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A Digital Divide

Justice Thomas’s opinions in electronic media cases raise doubts abouthis ability to adapt to changing times

Justice Clarence Thomas Since Justice Clarence Thomas joined the Supreme Court, he has taken part in several decisions involving electronic media, including cable, telephone, and internet cases. Regardless of the medium, one theme has remained constant throughout his jurisprudence in this area: he is committed to applying established First Amendment doctrine to electronic and other new and developing media regardless of their technological and economic complications. While this approach has at times led Thomas to provide the critical fifth vote in striking down speech restrictions, at other times it has simply made Thomas appear out of touch with reality.

Additionally, while some members of the Court are sympathetic to the government’s attempts to promote viewpoint diversity and localism in the electronic media through structural regulation, Justice Thomas views such efforts with the same deep suspicion he views content-based restrictions on traditional media. With the expressive rights of electronic media owners as his paramount focus, Thomas tends to discount the other expressive interests of speakers seeking access to electronic media as well as the rights of listeners to receive multiple viewpoints.

In his concurring opinion in Denver Area Educ.Telecommunications Consortium, Inc. v. FCC (1996), Justice Thomas provides a clear window into his thinking on electronic media regulation. There, the Court considered the constitutionality of legislation that permitted cable operators to deny otherwise required carriage to indecent speech on commercial, leased-access channels as well as public, educational, and government- access channels. The legislation also required cable operators who elected to carry indecent programming on leased-access channels to block and segregate such programming unless they received written consent from those wishing to receive access to such channels.

The Court produced six fractured opinions; those opinions revealed a fundamental disagreement among the justices concerning the appropriate framework to govern challenges to cable regulations. In a plurality opinion, Justice Stephen Breyer declared that the traditional categorical approach was inappropriate because it lacked the “flexibility” that would permit the Court to take into
account the “new and changing environment” of cable broadcasting. Any attempt to find an analogy in the existing jurisprudence, Breyer argued, would be “unwise and unnecessary” given “the changes taking place in the law, the technology, and the industrial structure related to telecommunications.” Instead, Breyer suggested that the Court should “balance...competing interests and the special circumdeclarastances of each field of application.”

Justice Thomas, in a separate opinion, bristled at Breyer’s recommendation that the Court abandon its traditional categorical approach and attacked his suggestion that balancing was a more appropriate mode of analysis. The balancing approach, Thomas argued, is “facially subjective and openly invites balancing of asserted speech interests to a degree not ordinarily permitted.”

Moreover, unlike most of the other members of the Court who focused on the free-speech rights of programmers seeking access to leased or public-access channels and to a lesser extent the right of viewers to diverse programming, Justice Thomas focused primarily on the expressive interests of the cable operators. Although the Court had already recognized that cable operators were speakers with First Amendment rights (see Turner Broadcasting System, Inc. v. FCC (1994) (Turner I)), in his Denver Area concurrence Thomas made clear that in his mind those expressive interests were the only ones that truly mattered. Thomas thus criticized the Court for failing to give cable operators the same protections as the print media and instead placing them in a “doctrinal wasteland.”

In Thomas’ view, leased and publicaccess channels are unconstitutional because they force cable operators to carry speech against their will. He views cable operators as analogous to bookstore owners who have a constitutionally protected right to choose which publications they offer on their shelves. Justice Thomas believes that just as a book author has no right to force a bookstore to sell his book, access programmers have no constitutional right to speak through the cable medium. Likewise, although viewers have the right to see what cable operators transmit, they do not have an independent right to force the operator to transmit any particular programming. Accordingly, to Thomas, the challenged indecency provisions must be constitutional because they do not infringe on the access programmers’ rights; instead, “they merely restore part of the editorial discretion an operator would have absent government regulation.”

Justice Thomas also voted to reject a challenge to a provision that required any cable operators who permitted indecent programming to block such programming without written consent. Although he conceded that the provision clearly implicated the petitioners’ free-speech rights and was subject to strict scrutiny, he concluded that it was narrowly tailored to serve the compelling interest of protecting minors. Thomas explained that he believed the provision was narrowly tailored because it was a default position only and would be more effective than the alternatives. He argued that it was irrelevant for First Amendment purposes that the law required written, rather than oral, requests for unblocking because no official list of persons making such requests existed, and even if it did, such information would be knowable under either method.

In United States v. Playboy Entertainment Group, Inc. (2000), Justice Thomas provided the crucial fifth vote to strike down a provision of the Telecommunications Act of 1996 that required cable television operators who provide channels primarily dedicated to sexually oriented programming either to fully scramble or block those channels, or to limit their transmission to hours when children were unlikely to be viewing (10 p.m. to 6 a.m.). Although cable operators already scrambled sexually explicit channels, “signal bleed” often occurred, permitting the program to be seen or heard in an understandable manner from time to time. The record indicated that fully scrambling the channels was not economical, and that as a result most operators had chosen to time-channel any sexually explicit channels.

Justice Kennedy, writing for the Court, applied strict scrutiny, reasoning that the regulation at issue was content-based. Kennedy concluded that the law was not narrowly tailored to protect children because a less-restrictive alternative—permitting parents to request targeted blocking— was available. Justice Thomas joined Kennedy’s opinion, but he also authored a concurrence in which he reiterated that the Court must not sacrifice its stringent First Amendment standards. He noted that the FCC could ban obscenity entirely on cable, but according to the record in the case, only protected indecent speech was at issue. As a result, the traditional strict scrutiny analysis applied. Just as he stated in his Denver Area concurrence, Thomas forcefully declared, “The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the government.”

Thomas’s ultimate conclusion that the Playboy regulation was unconstitutional is in some tension with his analysis of the “block or ban” provision in Denver Area. Although he agreed that strict scrutiny analysis was appropriate in both cases, Kennedy’s analysis of the narrowly tailored prong in Playboy—which Thomas joined— was much more vigorous than Thomas’s analysis of a similar issue in Denver Area.

In Ashcroft v. American Civil Liberties Union (2002), Justice Thomas authored a plurality opinion holding that the Child Online Protection Act’s (COPA) reliance on contemporary community standards to define a work’s appeal to the prurient interest did not alone render the statute unconstitutionally overbroad. The challengers had argued that COPA’s failure to recognize the national variation in community standards would give the most puritanical community in the United States the equivalent of a “heckler’s veto” over online sexual expression.

In rejecting this argument, Thomas relied on Hamling v. United States (1974), in which the Court upheld the application of local community standards to determine whether material distributed through the federal postal system was obscene, and Sable Communications of California, Inc. v. FCC (1989), in which the Court similarly held that local community standards could be used to determine whether “dial-a-porn” was obscene. Several justices attacked Thomas for blindly relying on Hamling and Sable without considering the unique attributes of the internet; specifically, they argued, unlike those who use the mail and telephone, those who post content on the internet can generally not control its dissemination to various geographic communities.

Justice Thomas brushed aside concerns about the technological differences between the internet and the postal and telephone systems. He stood by his declaration in Denver Area that the particular characteristics of the medium of expression did not alter the applicable First Amendment analysis. Indeed, he suggested that those who wish to engage in geographic targeting should simply stop using the internet and instead use an expressive medium that permits such targeting: “If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of material into those communities.” Such a statement profoundly revealed Justice Thomas’s refusal to take the technological and economic realities of electronic media into account in his constitutional analysis.

Given Thomas’s plurality opinion in the first challenge to COPA, some commentators predicted Justice Thomas might reject a constitutional challenge to the statute as a whole when it came to the Court for review. This did not occur. As he had in Playboy, Thomas served as a crucial fifth vote in striking down COPA as unconstitutional (see Ashcroft v. ACLU (2004)). Thomas signed onto Justice Kennedy’s majority opinion that rigorously applied strict scrutiny to COPA and concluded that it was not narrowly tailored to achieve the government’s interest in protecting children because blocking and filtering software was an available alternative that was likely to be an even more effective means of restricting minors’ access to indecent material. Thomas’s vote in this case was consistent with his vote in the dial-a-porn case, where he likewise determined that less restrictive alternatives were available to protect minors.

Thomas is committed to applying traditional First Amendment doctrine to all forms of communication, whether print or electronic, and regardless of their technological or economic differences. He does not believe that the government should be given more leeway to mandate third-party access to electronic media than it has to give such access to print media. Although, at times, this approach leads Justice Thomas to appear to be more speech-protective, the choices he makes in deciding which speech interests to protect could also be seen as subjective as the balancing approach other members of the Court have embraced.

This article was first published as part of the Justice Thomas Symposium by the First Amendment Center. Mary-Rose Papandrea is an assistant professor at Boston College Law School. She served as a law clerk to Judge Douglas H. Ginsburg of the US Court of Appeals for the DC Circuit and thereafter to Justice David H. Souter of the US Supreme Court. Following her clerkships, Papandrea spent several years as a litigator specializing in First Amendment and media defense litigation. One recent article is titled “Citizen Journalism and the Reporter’s Privilege,” 91 Minnesota Law Review 515 (2007).