820
Opinion of Thomas, J.
FCC subsequently promulgated regulations in its Second Report and Order, In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992: Indecent Programming and Other Types of Materials on Cable Access Channels, 8 FCC Rcd 2638 (1993) (Second Report and Order). The FCC interpreted Congress' reference to "sexually explicit conduct" to mean that the programming must be indecent, and its regulations therefore permit cable operators to ban indecent programming from their public access channels. Id., at 2640.
As I read these provisions, they provide leased and public access programmers with an expansive and federally enforced statutory right to transmit virtually any programming over access channels, limited only by the bounds of decency. It is no doubt true that once programmers have been given, rightly or wrongly, the ability to speak on access channels, the First Amendment continues to protect programmers from certain Government intrusions. Certainly, under our current jurisprudence, Congress could not impose a total ban on the transmission of indecent programming. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 127 (1989) (striking down total ban on indecent dial-aporn messages). At the same time, however, the Court has not recognized, as entitled to full constitutional protection, statutorily created speech rights that directly conflict with the constitutionally protected private speech rights of another person or entity.5 We have not found a First Amendment violation in statutory schemes that substantially expand the speech opportunities of the person or entity challenging the scheme.
There is no getting around the fact that leased and public access are a type of forced speech. Though the constitutionality of leased and public access channels is not directly at
5 Even in PruneYard Shopping Center v. Robins, 447 U. S. 74, 87-88 (1980), for instance, we permitted California's compelled access rule only because it did not burden or conflict with the mall owner's own speech.
Page: Index Previous 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 NextLast modified: October 4, 2007