Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 13 (1996)

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Cite as: 518 U. S. 727 (1996)

Opinion of Breyer, J.

create the very private-censorship risk that this anticensor-ship effort sought to avoid. At the same time, petitioners add, cable systems have two relevant special characteristics. They are unusually involved with government, for they depend upon government permission and government facilities (streets, rights-of-way) to string the cable necessary for their services. And in respect to leased channels, their speech interests are relatively weak because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as telephone companies.

Under these circumstances, petitioners conclude, Congress' "permissive" law, in actuality, will "abridge" their free speech. And this Court should treat that law as a congressionally imposed, content-based, restriction unredeemed as a properly tailored effort to serve a "compelling interest." See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 118 (1991); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They further analogize the provisions to constitutionally forbidden content-based restrictions upon speech taking place in "public forums" such as public streets, parks, or buildings dedicated to open speech and communication. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985); Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983); see also H. R. Rep. No. 98-934, supra, at 30 (identifying public access channels as the electronic equivalent of a "speaker's soap box"). And, finally, petitioners say that the legal standard the law contains (the "patently offensive" standard) is unconstitutionally vague. See, e. g., Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 (1968) (rejecting censorship ordinance as vague, even though it was intended to protect children).

Like petitioners, Justices Kennedy and Thomas would have us decide these cases simply by transferring and applying literally categorical standards this Court has developed in other contexts. For Justice Kennedy, leased access

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