Communications and Society Program

Red Lion and the Constitutionality of Regulation: A Conversation Among the Justices

Red Lion and the Constitutionality of Regulation: A Conversation Among the Justices

Monroe E. Price
Professor of Law
Benjamin N. Cardozo School of Law
Yeshiva University

It's a national sport to hold a mirror to the lips of Red Lion. So is the race to find a replacement for "scarcity" as a constitutional basis for media regulation. This little paper is an unusual effort to extend this sport through a very slightly edited text of what various Justices have said about scarcity and its substitutes.¹

Let's think of this as a roundtable, a little seminar created and conducted especially for the benefit of those confused by Supreme Court opinions.

Chief Justice William Rehnquist is, naturally, in the Chair. To make him a good and prodding moderator, I have invented his words, as ought to be pretty clear (except where otherwise indicated). I hope the liberties I have taken with his persona will be taken in the spirit of making the discourse more interesting.

The main discussants at this table are Justice Anthony Kennedy, who thought he'd more or less killed Red Lion in the first Turner Broadcasting case, and Justice Clarence Thomas, who has emerged as the most articulate and firmest believer in the death of Red Lion. On the other side, if it can be called that, are Justices Stephen Breyer and David Souter, who tried to resuscitate Red Lion (and to some extent succeeded) in the last two terms through the Denver Area case and the second Turner case. Justice John Paul Stevens is at the table as well because of his opinion in the Internet case, Reno v. ACLU, and his support of Justice Breyer in Denver Area. And Justice Sandra Day O'Connor chimes in as well, largely through her recent comments in the Reno and Turner II cases. Mostly, I have not made up the words of the distinguished discussants in this roundtable. The dialogue that follows has been assembled from texts of the various Justices' actual opinions about these questions. (I have very lightly edited the resulting text, adding a few conversational transitions and removing many of the case citations to make the discussion move more quickly.)

Part I

Chief Justice Rehnquist: I have brought you together in our handsome conference room for a special session of the Justices held for the particular benefit of the President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters.

My fellow Brethren, these poor chaps have to determine, from the history of our decisions and opinions, what constitutional basis there might be for Congress to legislate broadcasting in light of the First Amendment. Many professors, representatives of industry groups, and others are trying to persuade them as to what the Constitution really means on this topic. Since we are the true experts on this question, I have agreed, just this once, to let them into our inner sanctum.

Justice Thomas, why don't you start by spelling out, very briefly, the early history of Red Lion, decided in 1969, and our own pattern of distinguishing broadcasting from newspapers.

Justice Thomas: The text of the First Amendment makes no distinction between print, broadcast, and cable media, but we have done so. In Red Lion Broadcasting Co. v. FCC, we held that, in light of the scarcity of broadcasting frequencies, the government may require a broadcast licensee "to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves." We thus endowed the public with a right of access "to social, political, esthetic, moral, and other ideas and experiences." That public right left broadcasters with substantial, but not complete, First Amendment protection of their editorial discretion.

In contrast, we have not permitted that level of government interference in the context of the print media. In Miami Herald Publishing Co. v. Tornillo, for instance, we invalidated a Florida statute that required newspapers to allow, free of charge, a right of reply to political candidates whose personal or professional character the paper assailed. We rejected the claim that the statute was constitutional because it fostered speech rather than restricted it, as well as a related claim that the newspaper could permissibly be made to serve as a public forum. We also flatly rejected the argument that the newspaper's alleged media monopoly could justify forcing the paper to speak in contravention of its own editorial discretion.

Chief Justice Rehnquist: Thanks for the background, Justice Thomas. You put the law very clearly. But it's your view-is it not?-that Red Lion is, or ought to be, dead as a doornail. Why don't you tell us of its demise, drawing from your dissent in the Denver Area case.

Justice Thomas: Our First Amendment distinctions between media, dubious from their infancy, placed cable in a doctrinal wasteland in which regulators and cable operators alike could not be sure whether cable was entitled to the substantial First Amendment protections afforded the print media or was subject to the more onerous obligations shouldered by the broadcast media.² Over time, however, we have drawn closer to recognizing that cable operators should enjoy the same First Amendment rights as the nonbroadcast media.

Chief Justice Rehnquist: We had a bunch of early decisions involving cable television and its regulation in which we hardly touched free speech claims. What about those cases? Did we suddenly see the light?

Justice Thomas: Our first ventures into the world of cable regulation involved no claims arising under the First Amendment, and we addressed only the Federal Communications Commission's (FCC's) regulatory authority over cable operators.³ Only in later cases did we begin to address the level of First Amendment protection applicable to cable operators. In Preferred Communications, for instance, when a cable operator challenged the City of Los Angeles's auction process for a single cable franchise, . . . we noted that cable operators communicate various topics "through original programming or by exercising editorial discretion over which stations or programs to include in [their] repertoire." But we then likened the operators' First Amendment interests to those of broadcasters subject to Red Lion's right of access requirement.

Five years later, in Leathers v. Medlock,⁴ we dropped any reference to the relaxed scrutiny permitted by Red Lion. Arkansas had subjected cable operators to the state's general sales tax, while continuing to exempt newspapers, magazines, and scrambled satellite broadcast television. Cable operators, among others, challenged the tax on First Amendment grounds, arguing that the state could not discriminatorily apply the tax to some, but not all, members of the press. Though we ultimately upheld the tax scheme because it was not content-based, we agreed with the operators that they enjoyed the protection of the First Amendment. We found that cable operators engage in speech by providing news, information, and entertainment to their subscribers and that they are "part of the 'press.'"

Chief Justice Rehnquist: Okay, that's the lead up. Now drop the hammer. Tell them about how the majority got fed up with dancing around this issue and tried to bury Red Lion in the case we call Turner I, the first "must-carry" case.

Justice Thomas: Two terms ago, in Turner Broadcasting System, Inc. v. FCC, we stated expressly [that] the Red Lion standard does not apply to cable television. As we said there, "[t]he rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation . . . does not apply in the context of cable regulation," and "[a]pplication of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation."⁵

Chief Justice Rehnquist: Justice Kennedy, you went further than that, didn't you?. Why don't you tell us in your own words how you set Red Lion up so as to discredit it?

Justice Kennedy: First, in Turner I, I gave a very specific reading to Red Lion. Here's what I said:

The justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium. As a general matter, there are more would-be broadcasters than frequencies available in the electromagnetic spectrum. And if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters. See FCC v. League of Women Voters ("The fundamental distinguishing characteristic of the new medium of broadcasting . . . is that broadcast frequencies are a scarce resource [that] must be portioned out among applicants").⁶

In addition, the inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees. As we said in Red Lion, "where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish."

Chief Justice Rehnquist: Didn't you then use the gentle rebuke that "courts and commentators have criticized the scarcity rationale since its inception," and language which is a frequent signal to observers of our disappointment with existing doctrine: "We have declined to question its continuing validity as support for our broadcast jurisprudence, see FCC v. League of Women Voters, and see no reason to do so here."

That was deftly done. I recognize the placement of the fingerprints. Then, given how you characterized Red Lion, how did you determine that the doctrine did not apply to the new technologies?

Justice Kennedy: The broadcast cases are inapposite to cable . . . because cable television does not suffer from the inherent limitations that characterize the broadcast medium. Indeed, given the rapid advances in fiber optics and digital compression technology, soon there may be no practical limitation on the number of speakers who may use the cable medium. Nor is there any danger of physical interference between two cable speakers attempting to share the same channel. In light of these fundamental technological differences between broadcast and cable transmission, application of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation.

Chief Justice Rehnquist: That's pretty interesting. I guess you could infer that "the rapid advances" idea also applies to digital broadcasting. Yet, I know the government harbors a love for Red Lion. Did the Solicitor General try to get you to apply it to cable, in Turner I, even absent scarcity?

Justice Kennedy: You bet.

Although the government acknowledged the substantial technological differences between broadcast and cable, it advanced a second argument (second to scarcity) for application of the Red Lion framework to cable regulation. It asserted that the foundation of our broadcast jurisprudence is not the physical limitations of the electromagnetic spectrum, but rather the "market dysfunction" that characterizes the broadcast market.

Because the cable market is beset by a similar dysfunction, the government maintained, the Red Lion standard of review should also apply to cable. While I finally agreed that the cable market suffers certain structural impediments, I found the government's argument flawed in two respects. First, as discussed above, the special physical characteristics of broadcast transmission, not the economic characteristics of the broadcast market, are what underlies our broadcast jurisprudence. Second, the mere assertion of dysfunction or failure in a speech market, without more, is not sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media.

Chief Justice Rehnquist: So, as I understand it, you were rejecting the relaxed standard of Red Lion, on any basis. Let's see how this played through later decisions.

Justice Breyer, it's your turn. You've come on to the Court as a highly touted expert on regulation and communications policy. You were one of the young hotshots long ago on the President's (that was President Johnson) Telecommunications Task Force in 1967.

Here, in the last couple of years, you've begun to assert your own view on these questions of regulating the electronic media. I see you as trying to lead the Court out of what you think is its constitutional wilderness on these questions.

In the second Turner case, decided just this term, you went out of your way to differ from Justice Kennedy. You voted with the Court to uphold the must-carry rules, but you did so by proclaiming a wholly different interpretation of Red Lion and its applicability.

Rather than distinguish Red Lion, you embraced it and redefined it as not about scarcity but about public discourse. Can we have a few of your choice words about that?

Justice Breyer: I joined Justice Kennedy's opinion in Turner II, except where he tried to pin the must-carry rules on an anticompetitive rationale.

Chief Justice Rehnquist: I remember. Justice Kennedy wanted to find a way to uphold the must-carry rules without relying on the Red Lion rationale that "scarcity" permitted a lower form of scrutiny.

Justice Breyer: I agreed with the majority that the must-carry statute must be "sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." My support rested, however, not upon the principal opinion's analysis of the statute's efforts to "promote fair competition," but rather upon its discussion of the statute's other objectives, namely "(1) preserving the benefits of free, over-the-air local broadcast television," and "(2) promoting the widespread dissemination of information from a multiplicity of sources."

Chief Justice Rehnquist: Why is that distinction important?

Justice Breyer: Whether or not the must-carry statute does or does not sensibly compensate for some significant market defect, it undoubtedly seeks to provide over-the-air viewers who lack cable with a rich mix of over-the-air programming by guaranteeing the over-the-air stations that provide such programming the extra dollars that an additional cable audience will generate. I believe that this purpose-to assure the over-the-air public "access to a multiplicity of information sources,"-provides sufficient basis for rejecting the First Amendment claim that the statute is unconstitutional.

Chief Justice Rehnquist: This sounds like you are back to something like Red Lion's emphasis on the "rights of the viewer." Are you trying to balance the rights of the over-the-air viewer against the rights of the cable operator (regardless of the scarcity argument)?

Justice Breyer: I do not deny that the compulsory carriage that creates the "guarantee" extracts a serious First Amendment price. It interferes with the protected interests of the cable operators to choose their own programming; it prevents displaced cable program providers from obtaining an audience; and it will sometimes prevent some cable viewers from watching what, in its absence, would have been their preferred set of programs. This "price" amounts to a "suppression of speech."

Chief Justice Rehnquist: That's pretty candid. Shouldn't it be enough, then, that we are depriving these cable program providers and cable viewers and operators of speech rights?

Justice Breyer: There are important First Amendment interests on the other side as well. The statute's basic noneconomic purpose is to prevent too precipitous a decline in the quality and quantity of programming choice for an ever-shrinking non-cable-subscribing segment of the public.

This purpose reflects what "has long been a basic tenet of national communications policy," namely that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public."⁷ That policy, in turn, seeks to facilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, democratic government presupposes and the First Amendment seeks to achieve. Indeed, Turner I rested in part upon the proposition that "assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment."

Chief Justice Rehnquist: Given all of this, what's the bottom line for the Advisory Committee? What's the First Amendment rule in determining whether a condition or regulation can be permitted?

Justice Breyer: With important First Amendment interests on both sides of the equation, the key question becomes one of proper fit. That question, in my view, requires a reviewing court to determine both whether there are significantly less restrictive ways to achieve Congress' over-the-air programming objectives, and also to decide whether the statute, in its effort to achieve those objectives, strikes a reasonable balance between potentially speech-restricting and speech-enhancing consequences.

Chief Justice Rehnquist: Let's see some examples of balancing. I always like circus acts.

Justice Breyer: In particular, I note (and agree) that a cable system, physically dependent upon the availability of space along city streets, at present (perhaps less in the future) typically faces little competition, that it therefore constitutes a kind of bottleneck that controls the range of viewer choice (whether or not it uses any consequent economic power for economically predatory purposes), and that some degree-at least a limited degree-of governmental intervention and control through regulation can prove appropriate when justified under O'Brien ⁸ (at least when not "content based").

I also agree that, without the must-carry statute, cable systems would likely carry significantly fewer over-the-air stations, that station revenues would therefore decline, and that the quality of over-the-air programming on such stations would almost inevitably suffer, I agree further that the burden the statute imposes upon the cable system, potential cable programmers, and cable viewers, is limited and will diminish as typical cable system capacity grows over time.

Finally, I believe that Congress could reasonably conclude that the must-carry statute will help the typical over-the-air viewer (by maintaining an expanded range of choice) more than it will hurt the typical cable subscriber (by restricting cable slots otherwise available for preferred programming). The latter's cable choices are many and varied, and the range of choice is rapidly increasing. The former's over-the-air choice is more restricted; and, as cable becomes more popular, it may well become still more restricted insofar as the over-the-air market shrinks and thereby, by itself, becomes less profitable. In these circumstances, I do not believe the First Amendment dictates a result that favors the cable viewers' interests.

Chief Justice Rehnquist: I don't want to get overly technical. But how high is the pole over which a statute has to vault? Is this Red Lion's "relaxed scrutiny" or O'Brien's "intermediate scrutiny."

Justice Breyer: These and other similar factors discussed by the majority, lead me to agree that the statute survives "intermediate scrutiny," whether or not the statute is properly tailored to Congress's purely economic objectives.

Chief Justice Rehnquist: If I get it straight, Justice Breyer, you thought it was OK to have must-carry rules on cable because that will lead to a healthier over-the-air sector and that means greater public debate. Justice O'Connor, you look amazingly uncomfortable. I know you objected wildly to Justice Kennedy's and Justice Breyer's analyses.

Justice O'Connor: In sustaining the must-carry provisions of the Cable Act, the Court, in Turner II, ignored the main justification of the statute urged [by the government and the broadcasters and others] and subjected restrictions on expressive activity to an inappropriately lenient level of scrutiny.

The principal opinion then misapplied the analytic framework it chose, exhibiting an extraordinary and unwarranted deference for congressional judgments, a profound fear of delving into complex economic matters, and a willingness to substitute untested assumptions for evidence.

Chief Justice Rehnquist: That's skewing poor Justice Kennedy, author of the principal opinion in both the Turner decisions. He was just trying to keep Red Lion interred while sustaining the must-carry rules. Why don't you just stick to attacking Justice Breyer? I think that will be of more use to the Advisory Committee.

Justice O'Connor: Justice Breyer disavowed the principal opinion's position on anticompetitive behavior, and instead treated the must-carry rules as a "speech-enhancing" measure designed to ensure access to "quality" programming for non-cable households. Neither the principal opinion nor the partial concurrence explains the nature of the alleged threat to the availability of a "multiplicity of broadcast programming sources," if that threat does not arise from cable operators' anticompetitive conduct. Such an approach makes it impossible to discern whether Congress was addressing a problem that is "real, not merely conjectural," and whether must-carry addresses the problem in a "direct and material way."

Chief Justice Rehnquist: You weren't all negative. What caught my eye in reading your dissent, and what might be interesting to the Advisory Committee, was your suggestion that a subsidy scheme for over-the-air broadcasters could be constitutional even though reserving space for them was not.

Justice O'Connor: Thanks, Chief. To the extent that Justice Breyer saw must-carry as a "speech-enhancing" measure designed to guarantee over-the-air broadcasters "extra dollars," it is unclear why subsidies would not fully serve that interest.

Chief Justice Rehnquist: Isn't that impractical? How would you fashion a subsidy?

Justice O'Connor: If the government is indeed worried that imprecision in allocation of subsidies would prop up stations that would not survive even with cable carriage, then it could tie subsidies to a percentage of stations' advertising revenues (or, for public stations, member contributions), determined by stations' access to viewers. For example, in a broadcast market where 50 percent of television-viewing households subscribe to cable, a broadcaster has access to all households without cable as well as to those households served by cable systems on which the broadcaster has secured carriage. If a broadcaster is carried on cable systems serving only 20 percent of cable households (i.e., 10 percent of all television-viewing households in the broadcast market), the broadcaster has access to 60 percent of the television-viewing households. If the government provided a subsidy to compensate for the loss in advertising revenue or member contributions that a station would sustain by virtue of its failure to reach 40 percent of its potential audience, it could ensure that its allocation would do no more than protect those broadcasters that would survive with full access to television-viewing households.

Chief Justice Rehnquist: Thanks, Justice O'Connor, for that imaginative suggestion. That sounds more like a statute than an opinion.

I want to return to Justice Breyer. We've talked about your differences with most of my colleagues by your insistence on Red Lion's emphasis on rich public discussion and debate. There seems to be (at least) one other major important difference between you and Justice Kennedy. He and Justice Thomas and Justice O'Connor want to have rules that are fairly clear, that can be understood by members of the Advisory Committee.

If you were in charge, what would you tell the Advisory Committee?

Justice Breyer: The history of this Court's First Amendment jurisprudence 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.⁹

Chief Justice Rehnquist: Okay, that sounds a little more tentative and much mushier that our careful three-tier tests. It sounds to me, reading your Denver Area opinion, that you want to get rid of what we have tried to represent as "bright lines" or "clear categories" and throw the whole thing up for grabs. Frankly, I was amazed in the recent Denver Area case, your maiden opinion in the electronic media field, at how you gained a plurality, and almost five votes, for a wholly different way of looking at Red Lion and our subsequent cases.

Can you try, with some economy, to let this Advisory Committee in on your view?

Justice Breyer: Over the years, this Court has restated and refined basic First Amendment principles, adopting them more particularly to the balance of competing interests and the special circumstances of each field of application. For example, Red Lion Broadcasting Co. v. FCC employed a highly flexible standard in response to the scarcity problem unique to over-the-air broadcast.¹⁰

This tradition teaches that the First Amendment embodies an overarching commitment to protect speech from government regulation through close judicial scrutiny, thereby enforcing the Constitution's constraints, but without imposing judicial formulae so rigid that they become a straitjacket that disables government from responding to serious problems. This Court, in different contexts, has consistently held that the government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech.

Chief Justice Rehnquist: I recognize the swipe at our First Amendment jurisprudence. Who are you calling "rigid," and which of our "judicial formulae" are you saying constitutes a "straitjacket?"

Sorry-I don't want to depart from my role as moderator. Let me take it slower: I suppose you are holding out for a broader standard, one that's more open and does not necessarily adopt one of the specific rules that have been previously articulated by the Court.

For my money, I thought the Court had worked pretty hard at developing very specific constitutional standards for different media. That's where we ask how broadcasting is different from cable and get into the whole scarcity business.

Shouldn't we tell these fine people appointed by the president exactly which rules apply as scarcity vanishes? Is it really enough that the government is "responding to serious problems?" The government always thinks that it is responding to serious problems.

Justice Breyer: I didn't agree with Justices Kennedy and Thomas in Denver Area and I wished I'd had a majority to say what should be done in these areas of new technology.

Justices Kennedy and Thomas would have us declare which, among the many applications of the general approach that this Court has developed over the years, we should apply to cable television, for example in the case of indecency on cable leased channels. But no definitive choice among competing analogies (broadcast, common carrier, bookstore) allows us to declare a rigid single standard, good for now and for all future media and purposes.

Chief Justice Rehnquist: But doesn't that approach leave us-and the Advisory Committee-drifting at sea with no clear rules?

Justice Breyer: I would not reject all the more specific formulations of the standards-they appropriately cover the vast majority of cases involving government regulation of speech. Rather, aware as we are of the changes taking place in the law, the technology, and the industrial structure, related to telecommunications,¹¹ I-and the Justices who joined me in the plurality in Denver Area-believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now.

Chief Justice Rehnquist: Taxpayers as well as some of your colleagues may think we're paid to make rules that are useful guides. Some may even say that the First Amendment is stronger if there are clear rules as to when the Constitution applies. I suppose you will make the argument that there's too much change in the air to have clarity now.

Justice Breyer: I agree with what was said in Columbia Broadcasting, namely that "[t]he problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded ten years hence."¹²

I therefore think it premature to answer the broad questions that [many people want answered] in their efforts to find a definitive analogy, deciding, for example, the extent to which private property can be designated a public forum, whether public access channels are a public forum, whether the government's viewpoint-neutral decision to limit a public forum is subject to the same scrutiny as a selective exclusion from a pre-existing public forum, whether exclusion from common carriage must for all purposes be treated like exclusion from a public forum, and whether the interests of the owners of communications media always subordinate the interests of all other users of a medium.

Chief Justice Rehnquist: Let's get specific, looking, for example, at how you dealt with the Congress's effort, in the 1992 Cable Act, to regulate indecency on leased channels and permit cable operators to exclude it. In Turner I, I thought we buried Red Lion, so why don't we treat cable like a newspaper? I know what your answer was in Turner II (appealing to Red Lion's public sphere foundations), but do you have more to say about it than that?

Justice Breyer: The Court's distinction in Turner I, between cable and broadcast television, relied on the inapplicability of the spectrum scarcity problem to cable.

While that distinction was relevant in Turner, to the justification for structural regulations at issue there (the "must carry" rules), it has little to do with a case that involves the effects of television viewing on children. Those effects are the result of how parents and children view television programming, and how pervasive and intrusive that programming is. In that respect, cable and broadcast television differ little, if at all.

Chief Justice Rehnquist: That's pretty amazing. Are you telling me that "scarcity" is sometimes, but not always the way to think about what standard should apply?

Justice Thomas, help me here!

Justice Thomas: I disagree with Justice Breyer's detailed explanation of why he believes it is "unwise and unnecessary," to choose a standard against which to measure petitioners' First Amendment claims. He largely disregards our attempt in Turner I to define that standard. His attempt to distinguish Turner on the ground that it did not involve "the effects of television viewing on children," is meaningless because that factual distinction has no bearing on the existence and ordering of the free speech rights asserted in these cases.

Chief Justice Rehnquist: Now I get the difference, and here's the situation as far as Justice Breyer goes: Red Lion's scarcity basis may no longer apply, but-as far as must-carry is concerned, Red Lion's public sphere foundation still lives. And if we're dealing with indecency on cable, scarcity isn't the relevant doctrine anyway.

Maybe Justice Stevens can shed light on this: You've been around for a while. Do you agree with Justice Breyer? Do you agree that it's not the specific medium that's the key, but more the context?

You voted with Justice Breyer in Denver Area, as did Justice Souter. That's a pretty big chunk of the Court.

Justice Stevens: Like Justice Breyer and Justice Souter, I am convinced that it would be unwise to take a categorical approach to the resolution of novel First Amendment questions arising in an industry as dynamic as this.

Just as Congress may legitimately limit access to certain cable channels to unaffiliated programmers, I believe it may also limit, within certain reasonable bounds, the extent of the access that it confers upon those programmers.¹³ If the government had a reasonable basis for concluding that there were already enough classical musical programs or cartoons being telecast-or, perhaps, even enough political debate-I would find no First Amendment objection to an open access requirement that was extended on an impartial basis to all but those particular subjects. A contrary conclusion would ill-serve First Amendment values by dissuading the government from creating access rights altogether.

Chief Justice Rehnquist: Justice Souter, you usually are pretty clear about these things yourself.

Are you really with the crowd that says that this is a time of waiting and watching, of trying to experiment while technology develops? Don't we need rules, especially in the First Amendment area?

Justice Souter: I do not think the fact that we deal, say, with cable transmission necessarily suggests that a simple category subject to a standard level of scrutiny ought to be recognized at this point. While we have found cable television different from broadcast with respect to the factors justifying intrusive access requirements under the rule in Red Lion,¹⁴ Justice Breyer's plurality opinion in Denver Area rightly observed that the characteristics of broadcast radio that rendered indecency particularly threatening in Pacifica,¹⁵ that is, its intrusion into the house and accessibility to children, are also present in the case of cable television.

It would seem, then, that the appropriate category for cable indecency should be as contextually detailed as the Pacifica example, and settling upon a definitive level-of-scrutiny rule of review for so complex a category would require a subtle judgment.

Sharply differing with me and Justice Breyer in Denver Area, Justice Kennedy stressed the worthy point that First Amendment values generally are well-served by categorizing speech protection according to the respective characters of the expression, its context, and the restriction at issue. Reviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said.¹⁶

As a result, he saw no warrant there for anything but a categorical and rule-based approach applying a fixed level of scrutiny, the strictest, to judge the content-based provisions of the statute. He accordingly faulted us for declining to decide the precise doctrinal categories that should govern the issue at hand.

The value of the categorical approach generally to First Amendment security cause me to explain, as I have above, why I joined Justice Breyer's and the Court's unwillingness to announce a definitive categorical analysis in Denver Area.

Chief Justice Rehnquist: This is a double lollapalooza. First, you are saying that "indecency" regulation may have little to do with whether a medium has scarcity characteristics or not. I will surely want to get back to that question, with Justice Stevens, the author of the Reno Internet decision.

But I want to keep with the Red Lion question. What Justice Thomas was saying, and what I thought was the case, is the following: we have different media and different rules for each one. We then determine whether the basis (like scarcity) for a particular rule still survives in the real world. If it doesn't, then the rule is undermined and we make a new rule. Isn't that what Turner I was all about? And shouldn't we try to find a rule for cable and then one for the Internet? What you did in Denver Area seems inconsistent with that mandate.

Justice Souter: There is even more to be considered, enough more to demand a subtlety tantamount to prescience.

All of the relevant characteristics of cable are presently in a state of technological and regulatory flux. Recent and far-reaching legislation not only affects the technical feasibility of parental control over children's access to undesirable material,¹⁷ but portends fundamental changes in the competitive structure of the industry and, therefore, the ability of individual entities to act as bottlenecks to the free flow of information.¹⁸

Chief Justice Rehnquist: Are you arguing for a new jurisprudence at a time of change? Some might call that creative; others might call it irresponsible ducking and a failure to give guidance to good people like those appointed to the Advisory Committee. Maybe another word is needed here from my pal, Justice Thomas.

Justice Thomas: In the process of deciding not to decide on a governing standard, Justice Breyer [and his friends] purport to discover in our cases an expansive, general principle permitting government to "directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech." This heretofore unknown standard is facially subjective and openly invites balancing of asserted speech interests to a degree not ordinarily permitted. It is true that the standard I endorse lacks the "flexibility" inherent in the plurality's balancing approach, but that relative rigidity is required by our precedents and is not of my own making.

Chief Justice Rehnquist: Okay. I sort of agree. But don't you want to complete your thought, Justice Souter?

Justice Souter: As cable and telephone companies begin their competition for control over the single wire that will carry both their services, we can hardly settle rules for review of regulation on the assumption that cable will remain a separable and useful category of First Amendment scrutiny. And as broadcast, cable, and the cybertechnology of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others.

Accordingly, in charting a course that will permit reasonable regulation in light of the values in competition, we have to accept the likelihood that the media of communication will become less categorical and more protean. Because we cannot be confident that for purposes of judging speech restrictions it will continue to make sense to distinguish cable from other technologies, and because we know that changes in these regulated technologies will enormously alter the structure of regulation itself, we should be shy about saying the final word today about what will be accepted as reasonable tomorrow.

Chief Justice Rehnquist: I've heard this song somewhere. I suppose you, like everyone else, are going to quote Larry Lessig.

Justice Souter: In my own ignorance I have to accept the real possibility that "if we had to decide today . . . just what the First Amendment should mean in cyberspace, . . . we would get it fundamentally wrong."¹⁹

The upshot of appreciating the fluidity of the subject that Congress must regulate is simply to accept the fact that not every nuance of our old standards will necessarily do for the new technology, and that a proper choice among existing doctrinal categories is not obvious. Rather than definitively settling the issue now, Justice Breyer wisely reasoned by direct analogy rather than by rule, concluding that the speech and the restriction at issue in this case may usefully be measured against the ones at issue in Pacifica.²⁰

Chief Justice Rehnquist: Does this mean-for the Advisory Committee-that there is no rule now, that all that exists is a context of cases from the past, and that no "simple formula" can be extracted from our jurisprudence as you see it?

Justice Souter: If that means it will take some time before reaching a final method of review for cases like this one, there may be consolation in recalling that sixteen years passed from Roth v. United States to Miller v. California before the modern obscenity rule jelled; that it took over forty years, from Hague v. CIO to Perry Ed. Assn. v. Perry Local Educators' Assn., for the public forum category to settle out; and that a round half-century passed before the clear and present danger of Schenck v. United States evolved into the modern incitement rule of Brandenburg v. Ohio.

I cannot guess how much time will go by until the technologies of communication before us today have matured and their relationships become known. But until a category of indecency can be defined both with reference to the new technology and with a prospect of durability, the job of the courts will be just what Justice Breyer did in Denver Area: recognizing established First Amendment interests through a close analysis that constrains the Congress, without wholly incapacitating it in all matters of the significance apparent here, maintaining the high value of open communication, measuring the costs of regulation by exact attention to fact, and compiling a pedigree of experience with the changing subject. These are familiar judicial responsibilities in times when we know too little to risk the finality of precision, and attention to them will probably take us through the communications revolution. Maybe the judicial obligation to shoulder these responsibilities can itself be captured by a much older rule, familiar to every doctor of medicine: "First, do no harm."

Chief Justice Rehnquist: Justice Thomas, did you hear that: "Forty years!" "Do no harm!" I hear you grumbling.

Do you want to respond here? Maybe you can be more realistic. After all, the Advisory Committee is supposed to report later this year and can't wait forty years. President Clinton will be gone by then, and Vice President Gore as well, no matter what happens in 2000.

Justice Thomas: Curiously, Justices Souter, Stevens, and Breyer seem to rely on "changes taking place in the law, the technology, and the industrial structure, relating to telecommunications," to justify its avoidance of traditional First Amendment standards. If anything, as they recognize themselves, those recent developments-which include the growth of satellite broadcast programming and the coming influx of video dialtone services-suggest that local cable operators have little or no monopoly power and create no programming bottleneck problems, thus effectively negating the primary justifications for treating cable operators differently from other First Amendment speakers.

Chief Justice Rehnquist: Justice Thomas has a point. And Justice Stevens, you seemed pretty ready to reach a comprehensive view on how to decide constitutional questions generally with respect to the Internet in Reno v. ACLU. What you said there should be of interest to the Advisory Committee.

Let's start with what you said about Red Lion. All of a sudden, you seemed to say, it wasn't necessarily about scarcity either.

Justice Stevens: In Reno v. ACLU, I wrote that in past cases, "the Court relied on the history of extensive government regulation of the broadcast medium," as a ground for "special justification for the broadcast media that are not applicable to other speakers." I asserted that the Internet was different: "Neither before nor after the enactment of the CDA [Communications Decency Act] have the vast democratic fora of the Internet been subject to the type of government and regulation that has attended the broadcast industry."

Chief Justice Rehnquist: I'll wait to say what that rationale means for digital spectrum. Still, what about "scarcity"? It's pretty obvious that channels on the Internet aren't scarce.

Justice Stevens: I agree. I said that "unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "'scarce' expressive commodity." Note however the adjective "expressive." I also said that the Internet "provides relatively unlimited, low-cost capacity for communication of all kinds.

Chief Justice Rehnquist: That also might be relevant for digital spectrum. You had two pretty interesting and possibly relevant footnote in Reno. I know that we often stuff material into footnotes that we want to include, but don't know how.

Justice Stevens: In one footnote I distinguished Pacifica on the basis of an often overlooked argument by Judge Leventhal, who wrote an opinion dissenting in the Court of Appeals. Here's what I said:

When Pacifica was decided, given that radio stations were allowed to operate only pursuant to federal license, and the Congress had enacted legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of the radio audience might infer some sort of official or societal approval of whatever was heard over the radio. No such risk attends messages received through the Internet, which is not supervised by any federal agency.

Chief Justice Rehnquist: That's cryptic. Why didn't you just announce that the Internet should be a regulation-free zone, just like newspapers?

Justice Stevens: That was another footnote. One of the three judges in the District Court would have adopted a test that gave the Internet "the highest protection from government intrusion." In a footnote, I quoted Judge Dalzell's views: "Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face. . . . First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers." I dryly concluded that "because appellees do not press this argument" (that some super-standard be imposed), "we do not consider it."

Part II

Chief Justice Rehnquist: I hope everyone enjoyed coffee and lunch. Let's close this discussion with a couple of clean-up points that the Advisory Committee might find useful.

In our discussion this morning, we avoided the question which is pretty central, that of whose rights are involved. Can Congress just call cable or other multicasters "common carriers" and regulate them differently on the ground that they are not speakers?

Justice Thomas, this was a really interesting part of your partial and effective dissent-in which I and Justice Scalia joined-in Denver Area, questioning the entire premise of most of the Justices that the plaintiffs-those who wanted access-had standing to challenge the federal statute.

Justice Thomas: For many years, we failed to articulate how and to what extent the First Amendment protects cable operators, programmers, and viewers from state and federal regulation. I thought it was time, in Denver Area that we did so, and I could not go along with the plurality's assiduous attempts to avoid addressing that issue openly.

The plaintiffs in Denver Area were all cable viewers or access programmers or their representative organizations, not cable operators. It is not intuitively obvious that the First Amendment protects the interests petitioners assert, and neither petitioners nor the plurality adequately explained the source or justification of those asserted rights.

The First Amendment challenge, if one is to be made, must come from the party whose constitutionally protected freedom of speech has been burdened. Viewing the federal access requirements as a whole, it is the cable operator, not the access programmer, whose speech rights have been infringed. Consequently, it is the operator, and not the programmer, whose speech has arguably been infringed by these provisions.

Chief Justice Rehnquist: Someone in the audience is waving enthusiastically: What are you trying to say?

Anonymous Observer: Mr. Chief Justice, with all due respect, how do you reconcile your going along with Justice Thomas in Denver Area with your eloquent statement in Pacific Gas and Electric²¹ about the speech rights of corporations? I have your earlier statement right here:

Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an "intellect" or "mind" for freedom of conscience purposes is to confuse metaphor with reality. Corporations generally have not played the historic role of newspapers as conveyers of individual ideas and opinion.

In extending positive free speech rights to corporations, this Court drew a distinction between the First Amendment rights of corporations and those of natural persons. See First National Bank of Boston v. Bellotti and Consolidated Edison Co. v. Public Service Comm'n of N. Y. It recognized that corporate free speech rights do not arise because corporations, like individuals, have any interest in self-expression. It held instead that such rights are recognized as an instrumental means of furthering the First Amendment purpose of fostering a broad forum of information to facilitate self-government.

The interest in remaining isolated from the expressive activity of others, and in declining to communicate at all, is for the most part divorced from this broad public forum purpose of the First Amendment. The right of access here constitutes an effort to facilitate and enlarge public discussion; it therefore furthers rather than abridges First Amendment values. Likewise, because the interest on which the constitutional protection of corporate speech rests is the societal interest in receiving information and ideas, the constitutional interest of a corporation in not permitting the presentation of other distinct views clearly identified as those of the speaker is de minimis.

Chief Justice Rehnquist: I am the moderator here, and therefore will not comment on any opinion I might have had or might have now.

Let's get back to Justice Thomas. I think that there's an important tie between how we think of Red Lion and who has any right at all to complain.

Justice Thomas: In Turner, by adopting much of the print paradigm, and by rejecting Red Lion, we adopted with it a considerable body of precedent that governs the respective First Amendment rights of competing speakers. In Red Lion, we had legitimized consideration of the public interest and emphasized the rights of viewers, at least in the abstract. Under that view, "it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."

After Turner, however, that view can no longer be given any credence in the cable context. It is the operator's right that is preeminent. If Tornillo and Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal. are applicable, and I think they are, then, when there is a conflict, a programmer's asserted right to transmit over an operator's cable system must give way to the operator's editorial discretion. Drawing an analogy to the print media, for example, the author of a book is protected in writing the book, but has no right to have the book sold in a particular book store without the store owner's consent. Nor can government force the editor of a collection of essays to print other essays on the same subject.

The Court in Turner found that the FCC's must-carry rules implicated the First Amendment rights of both cable operators and cable programmers. The rules interfered with the operators' editorial discretion by forcing them to carry broadcast programming that they might not otherwise carry, and they interfered with the programmers' ability to compete for space on the operators' channels.

We implicitly recognized in Turner that the programmer's right to compete for channel space is derivative of, and subordinate to, the operator's editorial discretion. Like a freelance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no freestanding First Amendment right to have that programming transmitted. Likewise, the rights of would-be viewers are derivative of the speech rights of operators and programmers. Viewers have a general right to see what a willing operator transmits, but, under both Tornillo and Pacific Gas, they certainly have no right to force an unwilling operator to speak.

Chief Justice Rehnquist: That sounds pretty relevant to the Advisory Committee's concerns, if they go along with your view.

Let's wrap this up-no more outbursts-with a discussion of whose property we're dealing with any way. Can Congress call cable or the Internet or a satellite platform a public forum and regulate it accordingly? That would be pretty sweeping.

Justice Thomas, you dealt with this question-differing with Justice Kennedy-in your dissent in Denver Area.

Justice Thomas: A group of the petitioners in Denver Area, like the Alliance for Community Media, argued that public access channels are public fora in which they have First Amendment rights to speak and that the statute [allowing cable operators to kick them off for indecent and other speech] was invalid because it imposed content-based burdens on those rights. I do not agree that public access channels are public fora.

We have said that government may designate public property for use by the public as a place for expressive activity and that, so designated, that property becomes a public forum.

Cable systems are not public property. Cable systems are privately owned and privately managed, and petitioners point to no case in which we have held that government may designate private property as a public forum. The public forum doctrine is a rule governing claims of "a right of access to public property," and has never been thought to extend beyond property generally understood to belong to the government.

It may be true that title is not dispositive of the public forum analysis, but the nature of the regulatory restrictions placed on cable operators by local franchising authorities are not consistent with the kinds of governmental property interests we have said may be formally dedicated as public fora. Our public forum cases have involved property in which the government has held at least some formal easement or other property interest permitting the government to treat the property as its own in designating the property as a public forum. That is simply not true in these cases. Pursuant to federal and state law, franchising authorities require cable operators to create public access channels, but nothing in the record suggests that local franchising authorities take any formal easement or other property interest in those channels that would permit the government to designate that property as a public forum.

Similarly, assertion of government control over private property cannot justify designation of that property as a public forum. We have expressly stated that neither government ownership nor government control will guarantee public access to property. Government control over its own property or private property in which it has taken a cognizable property interest, like the theater in Southeastern Promotions,²² is consistent with designation of a public forum.

But we have never even hinted that regulatory control, and particularly direct regulatory control over a private entity's First Amendment speech rights, could justify creation of a public forum. Properly construed, our cases have limited the government's ability to declare a public forum to property the government owns outright, or in which the government holds a significant property interest consistent with the communicative purpose of the forum to be designated.

Nor am I convinced that a formal transfer of a property interest in public access channels would suffice to permit a local franchising authority to designate those channels as a public forum. In no other public forum that we have recognized does a private entity, owner or not, have the obligation not only to permit another to speak, but to actually help produce and then transmit the message on that person's behalf. Cable operators regularly retain some level of managerial and operational control over their public access channels, subject only to the requirements of federal, state, and local law and the franchise agreement. In more traditional public fora, the government shoulders the burden of administering and enforcing the openness of the expressive forum, but it is frequently a private citizen, the operator, who shoulders that burden for public access channels. For instance, it is often the operator who must accept and schedule an access programmer's request for time on a channel.

And, in many places, the operator is actually obligated to provide production facilities and production assistance to persons seeking to produce access programming. Moreover, unlike a park picketer, an access programmer cannot transmit its own message. Instead, it is the operator who must transmit, or "speak," the access programmer's message. That the speech may be considered the operator's is driven home by 47 U.S.C. Sec. 559, which authorizes a fine of up to $10,000 and two years' imprisonment for any person who "transmits over any cable system any matter which is obscene." See also Sec. 558 (making operators immune for all public access programming, except that which is obscene).

Chief Justice Rehnquist: That has to be the last word. I have to go across the street and beg Congress to appoint a few more judges. I know that some of my Brethren want to continue and differ with Justice Thomas. You can continue informally.

Thanks, then, to all of you, to The Aspen Institute and to the Advisory Committee. I hope this extraordinary little session has helped to clarify your thinking.

Endnotes

1. The point has been to make the discussion as human and accessible as possible, but this is not always easy as will be painfully clear. I have often removed references to citations to make the text move more quickly. The cases discussed in this Conversation are as follows (in chronological order): Red Lion v. FCC, 395 U.S. 367 (1969); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Pacific Gas and Elec. Co. v. Public Utilities Com'n of California, 475 U.S.1 (1986); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994); Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 2374 (1996), Turner Broadcasting System v. FCC, 520 U.S. 180 (1997); and Reno v. ACLU, 117 S.Ct. 2329 (1997).
2. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986): "In assessing First Amendment claims concerning cable access, the Court must determine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis."
3. See United States v. Southwestern Cable Co., 392 U.S. 157, 20 L. Ed. 2d 1001, 88 S.Ct. 1994 (1968); United States v. Midwest Video Corp., 406 U.S. 649, 32 L. Ed. 2d 390, 92 S.Ct. 1860 (1972) (Midwest Video I). Our decisions in Southwestern Cable and Midwest Video I were purely regulatory and gave no indication whether, or to what extent, cable operators were protected by the First Amendment.
4. 499 U.S. 439, 113 L. Ed. 2d 494, 111 S.Ct. 1438 (1991).
5. While members of the Court disagreed about whether the must-carry rules imposed by Congress were content-based, and therefore subject to strict scrutiny, there was agreement that cable operators are generally entitled to much the same First Amendment protection as the print media. (It is true that Justice Stevens said, concurring in part and concurring in judgment, that the "[c]able operators' control of essential facilities provides a basis for intrusive regulation that would be inappropriate and perhaps impermissible for other communicative media," but that is a different point.)
6. FCC v. League of Women Voters of California, 468 U.S. 364 (1984).
7. Turner (1994), 663 (quoting United States v. Midwest Video Corp., 406 U.S. 649, 668, n. 27, 32 L. Ed. 2d 390, 92 S.Ct. 1860 (1972) (plurality opinion) (quoting Associated Press v. United States, 326 U.S. 1, 20, 89 L. Ed. 2013, 65 S.Ct. 1416 (1945) (internal quotation marks omitted)); see also FCC v. WNCN Listeners Guild, 450 U.S. 582, 594, 67 L. Ed. 2d 521, 101 S.Ct. 1266 (1981).
8. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L. Ed.2d 672 (1986).
9. See, e.g., Schenck v. United States, 249 U.S. 47, 51-52, 63 L. Ed. 470, 39 S.Ct. 247 (1919); Abrams v. United States, 250 U.S. 616, 627-628, 63 L. Ed. 1173, 40 S.Ct. 17 (1919) (Holmes, J., dissenting); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 639, 87 L. Ed. 1628, 63 S.Ct. 1178 (1943); Texas v. Johnson, 491 U.S. 397, 418-420, 105 L. Ed. 2d 342, 109 S.Ct. 2533 (1989). At the same time, Supreme Court 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, 86 L. Ed. 1031, 62 S.Ct. 766 (1942); Young v. American Mini Theatres, Inc. 427 U.S. 50, 49 L. Ed. 2d 310, 96 S.Ct. 2440 [*26] (1976); FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S.Ct. 3026 (1978).
10. See also, for examples of past tests, Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231-232, 95 L. Ed. 2d 209, 107 S.Ct. 1722 (1987) (requiring "compelling state interest" and a "narrowly drawn" means in context of differential taxation of media); Sable Communications of California, Inc. v. FCC, 492 U.S. at 126, 131 (1989)(applying "compelling interest," "least restrictive means," and "narrowly tailored" requirements to indecent telephone communications); [*27] Turner (1997), 512 U.S. at (slip op., at 16) (using "heightened scrutiny" to address content-neutral regulations of cable system broadcasts); and Central Hudson Gas & Elec. Corp., 447 U.S. at 566 (restriction on commercial speech cannot be "more extensive than is necessary" to serve a "substantial" government interest).
11. See, e.g., Telecommunications Act of 1996, 110 Stat. 56; S. Rep. No. 104-23 (1995); H. R. Rep. No. 104-204 (1995).
12. 412 U.S. at 102.
13. I cited Red Lion for this proposition because it approved an access requirement limited to "matters of great public concern."
14. This finding is from Turner I, which found that Red Lion's spectrum scarcity rationale had no application to cable.
15. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
16. See, e.g., Blasi, "The Pathological Perspective and the First Amendment," 85 Colum. L. Rev. 449, 474 (1985) (arguing that "courts . . . should place a premium on confining the range of discretion left to future decision makers who will be called upon to make judgments when pathological pressures are most intense").
17. See, e.g., Telecommunications Act of 1996, @ 551, Pub. L. 104-104, 110 Stat. 139-142 (8 Feb. 1996) (provision for "V-chip" to block sexually explicit or violent programs).
18. See Telecommunications Act of 1996, Title III, 110 Stat. 114-128 (promoting competition in cable services).
19. Larry Lessig, "The Path of Cyberlaw," 104 Yale Law Journal 1743, 1745 (1995).
20. See, e.g., Cass Sunstein, "On Analogical Reasoning," 106 Harv. L. Rev. 741, 786 (1993) (observing that analogical reasoning permits "greater flexibility . . . over time"); Kathleen Sullivan, "Post-Liberal Judging: The Roles of Categorization and Balancing," 63 U. Colorado Law Review 293, 295, n. 6 (1992) (noting that "once the categories are established . . . the categorical mode leads to briefs and arguments that concentrate much more on threshold characterization than on comparative analysis").
21. Pacific Gas and Elec. Co. v. Public Utilities Com'n of California, 475 U.S.1 (1986).
22. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).