Opinions & Commentaries

Overruled

Complainant directs its argument to three propositions: (1) The statute in controversy imposes an unlawful burden on interstate commerce; (2) it violates the freedom of speech and publication guaranteed by § 11, art. 1, of the constitution of the State of Ohio;[1] and (3) it attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated.

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In view of our dependence upon regulated private enterprise in discharging the far-reaching role which radio plays in our society, a somewhat detailed exposition of the history of the present controversy and the issues which it raises is appropriate.

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The principal question here is whether, in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programs through loudspeakers in its passenger vehicles under the circumstances of this case. *454 The service and equipment of the company are subject to regulation by the Public Utilities Commission of the District of Columbia. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, has concluded that the radio service is not inconsistent with public convenience, comfort and safety and "tends to improve the conditions under which the public ride." The Commission, accordingly, has permitted the radio service to continue despite vigorous protests from some passengers that to do so violates their constitutional rights. For the reasons hereafter stated, we hold that neither the operation of the service nor the action of the Commission permitting its operation is precluded by the Constitution.

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The issue here is the constitutionality, under the First and Fourteenth Amendments, of a New York statute which permits the banning of motion picture films on the ground that they are "sacrilegious." That statute makes it unlawful "to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel [with specified exceptions not relevant here], unless there is at the time in full force and effect a valid license or permit therefor of the education department. . . ."[1] The statute further provides:

"The director of the [motion picture] division [of the education department] or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto."[2]
Appellant is a corporation engaged in the business of distributing motion pictures. It owns the exclusive rights to distribute throughout the United States a film produced in Italy entitled "The Miracle." On November 30, 1950, after having examined the picture, the motion picture division of the New York education department, *498 acting under the statute quoted above, issued to appellant a license authorizing exhibition of "The Miracle," with English subtitles, as one part of a trilogy called "Ways of Love."[3] Thereafter, for a period of approximately eight weeks, "Ways of Love" was exhibited publicly in a motion picture theater in New York City under an agreement between appellant and the owner of the theater whereby appellant received a stated percentage of the admission price.

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The Federal Communications Commission (FCC) has for many years imposed on broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program which constituted a personal attack on one Cook, and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the FCC's position. After the commencement of the Red Lion litigation, the FCC began a rulemaking proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the Court of Appeals in RTNDA (No. 717) as abridging the freedoms of speech and press.

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Petitioner, Hugo Zacchini, is an entertainer. He performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 15 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act.

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At issue in these cases are Federal Communications Commission regulations governing the permissibility of common ownership of a radio or television broadcast station and a daily newspaper located in the same community. Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F. C. C. 2d 1046 (1975) (hereinafter cited as Order), as amended upon reconsideration, 53 F. C. C. 2d 589 (1975), codified in 47 CFR §§ 73.35, 73.240, 73.636 (1976). The regulations, adopted after a lengthy rulemaking proceeding, prospectively bar formation or transfer of co-located newspaper-broadcast combinations. Existing combinations are generally permitted to continue in operation. However, in communities in which there is common ownership of the only daily newspaper and the only broadcast station, or (where there is more than one broadcast station) of the only daily newspaper and the only television station, divestiture of either the newspaper or the broadcast station is required within five years, unless grounds for waiver are demonstrated.

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438 U.S. 726 (1978) FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION ET AL.     No. 77-528. Supreme Court of United States.    Argued April 18, 19, 1978. Decided July 3, 1978. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.*728 Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong.Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for *729 the United States, a respondent […]

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Moved to action by a widely felt need to sponsor independent sources of broadcast programming as an alternative to commercial broadcasting, Congress set out in 1967 to support and promote the development of noncommercial, educational broadcasting stations. A keystone of Congress' program was the Public Broadcasting Act of 1967, Pub. L. 90-129, 81 Stat. 365, 47 U. S. C. § 390 et seq., which established the Corporation for Public Broadcasting, a nonprofit corporation authorized to disburse federal funds to noncommercial television and radio stations in support of station operations and educational programming. Section 399 of that Act, as amended by the Public Broadcasting Amendments Act of 1981, Pub. L. 97-35, 95 Stat. 730, forbids any "noncommercial educational broadcasting station which receives a grant from the Corporation" to "engage in editorializing." 47 U. S. C. § 399. In this case, we are called upon to decide whether Congress, by imposing that restriction, has passed a "law . . . abridging the freedom of speech, or of the press" in violation of the First Amendment of the Constitution.

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Respondent Preferred Communications, Inc., sued petitioners City of Los Angeles (City) and the Department of Water and Power (DWP) in the United States District Court for the Central District of California. The complaint alleged a violation of respondent's rights under the First and Fourteenth Amendments, and under §§ 1 and 2 of the Sherman Act, by reason of the City's refusal to grant respondent a cable television franchise and of DWP's refusal to grant access to DWP's poles or underground conduits used for power lines. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. See Fed. Rule Civ. Proc. 12(b)(6). The Court of Appeals for the Ninth Circuit affirmed with respect to the Sherman Act, but reversed as to the First Amendment claim. 754 F. 2d 1396 (1985). We granted certiorari with respect to the latter issue, 474 U. S. 979 (1985).

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The issue before us is the constitutionality of § 223(b) of the Communications Act of 1934. 47 U. S. C. § 223(b) (1982 ed., Supp. V). The statute, as amended in 1988, imposes an outright ban on indecent as well as obscene interstate commercial telephone messages. The District Court upheld the prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. We affirm the District Court in both respects.

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Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. The district court held that the "must-carry" provisions of the Act were constitutional. The extent to which the government can regulate speech often depends upon whether the regulation is content-based or content-neutral. Content based restrictions must be narrowly tailored to serve a compelling governmental interest, while content-neutral regulations need only reasonably advance a substantial state interest. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

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Section 10 of the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. _ 532, regulates indecent programming on local access cable television channels. Indecent speech is speech that, while not obscene, describes or depicts sexual or excretory activities or organs in an offensive manner. Local access channels are those channels set aside by the cable operator for use by persons not affiliated with the operator. The operator is prohibited from exercising any editorial control over these channels. Local access channels usually either are leased or are the "public, educational, or governmental" channels that a local government requires the operator to set aside as partial consideration for the operator's right to install cables under city streets and to otherwise use public right of ways. Section 10(a) of the Act permits cable operators to refuse to carry indecent speech on leased local access channels. Section 10(b) of the Act directs the Federal Communications Commission to adopt rules requiring operators who choose to carry indecent programming on local access channels to place the programs on a separate channel and to block the channel until the subscriber, in writing, requests unblocking. Section 10(c) permits cable operators to refuse to carry indecent speech on public, educational, or governmental channels. A combination of groups that produce and watch local access programming challenged the Act and the FCC regulations implementing it on First Amendment grounds. The groups argued that the Act and regulations unconstitutionally censored indecent speech. A panel of the District of Columbia Court of Appeals agreed with this argument and struck down the Act. On rehearing, however, the full court reversed and held that the Act was constitutional because it did not require censorship of indecent speech and because the blocking provisions were the least restrictive means of furthering the government's interest in shielding children from indecent programming. When, as in this case, a governmental restriction of speech is based upon the content of that speech, the restriction can be upheld only if it constitutes the least restrictive means of advancing a compelling governmental interest. Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989). In the broadcasting context, the least restrictive means analysis often involves determining whether the broadcasts are available to children, whether the type of broadcasting is pervasively present in society, whether the indecent material can "confront" the audience with little or no warning, and whether adults have other means to receive similar speech. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

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Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. In 1993, the district court held that the "must-carry" provisions of the Act were constitutional. On direct appeal, the Supreme Court, in Turner Broadcasting System v. Federal Communications Comm., 114 S. Ct. 2445 (1994), held that the "must-carry" provisions constituted a content-neutral regulation and could be constitutional. The Court then ordered the district court to determine whether the government could demonstrate that the provisions reasonably advanced an important governmental interest. On remand, a divided district court held that Congress had before it "substantial evidence" from which to conclude that the must-carry provisions were necessary to protect the local broadcast industry. When examining content-neutral regulations, courts apply an "intermediate" level of scrutiny. Under this analysis, legislation that affects speech but that does not favor the message of one speaker over another can be constitutional if the legislation (1) furthers an important governmental interest and (2) does not burden more speech than necessary to advance that interest. United States v. O'Brien, 391 U.S. 367 (1968).

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The Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 223, prohibits the transmission of indecent and patently offensive materials to minors over the Internet. A number of civil rights and computer groups challenged the constitutionality of these provisions on First Amendment grounds. In essence, these groups argued that the inability of Internet users and providers to verify the age of information recipients effectively prevented them from engaging in indecent speech, which traditionally has received significant First Amendment protection. After a lengthy evidentiary hearing that included many online demonstrations, a special three-judge district court (which was created by the CDA to hear the expected constitutional challenges) agreed with the groups and ruled that the provisions violated the First Amendment. Indecent speech, unlike obscenity, is entitled to constitutional protection because it often has substantial social value and lacks prurient interest. Sable Communications v. FCC, 492 U.S. 115 (1989). This speech therefore cannot be regulated unless the restrictions are justified by a compelling governmental interest and are narrowly tailored to advance that interest. Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994). The Court already has held that the government has a compelling interest in protecting minors from indecent speech. Ginsberg v. New York, 390 U.S. 629 (1968). The Court also has held that the government may prohibit dissemination of indecent materials to minors as long it does not at the same time prohibit dissemination to adults. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

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The Greater New Orleans Broadcasting Association, a non-profit trade association of various radio and television broadcasters in the New Orleans area, challenged the federal law banning broadcast advertisements of casino gaming. The law, 18 U.S.C. _ 1304 prohibits the broadcasting of "any advertisement of any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance." The lower federal courts upheld the law, ruling that it did not violate the First Amendment under the U.S. Supreme Court's commercial speech doctrine. In order for a regulation of commercial speech to survive constitutional review, the regulation must directly and materially advance the government's substantial interests in the regulation. The government must demonstrate that the harms the speech- restriction advances are real and that the restriction will alleviate them in to a "material degree." The government cannot satisfy its constitutional burden by citing speculative harms.

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Section 505 of the Telecommunications Act of 1996 requires cable television operators to "fully scramble or otherwise fully block the video and audio portion" of channels that provide primarily "sexually explicit adult programming." The act provides that cable operators can comply with _ 505 by showing the "indecent" or "sexually explicit adult programming" only during so-called safe-harbor hours, 10 p.m. to 6 a.m., when children are not likely to view the programming. In 1996, Playboy Entertainment Group filed suit in the United States District Court for the District of Delaware seeking to prohibit the enforcement of Section 505. After the three-judge panel denied Playboy's motion for a preliminary injunction, the U.S. Supreme Court in 1997 refused to review the denial of the preliminary injunction. On Dec. 28, 1998, the district court ruled that _ 505 violated the First Amendment. The court ruled the law was content-based because it restricted only sexually explicit adult programming. The government appealed to the U.S. Supreme Court. Indecent speech, unlike obscene speech, is entitled to First Amendment protection. Government officials cannot suppress the free-speech rights of adults in order to protect minors from objectionable material unless the law is very narrowly drafted. Content-based laws are presumptively unconstitutional and the government bears the burden of showing that the law advances a compelling state interest in the least restrictive way.

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539 U.S. 194 (2003) UNITED STATES et al. v. AMERICAN LIBRARY ASSOCIATION, INC., et al.         No. 02-361. Supreme Court of United States.    Argued March 5, 2003. Decided June 23, 2003. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA*195 *196 *197 REHNQUIST, C. J., announced the judgment of the Court and delivered an opinion, in which O’CONNOR, SCALIA, and THOMAS, JJ., joined. KENNEDY, J., post, p. 214, and BREYER, J., post, p. 215, filed opinions concurring in the judgment. STEVENS, J., filed a dissenting opinion, post, p. 220. SOUTER, J., filed […]

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Federal law banned the broadcasting of “any … indecent … language,” 18 U. S. C. §1464, which includes references to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726. Having first defined the prohibited speech in 1975, the Federal Communications Commission (FCC) took a cautious, but gradually expanding, approach to enforcing the statutory prohibition. In 2004, the FCC’s Golden Globes Order declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once. This case concerned isolated utterances of the F- and S-Words during two live broadcasts aired by Fox Television Stations, Inc. In its order upholding the indecency findings, the FCC, inter alia, stated that the Golden Globes Order eliminated any doubt that fleeting expletives could be actionable; declared that under the new policy, a lack of repetition weighs against a finding of indecency, but is not a safe harbor; and held that both broadcasts met the new test because one involved a literal description of excrement and both invoked the F-Word. The order did not impose sanctions for either broadcast. The Second Circuit set aside the agency action, declining to address the constitutionality of the FCC’s action but finding the FCC’s reasoning inadequate under the Administrative Procedure Act (APA).

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