WSJ 01 Jul 96 Cable Ruling May Portend Internet Content Restrictions What looks at first glance like a Supreme Court victory for free expression in cable television could turn out to be a First Amendment quagmire encouraging restrictions on the Internet. That's the view some constitutional experts are taking of a high court ruling Friday that struck down parts of a 1992 law designed to curb "indecent" programming on cable channels leased to local groups or set aside for the public. "It's a sweeping victory for legitimate First Amendment expression," declared Michael Greenberger, one of the attorneys who represented public-access cable producers who challenged the law. Conservative advocates on the other side of the case also claimed victory because one part of the law was preserved. "American families fighting to shelter young children from cable-television pornography won a major battle today as the Supreme Court upheld the right of private cable operators to screen pornographic programs," said Cathy Cleaver, director of legal studies at the Family Research Council. But some liberals were less sanguine. The ruling "tastes sweet at first," said Prof. Laurence Tribe of Harvard Law School, "but it turns out to be a sugar-coated poison pill for the First Amendment." He argued that the reasoning in the court's main opinion, written by Justice Stephen Breyer, was highly cautious and pragmatic rather than sweeping. This approach could be used to permit aggressive regulation of the Internet if the government can show that the global computer network gives children access to indecent material, meaning material that depicts sexual activities or organs in a "patently offensive" way. The Supreme Court produced six opinions but not one that commanded a majority; the vote counts were 6-3 and 5-4 to strike down two of the cable restrictions at issue, and 7-2 to uphold a third. In a separate case last month, a special federal court in Philadelphia invalidated key parts of a 1996 law aimed at curbing indecent material on the Internet. The Clinton administration last week said it would appeal that ruling to the Supreme Court. The Philadelphia court relied on ringing First Amendment rhetoric to decry government interference with the Internet. Justice Breyer's opinion on Friday was strikingly different in tone and method. He took great pains to underscore the seriousness of the government's concern about exposing children to adult programming and explicitly rejected the sort of categorical legal analysis that looks with great skepticism at any restriction on the content of programming. The trio of provisions at issue in the case were pushed by Republican Sen. Jesse Helms of North Carolina as last-minute amendments to a broader 1992 cable-regulation bill. They authorized cable-system operators to prohibit indecent programming on leased channels and public access stations reserved for educational and governmental use. If an operator chose to allow indecent programming on leased channels, the Helms amendments required the operator to "segregate" such programming from other offerings, block it and provide it only to customers who requested it in writing. Supporters of the legislation said they were targeting leased-access programs in New York and elsewhere that feature hard-core pornography. The Supreme Court case arose from lawsuits filed by community-access programmers who argued that the law would ban legitimate shows on sex education, abortion and other topics that could be defined as indecent. (In the legal lexicon, indecent material receives some First Amendment protection, whereas "obscene" material, defined as that which lacks any social or artistic value, doesn't.) In Friday's ruling, the high court by a 7-2 vote upheld a provision that encourages -- but doesn't require -- cable operators to prohibit indecent programming on leased access channels. There is plenty of evidence on those channels of pornographic material that lacks social merit and should be kept away from children, Justice Breyer said. The provision isn't overly broad, he added. Adults seeking racy shows can look to the larger commercial cable channels, where they are plentiful. By a 6-3 vote, however, the court struck down the provision that requires operators who choose to allow indecent programming to block it for all but those viewers who request it in writing. Justice Breyer questioned the need to force customers to disclose their viewing appetites, and he asserted that other, less intrusive means exist to tailor dissemination of adult material if it is to be provided. As examples, he pointed to a recently enacted requirement that commercial cable operators "scramble" or block stations dedicated to sexual material and another that obliges television manufacturers to install "V-chips" in televisions that can automatically identify and block sexual or violent programming. (The high court didn't rule formally on the constitutionality of these devices.) Finally, by a 5-4 margin, the court struck down a measure that encourages cable operators to ban indecent material on public-access stations. There isn't much, if any, indecency on these channels, but the law threatens to cause censorship of controversial shows on health, politics and art, Justice Breyer said. Daniel Brenner, a lawyer with the National Cable Television association, said the group was pleased overall with the ruling because it left operators "with the ability to protect our customers as to leased access. We wish it had done the same for public access." The Federal Communications Commission, which had defended the Helms amendments, managed to find something to celebrate as well. The decision "reaffirms that the Supreme Court believes that caring about what kids see on television is a compelling government interest, and there are constitutionally permissible ways for government to act to protect kids," said FCC Chairman Reed Hundt. He added that the ruling "is also significant because it confirms that the government's definition of "indecency" is not unconstitutionally vague." Only Justices John Paul Stevens and David Souter joined the Breyer opinion in full. Justice Sandra Day O'Connor dissented in part. Justices Anthony Kennedy and Ruth Bader Ginsburg would have struck down all of the challenged law. The court's most conservative wing -- Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas -- would have upheld the entire law. Contractors' Speech In a pair of other First Amendment cases, the high court ruled 7-2 that independent government contractors can't be fired for expressing their views on public issues or for supporting the wrong candidate. In cases from Illinois and Kansas, the court said that contractors have roughly the same free-speech rights as public employees. Justice Scalia, joined by Justice Thomas, dissented from both decisions. "Favoritism," he wrote, "happens all the time in political life, and no one has ever thought that it violated -- of all things -- the First Amendment to the Constitution of the United States." (Wabaunsee County, Kansas vs. Umbehr, O'Hare Truck Service Inc. vs. City of Northlake, Ill.) -- Fuck off, Uncle Sam. Cyberspace is where democracy lives!