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Monday, May 18, 2020

Lawsuit Against Fox News Claims Cable Television Is Unprotected by the First Amendment

By Eugene Volokh - May 18, 2020 at 02:20PM

I blogged about this lawsuit (Wash. League for Increased Transparency & Ethics [WASHLITE] v. Fox News) when it was filed last month; my view is that the suit is based on constitutionally protected expressions of opinion, and therefore barred by the First Amendment. But the plaintiff's response to Fox's motion to dismiss did much more than just argue that Fox's statements were factually false—among other things, it claimed that cable television channels just aren't protected by the First Amendment:

Fox cites to no Washington case or federal case which confirms that a cable television programmer/content provider has an independent First Amendment right when using a system owned and operated by a cable operator. Nor has it cited to a case that equates a content provider on a cable system to that of a newspaper or broadcast television station. In fact, the law is just the opposite: cable programmers, such as Fox is, have no such rights when using a cable system owned by a separate entity.

Denver Area Educ. Telcoms. Consortium, v. FCC, 518 U.S. 727 (1996) is instructive. There, the Supreme Court was asked to decide upon the constitutionality of certain provisions of the Cable Act which contained provisions requiring access to cable television systems for public access channels and restricted programming which "depicted sexual or excretory activities or organs in a patently offensive manner." The Court concluded that portions of the challenged provisions were constitutional, and others were not.

Justices Thomas, Rehnquist and Scalia concurred in part and dissented in part and filed a separate opinion. By way of a summary, these Justices stated that cable programmers using a private cable system owned by another have no independent constitutional right to speak through the cable medium as recognized by the progression of the law through a number of cases. Justice Thomas stated:

"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 free-lance 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 free-standing First Amendment right to have that programming transmitted."

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

"We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. Here, the same is true: there is no evidence that any cable operator operating in Washington State has dedicated any portion of their cable systems to public use. Given this, noFirst Amendment rights exist on them."

There is no discernable difference between the cable systems operated by AT&T, Comcast, Spectrum and other cable operators and the owner of a shopping mall—both constitute private property. Further, Fox is not a "cable operator" under the Cable Act…. There is no evidence in this record that Fox owns and operates a cable service over a cable system in Washington State…. Fox … operates as a cable programmer as that term is used in case law as above cited. As such, it does not have First Amendment protections on the cable medium.

But this is flat wrong: Cable channels generally have no First Amendment rights against the private cable operators that choose whether or not to allow them, but they have full First Amendment rights vis-à-vis the government. (See, e.g., U.S. v. Playboy Entertainment Group (2000)). Indeed, that's the same as in many other media: The First Amendment doesn't protect me against Reason's deciding to kick us off their site (or even Reason's deleting posts it doesn't like, not that it's ever tried to do that). But the First Amendment does protect me against the government imposing liability on my posts (unless my posts fall within one of the standard First Amendment exceptions, such as the libel exception).

Book publishers have no First Amendment right to shelf space in privately owned bookstores, but they do have a First Amendment right against the government. (See, e.g., Bantam Books, Inc. v. Sullivan (1963).) The submitters of the political ad in New York Times v. Sullivan (who were sued together with the Times) would have had no First Amendment claim against the newspaper if the newspaper had rejected the ad—but they did have a First Amendment right not to be held legally liable for their ad. Likewise, lawsuits against cable programmers are subject to normal First Amendment analysis, even though a cable system's decision to eject a cable programmer wouldn't be, since the cable system isn't a government actor.

This is pretty basic stuff, and highlights, I think, how weak WASHLITE's lawsuit is. For more, read Fox's motion to dismiss, WASHLITE's response, and Fox's reply, which also discuss various other First Amendment arguments.


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