Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 53 (1996)

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

Opinion of O'Connor, J.

Justice O'Connor, concurring in part and dissenting in part.

I agree that § 10(a) is constitutional and that § 10(b) is unconstitutional, and I join Parts I, II, III, and V, and the judgment in part. I am not persuaded, however, that the asserted "important differences" between §§ 10(a) and 10(c), ante, at 760, are sufficient to justify striking down § 10(c). I find the features shared by § 10(a), which covers leased access channels, and § 10(c), which covers public access channels, to be more significant than the differences. For that reason, I would find that § 10(c) also withstands constitutional scrutiny.

Both §§ 10(a) and 10(c) serve an important governmental interest: the well-established compelling interest of protecting children from exposure to indecent material. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); Ginsberg v. New York, 390 U. S. 629, 639-640 (1968). Cable television, like broadcast television, is a medium that is uniquely accessible to children, see ante, at 744-745, and, of course, children have equally easy access to public access channels as to leased access channels. By permitting a cable operator to prevent transmission of patently offensive sex-related programming, §§ 10(a) and 10(c) further the interest of protecting children.

Furthermore, both provisions are permissive. Neither presents an outright ban on a category of speech, such as we struck down in Sable Communications of Cal., Inc. v. FCC, supra. Sections 10(a) and 10(c) leave to the cable operator the decision whether to broadcast indecent programming, and, therefore, are less restrictive than an absolute governmental ban. Certainly § 10(c) is not more restrictive than § 10(a) in this regard.

It is also significant that neither § 10(a) nor § 10(c) is more restrictive than the governmental speech restriction we upheld in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). I agree with Justice Breyer that we should not yet under-

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