Cablevisions System Corp. v. FCC: Revisiting the Standard of Review for First Amendment Challenges in the Cable Television ContextNovember 21, 2012
Turner Broadcasting System, Inc. v. FCC (1997) set the standard of review for challenges by cable television operators who claim that federal laws such as the Cable Television Consumer Protection and Competition Act of 1992 violate their First Amendment right to free speech. That standard, intermediate scrutiny, holds that a content-neutral law will be upheld against a First Amendment challenge if the law furthers an important government interest, and if the incidental restriction on First Amendment freedoms is no greater than essential. Nearly thirteen years after being decided, however, the rationale that supported Turner’s conclusion that intermediate scrutiny was appropriate has eroded. Specifically, cable companies no longer exercise the type of control over television broadcasting that concerned lawmakers in the 1990s. Cablevision Systems Corp. v. FCC, a case currently pending a writ of certiorari in the Supreme Court, is the perfect opportunity for the Court to reconsider the Turner decision and establish a new, highly-contextual and fact-specific standard that is more appropriate for First Amendment challenges in the cable television context.