782
Opinion of Kennedy, J.
lations enabling cable operators to prohibit indecent programming on PEG access channels. See ante, at 734-736 (quoting statutory provisions in full and discussing interpretive regulations).*
Though the two provisions differ in significant respects, they have common flaws. In both instances, Congress singles out one sort of speech for vulnerability to private censorship in a context where content-based discrimination is not otherwise permitted. The plurality at least recognizes this as state action, ante, at 737, avoiding the mistake made by the Court of Appeals, Alliance for Community Media v. FCC, 56 F. 3d 105, 112-121 (CADC 1995). State action lies in the enactment of a statute altering legal relations between persons, including the selective withdrawal from one group of legal protections against private acts, regardless of whether the private acts are attributable to the State. Cf. Hunter v. Erickson, 393 U. S. 385, 389-390 (1969) (state action under the Fourteenth Amendment).
The plurality balks at taking the next step, however, which is to advise us what standard it applies to determine whether the state action conforms to the First Amendment. Sections 10(a) and (c) disadvantage nonobscene, indecent programming, a protected category of expression, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989), on the basis of its content. The Constitution in general does not tolerate content-based restriction of, or discrimination against, speech. R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992) ("Content-based regulations are presumptively invalid"); Carey v. Brown, 447 U. S. 455, 461-463 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). In the
*The Telecommunications Act of 1996, §§ 506(a), (b), 110 Stat. 136, 137, permits a cable operator to refuse to transmit any leased or public access program or portion thereof which contains "obscenity, indecency, or nudity." The constitutionality of the 1996 amendments, to the extent they differ from the provisions here, is not before us.
Page: Index Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 NextLast modified: October 4, 2007