining that the FCC regulation was not necessary because of the fact that local entities retained systems to ensure that programming fit with community standards. Therefore, this second option is a viable course to take so long as the regulations imposed are reasonable, the government shows an important interest in the regulation, and there is no intent to discriminate based on viewpoint.

The final option for addressing concerns regarding the nature of public access programming involves preclusion of programming at the outset. This option may seem obvious, but such decisions have been challenged. Generally, though, these challenges have failed. Local governments have been successful in not providing public access to the community so long as the franchise authority never created the right to access in the first place.²⁷ By taking this option, the main issue for the courts has been an examination of the public forum status of public access, because the ability to circumscribe an outlet for speech will be heavily affected by a determination of whether access to a public forum is being affected. To this point, total proscription prior to creation of the forum will be a constitutionally valid option so long as evidence of a discriminatory purpose does not exist.

Conclusion

The case law standard regarding public access is still evolving, though a vague consensus allowing proper regulation of programming on these channels is being established. Regulations for the purpose of protecting children from indecent speech are constitutionally acceptable if they are narrowly tailored to address those interests. Access channels may curtail commercialism, indecent programming, and similarly inappropriate programming, as this type of programming is included in the federal legislation. The station may also control the use of the facility, if this is done in a reasonable and content-neutral manner. Such regulation must also be careful to comply with all First Amendment requirements, including the prior restraint, overbreadth, and vagueness doctrines. Alternatively, the consensus approves local government decisions not to open or to cease operation of a public access channel so long as the decision is viewpoint- and content-neutral. The intent of the governing body is a critical factor to be considered under these circumstances, for any inference that the decision is based on improper considerations could result in a constitutional infirmity.

These standards are based on an interpretation that any government action related to regulation of public access programming requires review under a First Amendment standard. The heavy weight of these decisions has applied a level of scrutiny similar to that of a designated public forum, requiring an important government interest that is narrowly tailored. Therefore, when employing any of the three options, local governments should be very cautious in the language used to support such decisions in order to protect against claims of discrimination based on viewpoint. The government body should also provide content-neutral reasons for the regulation, thereby allowing a reviewing court to apply the less stringent standard of review. By following these rules, local franchise authorities should be able to protect their ultimate interests in protecting the public without violating the First Amendment. q

¹ See 47 U.S.C. §531(b) (“a franchising authority may . . . require rules and procedures for the use of the channel capacity designated pursuant to this section”).
² See Frisby v. Schultz, 487 U.S. 474, 478 (1988); Boos v. Barry, 485 U.S. 312, 317 (1988); Hague v. CIO, 307 U.S. 496, 515 (1939) (“[T]ime out of mind” public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum.)
³ Widmar v. Vincent, 454 U.S. 263 (1981) (To create a forum of this type, the government must intend to make the property “generally available” to a class of speakers); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802 (1985) (“The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.”)
⁴ International Society for Krishna Consciousness, Inc. (ISKON) v. Lee, 505 U.S. 672, 679 (1992).
⁵ Perry Education Assoc., 460 U.S. at 45–46.
⁶ ISKON, 505 U.S. at 679 (in a nonpublic forum, government restrictions must be reasonable and “not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view,” but, “[t]he restriction . . . need not be the most reasonable or the only reasonable limitation”).
⁷ 47 U.S.C. §§531 and 532 (§531 is applicable for the purposes of this article, as it applies to cable channels for public, educational, or government use).
⁸ 47 C.F.R. §76.7062 (1995).
⁹ Denver Area, 518 U.S. at 761.
¹⁰ Id. at 791, quoting ISKON, 505 U.S. 672, 678.
¹¹ Id. at 791, quoting, H.R. Rep. No. 98-934, U.S. Code Cong. & Admin. News 1984, p. 4667.
¹² Id. at 806, citing Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989); Ginsburg v. New York, 390 U.S. 629, 639–640 (1968).
¹³ Id.; see also FCC v. League of Women Voters of California, 468 U.S. 364, 396 (1984); Florida Star v. B.J.F., 491 U.S. 524, 540–41 (1989).
¹⁴ Id. at 807, citing Butler v. Michigan, 352 U.S. 380, 383 (1957).
¹⁵ See Bill Varian, Public Access TV Reprieved, St. Petersburg Times, Nov. 13, 2002.
¹⁶ Speak up Tampa Bay Public Access Television, Inc. v. Board of Hillsborough County Commissioners, No. 8:02-CV-1762-T-30MSS, 2002 WL 32107639.
¹⁷ See Bill Varian, County Votes to Settle Public Access Dispute, St. Petersburg Times, April 17, 2003.
¹⁸ See Britton v. City of Erie, 933 F. Supp. 1261 (W.D. Pa. 1995) (the African-American plaintiff was allowed to maintain injunctive action based on claim that public access programming was being eliminated because there was “too much African-American programming,” according to an elected official.).
¹⁹ Missouri KKK v. Kansas City, Mo. 723 F. Supp. 1347, 1352 (W.D. Mo. 1989), citing Widmar v. Vincent, 454 U.S. 263 (1981); Madison Joint School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167 (1976).
²⁰ See Rhames v. City of Biddeford, 204 F. Supp. 2d 45 (D. Me. 2002); cf. Gay Guardian Newpaper v. Ohoopee Regional Library System, 235 F. Supp. 2d 1362 (S.D. Ga. 2002) (Publisher of a gay rights advocacy newspaper claimed its First Amendment rights were violated when a library closed the free literature table in lobby to all but library and government items. Publisher moved for preliminary injunction barring enforcement of exclusion, but the court held that library did not violate First Amendment rights of publisher by closing table to all private parties under a designated public forum analysis.)
²¹ See Rhames, 204 F. Supp. 2d at 52 (D. Me. 2002) (the court found that the reform of station procedures was a sufficient government interest to allow the temporary shutdown of the public access channel.)
²² Initiative and Referendum Institute v. United States Postal Service, 116 F. Supp. 2d 65, 73 (D.D.C. 2000), citing Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972) (The government may close a public forum that it has created by designation, so long as the reasons for closure are not content-based.).
²³ Jersawitz v. People TV, 71 F. Supp. 2d 1330 (N.D. Ga. 1999).
²⁴ Demarest v. Athol/Orange Community Television, 188 F. Supp. 2d 82, 92– 98 (D. Mass. 2002)
²⁵ Denver Area, 518 U.S. at 808 (concur Ginsburg).
²⁶ Id. at 763.
²⁷ Philadelphia Community Access Coalition v. Street, 2002 WL 1611542 (E.D. Pa.) (The court in this matter determined that an ordinance creating a non-profit organization to administer a public access channel did not create a public forum for public access, when there was no public access channel in existence at the time that the ordinance was enacted.)

Carl E. Brody, Jr., is a senior assistant county attorney for Pinellas County.
This column is submitted on behalf of the City, County and Local Government Law Section, Kenneth W. Buchman, chair, and Jewel W. Cole, editor.