Cable television

Fox News lawsuit claims cable TV not protected by First Amendment

I blogged about this lawsuit (Washington League for Greater Transparency and Ethics [WASHLITE] against Fox News) when filed last month; my view is that the lawsuit is based on expressions of opinion protected by the Constitution, and therefore prohibited by the First Amendment. But plaintiff’s response to Fox’s motion to dismiss did much more than simply assert that Fox’s statements were factually untrue – among other things, he asserted that cable TV channels are simply not protected by the first amendment:

Fox cites no Washington case or federal case that confirms that a cable television programmer/content provider has an independent First Amendment right when using a system owned and operated by a cable company. Nor did she cite a case that equates a content provider on a cable system with that of a newspaper or television station. In fact, the law is quite the opposite: cable programmers, such as Fox, have no such rights when using a cable system owned by a separate entity.

Educ. from the Denver area. Telecoms. Consortium, c. FCC, 518 US 727 (1996) is instructive. There, the Supreme Court was asked to rule on the constitutionality of certain provisions of the Cable Act which contained provisions requiring access to cable television systems for public access channels and limiting programming that ” depicts sexual or excretory activities or organs in a patently offensive manner. The Court found that some parts of the impugned provisions were constitutional and others were not.

Judges Thomas, Rehnquist and Scalia partly agreed and partly dissented and filed a separate opinion. By way of summary, these judges said that cable programmers using a private cable system owned by another have no independent constitutional right to speak over cable, as recognized by the progression of the law in a certain number of cases. Judge Thomas said:

“We have implicitly recognized in Turner that the programmer’s right to compete for channel space is derived from and subject to the editorial discretion of the operator. Like a freelance writer looking for a newspaper in which to publish newspaper editorials, a programmer is protected in seeking an outlet for cable programming, but does not have a free-standing First Amendment right to have this program.”

This statement is consistent with other cases that argue that First Amendment rights do not exist on private property. Lloyd Corp. vs. Tanner, 407 U.S. 551 (1972) (First Amendment rights do not apply to a shopping mall that is not dedicated to public use). In Lloyd, the court said:

“We find that there was no appropriation of Lloyd’s privately owned and operated shopping center for public use entitling the respondents to exercise therein the rights asserted by the First Amendment. Here the same is true: there is no evidence that any cable company operating in the state of Washington has dedicated any portion of its cable systems for public use. exists on them.

There is no perceptible difference between the cable systems operated by AT&T, Comcast, Spectrum and other cable operators and the owner of a shopping mall – both are private property. Also, Fox is not a “cable operator” under the Cable Act…. There is no evidence in this filing that Fox owns and operates cable service on a cable system in Washington State…. Fox … operates as a cable programmer as that term is used in the case law cited above. As such, it lacks First Amendment protections on the cable mount.

But That’s Completely False: Cable Channels Generally Have No First Amendment Rights against private cable operators who choose to allow them or not, but they have full First Amendment rights vis-à-vis the government. (See, for example, United States v Playboy Entertainment Group (2000)). Indeed, it’s the same as in many other media outlets: the First Amendment does not protect me against Reason’s decision to kick us off their site (or even Reason’s deletion of posts he dislikes not, even if he never tried to do so). But the First Amendment protects me from the government imposing liability on my posts (unless my posts fall under one of the standard First Amendment exceptions, such as the defamation exception).

Book publishers do not have a First Amendment right to storage space in private bookstores, but they do have a First Amendment right against the government. (See, for example, Bantam Books, Inc. v. Sullivan (1963).) The authors of the political announcement in New York Times vs. Sullivan (who were sued with the Times) would have had no First Amendment claim against the newspaper if it rejected the ad, but they had a First Amendment right not to be held legally liable for their ad. Likewise, lawsuits against cable programmers are subject to the normal First Amendment analysis, even if a cable system’s decision to eject a cable programmer would not, because the cable system would not is not a government actor.

These are pretty basic things and I think underscore how weak WASHLITE’s lawsuit is. For more, read Fox’s motion to dismiss, WASHLITE’s response, and Fox’s response, which also discuss various other First Amendment arguments.