Telephone Companies Have First Amendment Rights Too: The Constitutional Case for Entry into Cable
Laurence H. Winer
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Cardozo Arts & Entertainment Law Journal, Vol. 8, p. 257, 1990
This Article addresses what in some respects is the most disappointing aspect of the debate, the relegation of constitutional principles to secondary or tertiary status. It may seem strange to stress the first amendment rights of the "big, bad telephone companies," especially since freedom of expression is too often associated only with that of individuals or the established media. But the first amendment fundamentally concerns our common interest in assuring freedom of expression to all, not just officially preferred, speakers. Thus, the challenge is to begin from the premise that telephone companies have a right to develop, own, and operate cable systems. Government should allow their participation in the media without infringing their first amendment freedoms or stifling technological progress, while taking appropriate steps to avoid possible excesses. Part II of this Article surveys the FCC rules, statutory provisions, and court decrees that constitute the ban on telephone companies entering the cable business and the justifications offered for it. Part III begins the constitutional analysis by demonstrating that the telcos' first amendment rights are not qualified by their corporate nature, their common carrier status, or other existing media cross-ownership restrictions. Part IV first considers the proper relationship between antitrust and first amendment principles and then establishes that the ban should be treated as a prior restraint. Finally, Part V considers briefly the possible technological benefits from telco entry into cable which may be jeopardized by continuation of the ban.
Number of Pages in PDF File: 52
Keywords: Media, First Amendment, cableAccepted Paper Series
Date posted: May 21, 2009
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