The Red Lion of Cable, and Beyond? - Turner Broadcasting v. FCC
Laurence H. Winer
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Cardozo Arts and Entertainment Law Journal, Vol. 15, No. 1, 1997
This Article first describes the FCC's previous, unsuccessful efforts to promulgate must-carry obligations for cable operators that could survive judicial review. It also documents Congress's response in attempting a procedural and substantive end-run around the First Amendment when it codified must-carry. This alone demonstrates the importance of stringent judicial review of Congress's action. The article then discusses the Supreme Court's default in this regard and the very "mixed bag" from its decision amounting to a give and take for broadcasters, cable operators and programmers, telephone companies, and other media. The Telecommunications Act of 1996 alters some of the immediate landscape, especially for telephone companies. But a particular concern remains in the Turner majority's willingness to overlook the clear content-based nature of government regulation and apply less than strict scrutiny. In addition, the Court's reliance on a diversity interest regarding the media, and its approval of the artificial construct of "gatekeeper" control, both raise a troubling First Amendment specter. Finally the article describes the difficulty the majority's approach engendered even for the remand panel, demonstrating the virtue in the full First Amendment freedom of the press that follows from a unified view of the mass media.
Number of Pages in PDF File: 68
Keywords: Media, first amendment, cable
Date posted: May 20, 2009
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