Justices divide over cable TV Supreme Court partly upholds control of indecent programs; Children's viewing at issue; Splintered decisions defer future rules for changing media


WASHINGTON -- A splintered Supreme Court yesterday upheld Congress' power to take strong action to keep children from seeing "indecent" programs on cable television.

At the same time, the court refused to write new constitutional rules to govern the Information Revolution, with several justices conceding that they were still trying to understand the legal implications of the fast-changing electronic media.

By a vote of 7-2, the court found no First Amendment problem with a section of an anti-indecency law enacted four years ago. That section uses cable-TV operators to carry out Congress' desire to block sexually explicit programs.

Station operators receive veto power over "indecent" programs that are broadcast on cable channels that they lease to $l independent programmers.

The ruling has nothing to do with "indecent" programs that cable stations offer on the channels they control themselves, although a just-passed federal law -- not at issue yesterday -- seeks to control those channels, too.

Yesterday, the court hinted that such further restrictions could survive a constitutional challenge. In addition, the ruling appears likely to allow Congress to regulate indecency on the Internet, an issue on the way to the court in a case from Philadelphia.

The court, however, struck down -- by a separate 6-3 vote -- a part of the 1992 cable law that would have required an operator who wanted to permit indecent programming to put it on a single leased channel, block it from viewers and make it difficult to unblock. That went too far, the majority said.

As a result of the ruling, if a cable operator opts to permit "indecency" on its leased channels, such material must appear on those channels, available to all who tune into them.

In a third vote, 5-4, the court nullified a part of the law that would have allowed cable operators to veto sexually explicit programs on public-access channels leased to government agencies, educational institutions and public interest groups. Congress had shown no need for that restriction, the majority said, because little indecency appears on those channels.

One major aspect of the ruling, potentially creating confusion, was that no court majority could unite on a constitutional theory for the regulation of information technology.

A majority appeared, in fact, to retreat partly from a ruling two years ago that said cable TV has more First Amendment freedom than regular broadcasting, though less than the print press.

At least when indecency and protection of children are at stake, the court's main opinion said yesterday, the court should balance free-speech rights against public policy goals, and proceed cautiously in developing constitutional standards.

Justice Stephen G. Breyer, author of the main opinion, said it would be "unwise and unnecessary" for the court to settle on a constitutional standard "good for now and for all future media."

Justice David H. Souter, who voted with the majority on all aspects of the ruling, wrote: "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."

Some other justices argued that clear constitutional standards were available for the court to use, but no standard could claim a majority of five yesterday. Thus, the development of First Amendment doctrine on new media will arise one issue and one medium at a time.

The decision drew protests from some free-speech advocates but fervent praise from anti-indecency groups and some praise from cable operators themselves.

Laurence H. Tribe, a Harvard law professor who has successfully argued free-speech claims before the court, said the ruling showed "a much more deferential approach to government regulation of speech" than the court has taken in years.

"It will be difficult to try to confine this to cable television," Tribe added, saying that the court's main opinion provided "no basis to distinguish the Internet from cable television."

Cathy Cleaver, legal studies director for the Family Research Council, said "American families fighting to shelter young children from cable television pornography won a major battle." She said the decision "greatly increases the chances" that the court will uphold the new federal law to control indecency on the Internet.

Decker Anstrom, president of the National Cable Television Association, said the decision allows cable operators "to exercise editorial control over indecent programming and to do so without being required to put it on a particular channel."

The court's ruling had to be pieced together from the reasoning in six separate opinions. The only justices voting to uphold all parts of the 1992 law were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. The only ones voting to strike down all of it were Justices Ruth Bader Ginsburg and Anthony M. Kennedy.

Splitting their votes on the law's sections were Justices Breyer, Souter, Sandra Day O'Connor and John Paul Stevens.

Government contractors

Switching from expression on cable TV to political expression, -- the court ruled 7-2 that it is unconstitutional for government officials to cut off business with contractors to punish them for criticizing the government or for backing the political opposition.

In two cases, the court declared that companies that do government contract work have First Amendment rights similar to those of employees on the government payroll. Politically inspired retaliation, the court said, violates the rights of contractors as well as of employees.

Both cases were based on claims that a loss of public business came as a form of coercion of political beliefs: in one, retaliation for criticizing government officials; in the other, retaliation for refusing to put up money and support for a mayor's re-election.

Both cases involved a withdrawal of business from a company that had provided it to a local government. It was unclear whether the rulings would protect contractors bidding for government work in the first instance.

The rulings made clear that the government could defend itself by showing that it would have cut off the contractor or denied it business for some other legitimate reason.

Only Scalia and Thomas dissented from the rulings.

Pub Date: 6/29/96

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