740 DENVER AREA ED. TELECOMMUNICATIONS
CONSORTIUM, INC. v. FCC
Opinion of Breyer, J.
channels are like a common carrier, cablecast is a protected medium, strict scrutiny applies, § 10(a) fails this test, and, therefore, § 10(a) is invalid. Post, at 796-801, 805-807. For Justice Thomas, the case is simple because the cable operator who owns the system over which access channels are broadcast, like a bookstore owner with respect to what it displays on the shelves, has a predominant First Amendment interest. Post, at 816-817, 822-824. Both categorical approaches suffer from the same flaws: They import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without sacrificing the free exchange of ideas the First Amendment is designed to protect.
The history of this Court's First Amendment jurisprudence, however, is one of continual development, as the Constitution's general command that "Congress shall make no law . . . abridging the freedom of speech, or of the press," has been applied to new circumstances requiring different adaptations of prior principles and precedents. The essence of that protection is that Congress may not regulate speech except in cases of extraordinary need and with the exercise of a degree of care that we have not elsewhere required. See, e. g., Schenck v. United States, 249 U. S. 47, 51-52 (1919); Abrams v. United States, 250 U. S. 616, 627-628 (1919) (Holmes, J., dissenting); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943); Texas v. Johnson, 491 U. S. 397, 418-420 (1989). At the same time, our cases have not left Congress or the States powerless to address the most serious problems. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
Over the years, this Court has restated and refined these basic First Amendment principles, adopting them more particularly to the balance of competing interests and the special
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007