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Are cable news channels protected by the First Amendment?

Thats the question teed up in a little-noticed lawsuit against Fox News for its COVID-19 coverage, which the plaintiff claims discounted the threat of the pandemic and led viewers to fail to protect themselves. The plaintiff, a small Washington state nonprofit called the Washington League for Increased Transparency and Ethics, or WASHLITE, is suing Fox for what it claims are violations of the states consumer protection laws.

Fox and WASHLITE have already gone back and forth on the consumer protection claim, but the nonprofit filed an extraordinary brief last week in response to Foxs motion to dismiss, arguing that cable news channels, indeed all cable content producers, are wholly unprotected by the First Amendment when that content is distributed over a third-party cable operators system. The plaintiff is misstating the law and doing so in such a way that would impair speech and press protections for everyone.

In fact, the argument if taken to its logical conclusion would strip First Amendment protections from content distributed over the public internet, including this blog post. To understand why, one needs a bit of background.

Cable television in the United States dates back to the late 1940s and early 1950s, but for the first quarter century of its existence was limited to sending terrestrial, over-the-air television broadcasts over coaxial cables to areas that, because of remoteness or mountainous terrain, suffered poor reception. Original cable programming started in the early 1970s with pioneers like Home Box Office, TBS, and the cult Z Channel in Los Angeles.

Starting at about the same time, the Federal Communications Commission began promulgating rules for cable programming, the most relevant here being requirements that cable programmers dedicate certain channels for public, educational, or government (PEG) use, or for commercial lease by unaffiliated programmers. An ongoing debate over the FCCs authority to impose these rules and efforts to both regulate and deregulate the industry led to passage of federal laws in 1984 and 1992 governing cable providers leased access and PEG channel requirements.

Prior to 1992, cable providers were prohibited from exercising any editorial control over leased or PEG channels. In the 1992 law, Congress enacted three provisions empowering cable providers to permit or restrict leased access or PEG programming that depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards (in other words, indecent content).

The first provision permitted, but did not require, cable operators to enforce rules against indecency on PEG or leased access channels. The second was an affirmative command: If an operator decided to permit indecent content over leased access channels, it had to limit it to a single channel and block access unless a cable subscriber requested access (the segregate-and-block requirement). Third, the 1992 law required the FCC to implement regulations that would allow cable operators to prohibit similar content on PEG access channels.

A coalition of cable programmers and viewers challenged parts of the law under the First Amendment. That 1996 Supreme Court case, Denver Area Telecommunications Consortium, Inc. v. FCC, is the main precedent cited by WASHLITE against Fox. The decision itself is a thicket there are six different opinions but the bottom line is that it does not stand for the proposition that cable programmers are unprotected by the First Amendment when their content is distributed by a third-party cable operator, quite the contrary.

Crucially, the majority found that the second provision, the affirmative segregate-and-block requirement for leased access, was a violation of the First Amendment rights of programmers and operators. Six justices agreed (Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day OConnor, David Souter, and John Paul Stevens). Three justices Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas dissented. And WASHLITE relies on this dissent, which, as explained below, also does not hold that cable programmers are unprotected by the First Amendment.

Indeed, the action in the case was around the first and third provisions. Confusingly, two justices Kennedy and Ginsburg would have struck down all three provisions. And, three justices Thomas, Scalia, and Rehnquist would have upheld all three provisions (thus they concurred in upholding the first provision). Justice OConnor would have upheld the first and third provisions.

Accordingly, the Court upheld the first provision, which permitted but did not require cable operators to limit indecent content on leased and PEG channels, by a vote of 7-2. As noted, the second provision was struck down by a vote of 6-3. And the third provision, permitting operators to regulate indecent speech on PEG channels, was held unconstitutional by a vote of 5-4. (Justices found that, unlike leased channels, PEG programming was, one, unlikely to contain indecent content and, two, was provided for in local franchise agreements, meaning that a federally recognized right to limit indecent speech could interfere with those agreements.)

Returning to the dissent relied on by WASHLITE, as noted, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, would have upheld all three provisions. For the first and third provisions, Justice Thomas focused on their permissive nature that is, they did not forbid cable operators from carrying indecent content, and therefore did not burden the First Amendment rights of cable programmers (note that Justice Thomas is acknowledging that such rights exist).

Rather, the first and third provisions restored editorial discretion to the cable operator. As Justice Thomas reasoned, the cable operators were the ones harmed by the PEG and leased access requirements, like a bookstore forced to sell books published on the subject of congressional politics. This is what WASHLITE cites in their brief they note that Justice Thomas held that cable programmers do not have an affirmative right to force a private cable operator to carry content, but Justice Thomas did not say that content providers lack First Amendment rights.

Further, with respect to the second provision, the segregate-and-block requirement for cable operators who decide to carry indecent programming, far from eschewing First Amendment rights for the cable programmers, Justice Thomas expressly recognizes them. Unlike the first and third provisions, the segregate-and-block requirement clearly implicates [the cable programmers and viewers] rights, Justice Thomas wrote.

But, Justice Thomas applied strict scrutiny the highest level of constitutional scrutiny, which courts must apply to government restrictions on speech based on its content and found that the government had met its burden to show the second provision was narrowly tailored to satisfy a compelling government interest. In other words, the dissenting justices would have found that, while cable programmers have First Amendment rights, the government had a really good reason to require operators to segregate and block indecent content (to protect children) and that other means to do so, like the V-chip, were not up to the task.

At base, WASHLITE makes two legal errors. One, it relies on a dissent in a case where the majority expressly found First Amendment protections for cable programmers on a third-party cable system. Two, it misconstrues that dissent. Rather than holding that cable programmers have no First Amendment rights, the dissent would have found that in the context of indecent programming the segregate-and-block requirement satisfied the strict in theory, fatal in fact high bar of strict scrutiny analysis. WASHLITE has failed to even advance an argument as to why the same analysis should apply in the context of a state consumer protection lawsuit seeking to penalize the exercise of editorial discretion on a news channel.

Two final points are in order.

First, not only does WASHLITE misstate the law with respect to cable, it does so with respect to print and over-the-air broadcast media as well. The only medium of communication subject to slightly less First Amendment protection under current law is bunny ears broadcasting that is the use of the electromagnetic spectrum to broadcast audio and visual information over the air. This is because, one, spectrum is scarce, meaning government intervention is theoretically justified to preserve viewpoint diversity, and, two, its pervasive, meaning that, in essence, children could be inadvertently exposed to indecent speech absent government regulation.

Further, that limited exception for over-the-air broadcast is itself now controversial, as the advent of the internet, the conversion of analog signals to digital, and other technological advancements that have mitigated scarcity and allowed for greater consumer control, have undercut the legal justifications for the Red Lion and Pacifica decisions allowing government regulation of over-the-air content.

Second, and as noted, WASHLITEs argument is not limited to cable. It is effectively saying that when a news organization uses a third party to get its news to the public, the content of that news receives no First Amendment protection.

Among other things, that logic would extend to newspapers who use third-party contractors to deliver the physical paper or rely on internet service providers to distribute digital content. It would extend to syndicated radio programs who sell content to third-party broadcasters. And it would apply to the broadcast networks. ABC, CBS, the CW, FOX, and NBC would only be protected when their programming is broadcast by owned-and-operated stations. PBS wouldnt be protected at all because it doesnt own its member stations.

In fact, that logic would strip First Amendment protections from this blog post because the Reporters Committee relies on a third party to host our website and third-party internet and technology providers to transmit our speech to the public.

The COVID-19 pandemic is both a public health crisis and a profound challenge to civil liberties here and around the world. And it is a political crisis that is provoking intense and acrimonious policy debates at all points on the ideological spectrum. But that debate means that the First Amendment matters more now, not less, and regardless of who is doing the speaking or debating, it should be vigilantly protected. WASHLITEs legal theory would limit the ability of all Americans to report the news or, more broadly, speak freely on one of the most important public policy debates in generations.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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Fox News lawsuit would strip First Amendment protection from cable news, internet - Reporters Committee for Freedom of the Press

Jack Greiner Published 2:24 p.m. ET May 20, 2020

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The First Amendment is pretty ubiquitous. It seems to pop up in lots of situations. But I rarely see domestic relations courts grapple with it. Married couples ending their relationship generally have other things to worry about than the Constitution. But a Massachusetts family court waded into the issue recently, which led to a decision from the Massachusetts Supreme Judicial Court upholding a First Amendment challenge.

Ronnie Shak and Masha M. Shak were married for approximately 15 months and had one child together. Ms. Shak filed for divorce Feb. 5, 2018, when the child was 1 year old. Prior to a custody hearing, Ms. Shak filed a motion asking the court to prohibit Mr. Shak from posting disparaging remarks about her and the ongoing litigation on social media. After a hearing, and some procedural wrangling, the court issued orders that included provisions against both parties as follows:

Recognizing that the orders may have constitutional implications, the court issued an order staying the effective date of the orders until an appellate court could review them. The case ultimately made its way to the Supreme Judicial Court.

The Supreme Judicial Court considered the family court orders a case of prior restraint. Prior restraint describes administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." As the court noted, [b]ecause the prior restraint of speech or publication carries with it an immediate and irreversible sanction without the benefit of the protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted, it is the most serious and the least tolerable infringement on First Amendment rights.

In other words, a court may punish speech after someone utters it, but it can almost never prohibit a speaker from speaking in advance. In the former case, the speakers have the ability to present evidence and defend their speech. In the latter, theres no ability to do sothe order exists and effectively, the decision is made before the speaker has an opportunity to challenge the prohibition.

To justify imposing a prior restraint, a court must conclude the case presents a compelling state interest to protect against a serious threat of harm. And, even in that case, "[a]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint."

This case simply didnt rise to the high legal standard. In the courts view (Ms. Shak)presented no evidence that the child has been exposed to, or would even understand, the speech that gave rise to the underlying motion for contempt. As a toddler, the child is too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

The Supreme Judicial Court also felt that there were less restrictive means of addressing the issue than a prior restraint. As it noted, parents who are the target of disparaging speech may have the option of seeking a harassment prevention order ... or filing an action seeking damages for intentional infliction of emotional distress or defamation. ...And certainly judges, who are guided by determining the best interests of the child, can make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations.

Lets hope Mr. and Ms. Shak put aside the vitriol and focus on the best interests of their child. But the Supreme Judicial Court was right to protect the best interests of the First Amendment.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

Read or Share this story: https://www.cincinnati.com/story/money/2020/05/20/strictly-legal-first-amendment-and-domestic-relations/5211164002/

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Strictly Legal: The First Amendment and domestic relations - The Cincinnati Enquirer

Around the nation, state lockdown orders during the coronavirus pandemic have led to sharp debates over the trade-offs inherent in such orders. We have no doubt that states have and should have extremely broad authority to take steps to protect public health during an outbreak that has sickened so many Americans.

But we also have no doubt that some of the restrictions imposed by states are utterly inconsistent with the First Amendment.

Consider California. Three weeks ago, hundreds gathered at the Capitol to protest the state's stay-at-home order. In response, the California Highway Patrol indefinitely banned all in-person protests at state facilities.

Such a ban on protests is at odds with the way California treats other activities. Gov. Gavin Newsoms initial stay-at-home order carved out exceptions for socially distant exercise and visits to gas stations, pharmacies, grocery stores and other essential businesses. On May 8, Governor Newsom permitted bookstores, toy stores, clothing stores and florists to reopen for curbside delivery, yet the blanket ban on protests remains.

California is not alone in ignoring the constitutionally protected status of public protests. In New York City, protesters who were wearing masks and abiding by social distancing requirements were arrested or issued summonses. While we greatly, greatly respect the right of people to protest, there should not be protests taking place in the middle of a pandemic, New Yorks police commissioner, Dermot Shea, has said. Mayor Bill de Blasio has asserted that people who want to make their voices heard there are plenty of ways to do it without gathering in person.

The power of the states to restrict protests at parks and state capitols is very limited. States can surely prohibit violent protests, as the First Amendment protects the right of the people peaceably to assemble. But other restrictions must be narrowly tailored to serve a significant government interest, which is precisely what Californias ban is not.

California could permit protests on the condition that individuals abide by social distancing guidelines and mask rules. It could reasonably limit the number of protesters so that social distancing is feasible. To protect the health of state employees, it could impose buffer zones around entrances and exits at state buildings.

But that is not what California did. Instead, it chose to indefinitely strip Californians of their fundamental right to protest.

In one of the first rulings on the subject in the new Covid-19 world, a federal judge on May 8 upheld Californias ban on in-person protests. The court reasonably concluded that California has a legitimate interest in limiting person-to-person interactions and that permitting 500- or 1,000-person protests would undermine that interest.

But in the absence of any narrower alternative having been provided by the litigants, he upheld the ban. The courts decision was at a preliminary stage of the case and is subject to later change.

The courts ruling, which afforded the California order substantial deference, remains troubling. Applying the emergency measures test, the court held that it could strike down Californias ban only if it bore no real or substantial relation to public health, or if the measure was beyond all question a plain, palpable invasion of rights secured by fundamental law. The Supreme Court developed that test to ensure that states have the authority they need to protect public health; it is not a license for suspending constitutional rights.

Protecting public health while preserving the freedoms of speech and assembly is no easy task amid a pandemic. But the Supreme Court has declared that the First Amendment reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.

Our commitment to public debate on public issues has been a lodestar through good times and bad. As our political leaders navigate our collective response to the worst public health crisis in a century, it is critical that we preserve, to the maximum extent possible, opportunities for political dissent. The First Amendment sometimes requires discomforting results to protect the liberties of our people.

Floyd Abrams, a constitutional lawyer who is a visiting lecturer at Yale Law School, is the author of The Soul of the First Amendment. John Langford is counsel at Protect Democracy.

The Times is committed to publishing a diversity of letters to the editor. Wed like to hear what you think about this or any of our articles. Here are some tips. And heres our email: letters@nytimes.com.

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The Coronavirus Protests Are Protected by the Constitution - The New York Times

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If you somehow zapped fourth president of the United States James Madison through a wormhole and, the moment he appeared in 2020, asked him, Does the First Amendment protect putting a tracking device on beloved fitness guru Richard Simmonss car?, he would probably be too busy screaming to answer. But Californias 2nd District Court of Appeals wasnt on Thursday, when it upheld a judges ruling that the First Amendment does not protect Bauer Media, former owners of In Touch Weekly, from being sued after a tracking device was found on Simmonss drivers car.

According to Variety, a three-judge panel determined Simmons can move forward with a lawsuit accusing In Touch Weekly of invasion of privacy after Scott Brian Mathews, a private investigator hired by the magazine, placed a tacking device on the vehicle in 2017. Bauer Media filed a motion to dismiss the suit under Californias anti-SLAPP laws, created to subvert frivolous lawsuits designed to intimidate outlets from publishing news, alleging they only hired Mathews to take photos of Simmons during a hospital visit. Mathews pleaded no contest to placing the device, and received probation.

If youll recall, 2017 was the year the Missing Richard Simmons podcast was busy speculating about the unexplained retreat of Simmons from his once very public life. Among the podcasts many suggested reasons for the fitness moguls social disappearance include allegations of manipulation on the part of a long-time employee, elder abuse, or Simmonss alleged decision to transition. Simmons himself denied any abuse after the LAPD performed a wellness check on his home.

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The First Amendment Does Not Protect Putting a Tracking Device on Richard Simmonss Car - Vulture

On March 19, the Ohio Department of Health ordered the closure of "hair salons, nail salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations" as part of the state's efforts to combat the spread of COVID-19. Nearly two months later, Gov. Mike DeWine announced that hair salons and barber shops would be allowed to reopen shortly, so long as they followed various social distancing and public health requirements.

There was no mention of letting tattoo artists get back to work. "We were closed with salons, barbers, tanning salons and the like," the Oxford, Ohio, tattooist Steve Cupp told WLWT5. "And we assumed once they opened, considering the proximity they have to their clients and the proximity that we have to ours, that we would be reopened with them. But we were excluded." The state eventually announced that tattoo shops would finally be allowed to reopen on May 15.

This sort of government action raises some interesting legal questions, especially for the numerous tattoo parlors that remain shuttered in other states. Do tattoo artists have a case to make against coronavirus closure orders? Does the Constitution protect a tattoo shop's right to remain openat least in some limited fashionduring the pandemic?

The idea is not so far-fetched. Both state and federal courts have recognized tattooing as a constitutionally protected form of free expression. Up until the year 2000, for example, it was a crime in Massachusetts, punishable by up to one year in prison, for any person except a doctor to mark "the body of any person by means of tattooing." But in Lanphear v. Commonwealth of Massachusetts, the Massachusetts Superior Court struck down that statewide ban on the grounds that "the act of tattooing is inseparable from the display of the tattoo itself and is expression protected by the First Amendment."

The U.S. Court of Appeals for the 9th Circuit reached the same conclusion in Anderson v. City of Hermosa Beach (2010). At issue was that city's ban on tattoo shops within city limits. "The tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment," declared a unanimous 9th Circuit panel.

Which brings us back to the idea of a tattoo artist mounting a legal challenge to a coronavirus closure order. In United States v. Carolene Products Co. (1938), the U.S. Supreme Court said that when the courts review a regulation "affecting ordinary commercial transactionsthe existence of facts supporting the legislative judgment is to be presumed." In other words, judges were told to be extremely deferential towards the government when it is regulating economic activity.

But Carolene Products did not endorse judicial passivity on all fronts. "More exacting judicial scrutiny," the Court said, would still be appropriate in some cases. For example, judges should not defer to the government by rote in matters involving "a specific prohibition of the Constitution, such as those of the first ten amendments." Lawyers now call this exacting approach "strict scrutiny." In the words of Black's Law Dictionary, for a law or regulation to survive strict scrutiny review, it "should only be as restrictive as is necessary to accomplish a legitimate governmental purpose."

"The business of tattooing," as the 9th Circuit put it, is "fully protected by the First Amendment." Which means that any regulation of a tattoo shop should trigger strict scrutiny review when that regulation lands in court.

A public health order designed to curb the spread of an infectious disease like COVID-19 would seem to pass the "legitimate governmental purpose" prong of the strict scrutiny test. But what about the second prong, which requires the regulation to be the least restrictive means of pursuing that legitimate state end?

Here is where the tattoo shops may have a case. So long as they can operate safely during the coronavirus outbreakby requiring artists and clients to wear masks and gloves at all times, by routinely cleaning equipment and surfaces, by carefully practicing social distancing, by limiting the number of people allowed inside the shop, etc.a total shutdown of the business would not seem to qualify as the least restrictive means available for achieving a legitimate government purpose, even amid a pandemic.

Related: "Tattoos vs. the State: Free speech in skin and ink"

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Do Tattoo Shops Have a First Amendment Right To Remain Open During a Pandemic? - Reason