Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 27 (1996)

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

Opinion of the Court

U. S. 661, 682 (1994) (Souter, J., concurring) (public employer's reasonable belief that employee engaged in unprotected speech excuses liability); United States v. United States Gypsum Co., 438 U. S. 422, 453-455, and n. 29 (1978) (" 'meeting competition' " defense in antitrust based on reasonable belief in the necessity to meet competition); Pierson v. Ray, 386 U. S. 547, 555-557 (1967) (police officer has defense to constitutional claim, as did officers of the peace at common law in actions for false arrest, when the officer reasonably believed the statute whose violation precipitated the arrest was valid). And the contours of the shield—reasonableness— constrain the discretion of the cable operator as much as they protect it. If, for example, a court had already found substantially similar programming to be beyond the pale of "patently offensive" material, or if a local authority overseeing the local public, governmental, or educational channels had indicated that materials of the type that the cable operator decides to ban were not "patently offensive" in that community, then the cable operator would be hard pressed to claim that the exclusion of the material was "reasonable." We conclude that the statute is not impermissibly vague.

For the reasons discussed, we conclude that § 10(a) is consistent with the First Amendment.

III

The statute's second provision significantly differs from the first, for it does not simply permit, but rather requires, cable system operators to restrict speech—by segregating and blocking "patently offensive" sex-related material appearing on leased channels (but not on other channels). 1992 Act, § 10(b). In particular, as previously mentioned, see supra, at 735, this provision and its implementing regulations require cable system operators to place "patently offensive" leased channel programming on a separate channel; to block that channel; to unblock the channel within 30 days of a subscriber's written request for access; and to

753

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