COMMENT TECHNOLOGICAL CONVERGENCE— “A MULTIPLICITY OF SOURCES” Table of Contents I. INTRODUCTION ........................................................................322 II. H ISTORY OF THE M EDIA ..........................................................323 A. Traditional Print Media ................................................324 1. Tornillo....................................................................325 2. Obscenity and the Road to Reno ............................326 B. The Internet.....................................................................328 1. Reno .........................................................................330 2. Analysis of Reno......................................................333 C. Cable Television..............................................................334 1. Past Interpretation of the Must-Carry Rules ........336 2. The Suit...................................................................338 3. Analysis of Turner ..................................................341 III. ANALYSIS OF RENO WITH TURNER .........................................343 A. Convergence . . . Now . . . Future...................................343 B. The Act and its Impact...................................................344 C. Reno and Turner Together.............................................345 IV. CONCLUSION ...........................................................................349 321 322 HOUSTON LAW REVIEW [36:321 The distinction between communications networks will go away. A single wire coming into your home or office will deliver phone, videophone, Internet and television service. The connections will be offered by telephone, cable television and possibly even utility companies. Bill Gates1 I. INTRODUCTION Bill Gates’s remarks regarding the convergence of communications offer a glimpse into the future. Mr. Gates’s remarks also illustrate the complexities of such an endeavor,2 not only from the standpoint of creating an infrastructure,3 but also in creating a body of law that meets the demands of such a dynamic industry.4 When dealing with media issues, the Supreme Court has traditionally focused on First Amendment concerns.5 Over the past fifty years, the courts have segregated the different areas of communication and media, reasoning that each is different in its “nature and effect.”6 The Court has therefore practiced under an assumption that different forms of media diverge, while these forms are actually converging.7 Thus, the Supreme Court’s 1. Bill Gates, Ask Bill: Will TVs and PCs Merge in the Age of the Internet? (Apr. 10, 1996) <http://www.microsoft.com/billgates/columns/1996q&a/qa960410.htm>. 2. In a letter to his shareholders, Mr. Gates, among other things, discussed Microsoft’s plans to create the “Connected PC and the Connected TV,” which will integrate “the intelligence and interactivity of PCs with the video and sound of TV.” Bill Gates 1997 Annual Report, Letter to Shareholders (visited Dec. 23, 1998) <http://www.microsoft.com/ msft/ar97/bill_letter/bill_letter.htm>. 3. See id. (acknowledging the need for a “physical infrastructure” before making the vision a reality). 4. Cf. Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1447-54 (D.C. Cir. 1985) (discussing the appropriate standard of review for the emerging technology of cable television); see also FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (recognizing that each medium of expression presents special First Amendment problems); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969) (stating that “differences in the characteristics of new media justify differences in the First Amendment standards applied to them”). 5. See ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 2 (1983) (explaining that “the first principle of communications law in the United States is the guarantee of freedom in the First Amendment . . .”); see also id. at 5 (claiming that the “First Amendment came out of a pluralistic world of small communicators, but it shaped the present treatment of great national networks”). 6. See Donald E. Lively, The Information Superhighway: A First Amendment Roadmap, 35 B.C. L. REV . 1067, 1067 (1994) (noting that press freedom has traditionally reflected a sense that media are “distinguishable in their nature and effect”). 7. See id. 1999] CONVERGENCE 323 treatment of media, particularly in two recent cases, warrants reexamination with an eye toward convergence. This Comment explores the diverging doctrines on media law and the future struggles that lie ahead as the forms of media continue to converge. In Part II, this Comment analyzes the history of print, Internet, and cable media and their current trend towards convergence. Part III compares the Court’s inconsistencies in its treatment of the Internet in Reno v. ACLU,8 and its treatment of cable television in Turner Broadcasting System, Inc. v. FCC,9 in light of the Telecommunications Act of 1996 and the convergence of the two medias. Lastly, Part IV discusses the appropriateness of putting both cable TV and the Internet on the same scrutiny plane considering their imminent convergence. II. H ISTORY OF THE MEDIA Over 900 years ago, a Chinese inventor developed moveable type, and hence, the printed text was born.10 However, printed materials were not born with any attachments of freedom.11 In fact, with the advent of printing came censorship.12 Before the printed word, there was no centralized press control because none was necessary.13 Germany introduced the concept of censorship in 1529, and the British government followed suit by limiting printing rights in 1557 to curb the advent of “seditious and heretical books.”14 Over the next couple of centuries, the battle between publishers and censors grew.15 However, as the power of the press grew, so did the movement calling for the deconstruction of censorship laws.16 8. 117 S. Ct. 2329 (1997). 9. 117 S. Ct. 1174 (1997). 10. See POOL, supra note 5, at 12. 11. See id. (claiming that p rinting was first used as directed by the Chinese and Korean monarchs’ mandarins). 12. See id. at 14 (“Before printing, there had been no elaborate system of censorship and control over scribes.”). 13. See id. (noting that censorship was unnecessary because scribes were scattered and worked on single manuscripts that rarely caused significant scandal or controversy). 14. See id. at 15. 15. See id. For example, until 1693, the principle form of press restriction in England was licensing. See id. Then in 1712, and for another century and a half, the British government used taxation as its principle weapon. See id. Criminal libel suits brought by the state were also used to control the British press. See id. at 16. 16. See, e.g., id. at 15 (discussing the American colonial protest of the 1765 Stamp Act that required the placement of revenue stamps on all printed documents). 324 HOUSTON LAW REVIEW [36:321 American courts and legislators rejected the British forms of press control and instead the First Amendment was created as the nation’s constitutional foundation.17 The First Amendment treated communications as an activity that should go unregulated by government.18 It is the scope of the First Amendment with which courts have struggled when dealing with two types of communications: print and cable media. A. Traditional Print Media Justice Story once said that the First Amendment guarantees only that “every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”19 Justice Story’s opinion shaped the view of the Supreme Court up to the 1930s.20 In 1931, Chief Justice Hughes wrote in Near v. Minnesota 21 that, under the law invalidated in that case, “unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed. . . . This is of the essence of censorship.”22 Chief Justice Hughes brought to the forefront 17. See id. at 16. One of the earliest American cases describing licensing as unconstitutional was Massachusetts v. Blanding, 20 Mass. (3 Pick.) 304 (1825). 18. U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech or of the press . . . .”); see also POOL, supra note 5, at 55. With the adoption of the Fourteenth Amendment, the First Amendment restrictions apply to the states as well. See Gitlow v. New York, 268 U.S. 652 (1925). 19. Near v. Minnesota, 283 U.S. 697, 732-33 (1931) (Butler, J., dissenting) (emphasis omitted) (quoting Justice Story from his work on the Constitution). 20. See, e.g., Gitlow, 268 U.S. at 654-55, 672 (upholding the conviction of a member of the socialist party for issuing a radical publication in violation of New York’s criminal anarchy statute); Schaefer v. United States, 251 U.S. 466, 467-68, 474-82 (1920) (finding articles in a German language newspaper that gave false accounts of the war unprotected speech); Abrams v. United States, 250 U.S. 616, 617, 623-24 (1919) (ruling that leaflets sent to Russia encouraging resistance to the United States war effort and attacking American forces were unprotected speech); Debs v. United States, 249 U.S. 211, 216 (1919) (holding speech that obstructed and attempted to obstruct the recruiting service of the United States was unprotected); Frohwerk v. United States, 249 U.S. 204, 206 (1919) (“[T]he First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language.”); Schenck v. United States, 249 U.S. 47, 47, 51 (1919) (upholding the conviction of a leader of the Socialist Party who sent out leaflets urging draftees to “assert their rights” in opposition to the draft); Fox v. Washington, 236 U.S. 273 (1915) (upholding the constitutionality of a state law prohibiting speech that tends to lead to crime). 21. 283 U.S. 697 (1931). 22. Id. at 713. In striking down a Minnesota statute allowing censorship of a “‘malicious, scandalous and defamatory newspaper, magazine, or other periodical,’” the Chief Justice stated “that even a more serious public evil would be caused by authority to prevent publication.” Id. at 701-02, 722. 1999] CONVERGENCE 325 the print media’s immunity from censorship. The Near Court, analyzing a Minnesota censorship statute, realized the effect of the statute’s design was not to repair the wrongs to accused individuals but rather to suppress the publication of the newspaper.23 The Near Court began to recognize the freedom o f the press and set in motion the First Amendment’s role as protector of the print media. The freedom of the print media culminated in the 1974 decision of Miami Herald Publishing Co. v. Tornillo,24 in which the Court acknowledged its trend toward “sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print.”25 1. Tornillo. The Supreme Court established the First Amendment standard for newspaper type publications in Tornillo. In Tornillo, Pat Tornillo, an Executive Director of the Classroom Teacher’s Association, was a candidate for the Florida House of Representatives.26 After reading an article criticizing his record and candidacy, Mr. Tornillo demanded the right to a printed response in accordance with a Florida Statute.27 The Dade Country Circuit Court held the statute unconstitutional, but the Florida Supreme Court reversed.28 The U.S. Supreme Court reversed the Florida Supreme Court and held that the statute did violate the First Amendment.29 The newspaper argued that under the First Amendment, the State could not create statutes regulating the “content of a 23. See id. at 709. 24. 418 U.S. 241 (1974). 25. Id. at 256. The following line of cases were decided after Near but before Tornillo: Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973) (expounding “[t]he power of a privately owned newspaper to advance its own political, social, and economic views”); Mills v. Alabama, 384 U.S. 214, 215, 220 (1966) (holding that a ban on election day editorials to be a violation of the First Amendment); New York Times Co. v. Sullivan , 376 U.S. 254, 270 (1964) (noting the “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”); Associated Press v. United States, 326 U.S. 1, 20 (1945) (pronouncing that the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public”). 26. See Tornillo, 418 U.S. at 243 & n.1. 27. See id. at 243-44 (explaining that F . STAT. ANN. § 104.38 (West 1973), LA gave candidates a “right of reply” to personal character or official record attacks by any newspaper free of cost in that newspaper). 28. See id. at 244-45. 29. See id. at 258. 326 HOUSTON LAW REVIEW [36:321 newspaper.”30 Mr. Tornillo argued that because the modern trend in the newspaper industry was consolidation, the factors existing at the creation of the First Amendment had changed.31 The modern day newspaper industry, according to Mr. Tornillo, is filled with “[c]hains of newspapers, national newspapers, national wire and news services, and one-newspaper towns.”32 Mr. Tornillo concluded that such organizations are “noncompetitive and enormously powerful and influential in [their] capacity to manipulate popular opinion and change the course of events.”33 Chief Justice Burger, who delivered the opinion of t he unanimous Court, opined that the Florida statute “exacts a penalty on the basis of the content of a newspaper.”34 Chief Justice Burger added that a “[g]overnment-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.’”35 The Court concluded that even though, theoretically, there is infinite space in a newspaper, economics dictate limitations on the size and content.36 Thus, the Florida statute failed to clear the First Amendment hurdle because of its interference with editorial decisions.37 2. Obscenity and the Road to Reno. “[T]he first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions . . . . In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized . . . .”38 30. See id. at 247. 31. See id. at 247-51 (declaring that eighteenth century America was a “true market place of ideas . . . in which there was relatively easy access to the channels of communication”). 32. Id. at 249. 33. Id. 34. Id. at 256. 35. Id. at 257 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)). 36. See id. at 256-58. 37. See id. at 258 (stating that the “choice of material to go into a newspaper . . . constitute[s] exercise of editorial control and judgment”). 38. Dennis v. United States, 341 U.S. 494, 524 (1951) (Frankfurter, J., concurring) (quoting Robertson v. Baldwin, 165 U.S. 275, 281 (1897)). 1999] CONVERGENCE 327 Justice Frankfurter used the exceptions mentioned above in his concurrence to uphold the convictions of twelve leading communists who advocated a violent overthrow of the government.39 While Tornillo promulgated the scrutiny level needed to protect newspaper editors, there were still questions as to how to deal with the “exceptions” (i.e., libel, profanity and obscenity).40 Obscenity, as defined by Justice Brennan, is material that is “utterly without redeeming social importance.”41 In the seminal case of Roth v. United States,42 Justice Brennan defined obscenity to be outside the realm of First Amendment protection.43 Obscene material, according to Justice Brennan, dealt with “sex in a manner appealing to prurient interest.”44 Justice Warren, although concurring in the result, was wary of such sweeping language used by the majority.45 Justice Douglas wrote the dissenting opinion, which was joined by Justice Black.46 The dissent contended that the government’s concerns should lie more with “antisocial conduct, not with utterances.”47 The dissent concluded that the people, not the government, have the ability to reject “noxious” material.48 Roth and its progeny established a definition of obscenity49 and, through subsequent cases,50 the Court took on a battle that shifted its focus from the printed word to the electronic one. 39. See id. at 497, 544 (Frankfurter, J., concurring) (declaring that “[n]ot every type of speech occupies the same position on the scale of values”). 40. See POOL, supra note 5, at 57 (stating that “[l]ibel, profanity, obscenity, and sedition were among the ‘exceptions’ Frankfurter had in mind” when deciding Dennis). 41. Roth v. United States, 354 U.S. 476, 484 (1957). 42. 354 U.S. 476 (1957). 43. See id. at 481 (indicating the Court had always assumed that obscenity is not protected by the First Amendment). Mr. Roth was a New York publisher who sent out obscene material through the mail. See id. at 480. 44. Id. at 487. 45. See id. at 494 (Warren, J., concurring) (explaining that, because the broad language could eventually be applied to the arts and science, the Court’s decision should be limited to its facts). 46. See id. at 508-14 (Douglas, J., dissenting). 47. Id. at 512-13 (Douglas, J., dissenting). 48. See id. at 512-14 (Douglas, J., dissenting) (rejecting the suppression of literature simply “because it offends the moral code of the censor”). 49. See id. at 489 (adopting the following test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest”); see also A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 418 (1966) (suggesting the Court’s definition of obscenity involves a three part test: “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; 328 HOUSTON LAW REVIEW [36:321 B. The Internet “The competition and convergence of electrical media with print began with telegraphy, continued with broadcasting, and today is most striking with data or computer networks.”51 This observance by Ithiel de Sola Pool in his influential book, Technologies of Freedom, introduces us to the latest area of technology law, the Internet.52 The Internet was originally a military project in the late 1960’s that enabled computers to communicate with one another on a network.53 This early system laid the groundwork for what is now called the Internet, a system linking millions of people and allowing them to communicate and “access vast amounts of information from around the world.”54 This new medium of words and pictures has introduced several constitutional concerns, including the availability of pornography on the Internet.55 Before 1996, organizations self- regulated pornography on the Internet through private agreements.56 However, after growing concerns over the ability of a minor to access pornography over the Internet and a controversial study of the issue,57 Congress hurriedly introduced and (c) the material is utterly without redeeming social value”). 50. See generally City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 43, 47- 48 (1986) (taking into account a secondary effects analysis to uphold an ordinance restricting sexual plays, films, and published material to certain zones within the city); Hamling v. United States, 418 U.S. 87, 100 (1974) (allowing jurors instead of experts to determine a “common standard” for obscenity); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (prohibiting the criminilization of private possession of obscene material); Redrup v. New York, 386 U.S. 767, 768-69, 771 (1967) (reversing a conviction for selling obscene books to willing adults); Smith v. California, 361 U.S. 147, 153 (1959) (holding that knowledge of the contents is needed before the state can convict a person of selling obscene books). 51. POOL, supra note 5, at 39. 52. See Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) (defining the Internet as “an international network of interconnected computers”). 53. See id. (noting that this early network was designed to enable computers operated by the military, defense contractors, and defense-related research universities to communicate even if part of the network was damaged in a war). 54. Id. 55. See Vikas Arora, Note, The Communications Decency Act: Congressional Repudiation of the “Right Stuff,” 34 HARV . J. ON LEGIS. 473, 474 (1997) (stating that “citizens and government officials alike have sought to ‘purify’ the Internet by prohibiting the transmission and/or display of ‘obscene’ . . . content” (footnote omitted)). 56. See id. 57. See id. at 474 & n.10 (citing Marty Rimm, Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times By Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories, 83 G EO. L.J. 1849, 1914 (1995) (discussing a 1995 survey that showed 83.5% of electronic images on the Internet 1999] CONVERGENCE 329 the Communications Decency Act of 1996 (“CDA”).58 On February 8, 1996, President Clinton signed the Telecommunications Act of 1996 into law.59 Section 502 of Title V of the Act prohibits the distribution of “indecent” and “patently offensive” communications over the Internet.60 It was the enactment of this statute that caused the American Civil Liberties Union were po rnographic). 58. See id. at 474 (revealing that after the Internet study was published, “one Senator made it his personal cause to cleanse the Internet” and introduced legislation). 59. Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified in scattered sections of 47 U.S.C. (Supp. II 1997)). This Act contained, as Title V, the CDA. See Pub. L. No. 104- 104 §§ 501-561, 110 Stat. 133, 133-45 (codified in scattered sections of 47 U.S.C. (Supp II 1997)). 60. Pub. L. No. 104-104 § 502, 110 Stat. 133, 133-36 (to be codified at 47 U.S.C. § 223(a)–(h)). The sections promulgating rules against indecent and patently offensive Internet communications are as follows: (a) Whoever— (1) in interstate or foreign communications— (A) by means of a telecommunications device knowingly— (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; (B) by means of a telecommunications device knowingly— (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated communication; .... (d) Whoever— (1) in interstate or foreign communications knowingly— (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits a telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. 47 U.S.C. § 223 (a), (d) (1996). 330 HOUSTON LAW REVIEW [36:321 (“ACLU”), joined by several Internet providers, to bring suit for a preliminary injunction against enforcement of the CDA.61 1. Reno. In Reno, the ACLU claimed that the CDA provisions concerning the Internet infringed upon protected First and Fifth Amendment rights.62 The U.S. District Court for the Eastern District of Pennsylvania conducted an extensive fact finding including everything from the history of the Internet to the specific issue of sexually explicit material.63 In a unanimous decision, the three-judge panel granted the injunction and found the CDA unconstitutional.64 The case was then directly appealed to the Supreme Court, where the Court affirmed the decision.65 a. Majority Opinion. Justice Stevens, joined by Justices Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, delivered the opinion of the Court.66 Justice Stevens discussed the findings of fact, the statute, the district court opinion, and the arguments presented by the Government.67 The Government cited three prior cases to support the constitutionality of the CDA.68 The majority distinguished the first case, Ginsberg v. New York,69 which addressed the constitutionality of a New York statute prohibiting the sale of obscene material to minors,70 in four ways. First, the majority noted that the New York statute sustained in Ginsberg did not prevent parents from buying the materials for their minor children, unlike the CDA, which superceded the parents’ 61. See ACLU v. Reno, 929 F. Supp. 824, 826-27 (E.D. Pa. 1996), aff’d, 117 S. Ct. 2329 (1997) (noting that the plaintiffs raising the constitutional challenge to the CDA included various individuals and organizations that were associated with the computer or communications industry, posted materials on the Internet, or belonged to certain citizen groups). 62. See id. at 827. 63. See id. at 830-49. 64. See id. at 849. The Court determined that the CDA was “content-based” restriction and the speech is entitled to constitutional protection. See id. at 851. The government, therefore, had to prove the law was “justified by a compelling government interest and . . . is narrowly tailored to effectuate that interest.” Id.; see also Sable Comm. of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (confirming that § 223(b) of the 1988 amendments to the Communications Act was not narrowly tailored enough to s erve the governmental purpose of protecting children from exposure to indecent “dial–a–porn” messages). 65. See Reno v. ACLU, 117 S. Ct. 2329, 2351 (1997). 66. See id. at 2333. 67. See id. at 2334-51. 68. See id. at 2341-43 (citing Ginsberg v. New York, 390 U.S. 629 (1968), FCC v. Pacifica Found., 438 U.S. 726 (1978), and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)). 69. 390 U.S. 629 (1968). 70. See id. at 631. 1999] CONVERGENCE 331 discretion and consent in providing the patently offensive materials to their children.71 Second, the New York statute applied only to commercial transactions, whereas the CDA covers all transactions.72 Third, the New York statute gave a concrete definition for obscenity, whereas the CDA fails to provide a definition of “indecent” and omits limitations on what may be considered “patently offensive.”73 Fourth, the New York statute’s designation of a minor as being a person under the age of seventeen is one year younger than the CDA requirement.74 Thus, the Court asserted that the statute upheld in Ginsberg was narrower than the CDA.75 The second case advanced by the government was FCC v. Pacifica Foundation,76 which upheld an FCC action against a radio station for broadcasting a George Carlin monologue entitled “Filthy Words.”77 The Court distinguished this case in three ways. First, the majority noted that Pacifica dealt with what time of day to broadcast obscene material, and not a total prohibition of the broadcast of obscene material.78 The CDA, conversely, broadly prohibited obscene Internet “broadcasts,” not limiting the time of day when the ban would take effect.79 Second, unlike radio, which has a history of the “‘most limited First Amendment protection,’” the Internet has no such history.80 Finally, the Internet differs from radio in that in radio the risk of accidentally encountering obscene material is high, whereas in order to witness indecent material via the Internet, a user must take affirmative steps, and it is unlikely that such user would reach any “obscene” Web site by accident.81 The third case cited by the government was Renton v. Playtime Theaters, Inc.82 In Renton, the Court upheld zoning 71. See Reno, 117 S. Ct. at 2341. 72. See id. 73. See id. (noting a lack of exceptions for work with “serious literary, artistic, political, or scientific value”). The New York statute defines harm as “utterly without redeeming social importance for minors.” Ginsberg, 390 U.S. at 646. 74. See Reno, 117 S. Ct. at 2341. 75. See id. 76. 438 U.S. 726 (1978). 77. See id. at 729-30, 751. 78. See Reno, 117 S. Ct. at 2342. 79. See id. (noting also that the CDA did not set up any agency to evaluate material). 80. See id. (noting that radio’s traditional limited protection results mainly from the fact that warnings can not adequately protect listeners from unexpected program content). 81. See id. 82. 475 U.S. 41 (1986). 332 HOUSTON LAW REVIEW [36:321 ordinances designed to keep adult movie theatres out of certain neighborhoods.83 Building on this precedent, the government claimed that the CDA operated as a type of zoning on the Internet.84 But these “cyberzones,” according to the majority, were much broader than the city zones in Renton and apply to the “entire universe of cyberspace.”85 Moreover, these cyberzones are used to curb the “primary effects” of indecent and patently offensive speech, not the “secondary” effects involved in Renton.86 After dismissing the cases the government offered as precedent, the Court further analyzed the statute, but under a strict level of scrutiny.87 The Court first attacked the statute as being overly broad,88 and then noted that alternatives less restrictive of First Amendment rights were available for achieving the same purpose.89 Therefore, the majority concluded that the CDA was not narrowly tailored to meet its objective of protecting minors because less restrictive means existed to achieve the stated purpose.90 b. Concurring and Dissenting Opinion. Justice O’Connor, joined by the Chief Justice, concurred in part and dissented in part and based her opinion upon the zoning aspect of the government’s argument.91 Justice O’Connor stated that she would have upheld the law if it did not operate to keep adults from speech they have a right to view or purchase.92 Justice O’Connor 83. See id. at 43. 84. See Reno, 117 S. Ct. at 2342 (describing the activity as “cyberzoning”). 85. See id. 86. See id. The secondary effects that Renton discussed included the “crime and deteriorating property values—that these theaters fostered.” Id. (citing to Renton, 475 U.S. at 49, to bolster this distinction). 87. See id. at 2344 (asserting that the cases “provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium”); see also id. at 2348 (setting forth that “[t]he breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA”). 88. See id. at 2347 (stating that the “breadth of the CDA’s coverage is wholly unprecedented”). 89. See id. at 2336, 2347 (noting the existence of software that can effectively “tag” indecent material, thus leaving the control to the parents and not the government). 90. See id. at 2350 (agreeing with the district court’s conclusion and suggesting that the CDA would effectively kill a substantial portion of the beneficial Internet community). 91. See id. at 2351 (O’Connor, J., concurring in part and dissenting in part) (stating that “portions of the CDA are unconstitutional because they stray from the blueprint . . . for constructing a ‘zoning law’ that passes constitutional muster”). 92. See id. at 2353 (O’Connor, J., concurring in part and dissenting in part) (recognizing that the CDA interferes with the rights of adults and “effectively ‘reduces the adult population . . . to reading only what is fit for children’” (alteration 1999] CONVERGENCE 333 discussed two provisions of the CDA, the “indecency transmission” and “specific person” provisions.93 Justice O’Connor expressed her belief that when an adult is communicating indecently or in a patently offensive manner with an adult, the CDA as applied is overly broad.94 However, if an adult is communicating in such a manner with a minor and no other adult is involved, then the CDA should be enforced against the offending adult.95 2. Analysis of Reno. After the Court’s decisions in two previous cases, Turner Broadcasting System, Inc. v. FCC,96 and Denver Area Educational Telecommunications Consortium, Inc. v. FCC,97 the Court finally delivered a “crisp” opinion in Reno.98 in original) (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)). 93. See id. at 2354-55 (O’Connor, J., concurring in part and dissenting in part). 94. See id. at 2355 (O’Connor, J., concurring in part and dissenting in part) (attempting to explain and clarify when the CDA should and should not apply). 95. See id. (O’Connor, J., concurring in part and dissenting in part). 96. 117 S. Ct. 1174 (1997). The Turner Court determined that “must-carry” laws, requiring cable companies to carry local television broadcasts, are constitutional. See id. at 1203. Refer to Part II.B.3 infra (discussing Turner in detail). 97. 518 U.S. 727 (1996). In Denver Area, a group of cable television “access” programmers and organizations of cable television watchers petitioned for judicial review of FCC orders implementing Section 10 of the Cable Act. See id. at 732-33. The petitioners claimed that the three provisions of Section 10, and the FCC regulations implementing them, violated the First Amendment because the provisions restricted the content of leased access channels by permitting cable operators to prohibit programming that they considered indecent. See id. at 738-39. Writing for the plurality, Justice Breyer refused to apply an all-encompassing standard, such as those developed in other cases, namely cases involving broadcasting and common carriers, to the area of cable television. See id. at 739-40. The plurality applied a “close scrutiny” test to one part of Section 10, but the full Court did not apply the same level of scrutiny to the other two sections. See id. at 741, 743, 755 (explaining that it was not necessary to determine the proper level of scrutiny because the provisions failed under any First Amendment test). The plurality’s failure to enunciate a concrete standard of scrutiny for all three parts has led to criticism from both the telecommunications and legal communities. See, e.g., Diana Israelashvili, Comment, A Fear of Commitment: The Supreme Court’s Refusal to Pronounce a First Amendment Standard for Cable Television in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 71 ST. JOHN’S L. REV . 173, 194-95 (1997) (arguing that because cable television’s pervasiveness and accessibility to children imparts a substantial government interest, the Supreme Court should direct the lower courts to apply “laws and doctrines developed in the print medium context to cable television . . . to protect First Amendment principles”); see also James L. Simmons, Note, The Continuing Struggle to Find a Place for Cable Television in the Pantheon of First Amendment Precedent: Denver Area Educational Telecommunications Consortium v. FCC, 34 HOUS . L. REV . 1607, 1635 (1998) (criticizing the plurality’s approach as leading to an “ad hoc balancing test” subject nd to the whims of the Court, a arguing for a more “principled” First Amendment standard of analysis). 98. See Clifford M. Sloan, Decisions Reflect Nature of Media, NAT’L L.J., August 11, 1997, at B8 (defining a “crisp” opinion as one in which the Supreme Court, as in 334 HOUSTON LAW REVIEW [36:321 The Internet is a new area of media technology that the Court could have stifled by allowing the passage of a statute that was overly broad in scope. The Internet, which is predicted to have over 200 million users by 1999,99 is now closer, in terms of First Amendment protection, to print media than it is to broadcast media or common carriers.100 The reasoning of the Court in Reno places the Internet in the realm of protection offered by Tornillo.101 Arguably, the Florida statute at issue in Tornillo was rejected primarily due to its vagueness.102 A vague statute implicating First Amendment freedoms will not pass the strict scrutiny standard used by the Court.103 The Supreme Court’s nearly unanimous opinion in Reno forms the foundation for First Amendment protection of the Internet.104 However, the level-of-protection question still remains with r espect to the convergence of the Internet with the First Amendment’s stepchild, cable television.105 C. Cable Television Cable television began in the late 1940’s as a new medium providing television signals to rural communities where normal television reception was “poor or nonexistent.”106 In the early days of cable, antennas were often mounted on towers or hills to transmit and receive signals.107 Today, cable systems are intricate Reno, delivered an almost united standard of review concerning the Internet, as opposed to the vague and disjointed opinion proffered by the Justices in the Denver Area decision). 99. See Reno, 117 S. Ct. at 2334. 100. Refer to notes 82-90 supra and accompanying text (describing a case of First Amendment strict-scrutiny analysis of a statute). See also Sloan, supra note 98, at B8 (commenting that Internet legislation will now be stringently reviewed). 101. Refer to Part II.A.1 supra and accompanying text. 102. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247, 258 (1974) (acknowledging the claim that statutory vagueness limits the editorial functions of the paper and finding that an intrusion into this function violates the First Amendment). 103. See ACLU v. Reno, 929 F. Supp. 824, 851 (E.D. Pa. 1996), aff’d, 117 S. Ct. 2329 (1997) (stating that under a strict standard, a statute passes constitutional muster if it utilizes “narrowly tailored” means to serve a “compelling government interest”). 104. See, e.g., Sloan, supra note 98, at B8 (emphasizing the impact of Reno by referring to the decision as a “landmark” and as enormously important for the future of cyberlaw). 105. See Lively, supra note 6, at 1068 (claiming that as a differentiated medium, “broadcasting has historically received the most limited First Amendment protection”). 106. See G EORGE H. SHAPIRO ET AL., ‘CABLE SPEECH’ 1 (1983). 107. See id. 1999] CONVERGENCE 335 structures powered by “complex electronic distribution systems with multichannel capacity.”108 With the new cable system technology came new forms of regulation.109 As cable television grew more sophisticated, so did the government’s regulation of it, especially on the federal level.110 Some of the most controversial regulations are called the “must-carry” rules. Must-carry rules require cable companies to broadcast the signals of local and significantly viewed television stations.111 These rules, adopted early in cable television’s regulatory history, were enacted before the government fully understood their First Amendment implication.112 It is this First Amendment implication that is the focus of this section. When reading the history and reasoning of the Turner decision, one must keep in mind the differences between the Supreme Court’s treatment of print and Internet media, and its treatment of cable television. It is the standard of scrutiny and the rationale used by the Court in Turner that forces the debate of what level of scrutiny is appropriate for a new technology that is a combination of both the Internet and cable television. In 1965, the Federal Communications Commission (“FCC”) issued its First Report and Order adopting general rules affecting the authorization of microwave-fed cable systems.113 These rules required that such systems carry all signals of local broadcast television stations (the must-carry rule) “without material degradation” and prohibited cable systems from carrying distant station programs that duplicated local programming “either simultaneously or within a reasonable time.”114 The FCC rules 108. Id. The capacity has increased from three channels to over one hundred channels. See id. 109. See id. at 13-14 (stating that early cable television regulations dealt with issues such as where to install wires, public rights of way, and safety considerations concerning the placement of those wires); see also S. REP. NO. 98-67, at 6 (1983) (claiming that “[t]he premise for the exercise of this expanded local jurisdiction over cable systems continues to be [their] use of local streets and rights of way”). 110. See SHAPIRO, supra note 106, at 15 (discussing how the FCC gained jurisdiction over cable television due to the notion that cable systems operate in interstate commerce). 111. See Elizabeth A. Cowles, Federal Communications Commission: Must- Carry and the Continuing Search for a First Amendment Standard of Review for Cable Regulation, 57 G EO. WASH. L. REV . 1248, 1251 (1989) (describing must-carry rules and noting that the rules were based upon furthering the public interest of “localism”). 112. See id. at 1251-52 (observing how must-carry rules were left “untouched” for 20 years). 113. See Rules re Microwave-Served CATV, 38 F.C.C. 683 (1965). 114. Id. at 684. A reasonable time was defined as 15 days before or after the local broadcast. See id. at 722. 336 HOUSTON LAW REVIEW [36:321 were enacted to prevent unfair or unequal competition between cable companies and local broadcast stations.115 1. Past Interpretation of the Must-Carry Rules. Under the rules promulgated by the FCC, “cable operators [were required] to carry all local or significantly viewed broadcast signals regardless of program duplication or the capacity of the cable system.”116 Challenged on First Amendment grounds by cable operators, these rules were first struck down in Quincy Cable TV, Inc. v. FCC,117 after which the FCC responded by scaling down the original version of the must-carry provisions.118 Even though the subsequent rules were more limited in scope, they were also struck down as unconstitutional without any difficulty.119 The court in Quincy, by a unanimous decision, voided the FCC rules as “fundamentally at odds with the First Amendment.”120 The court used a constitutionality test developed in United States v. O’Brien.121 In O’Brien, which dealt with the burning of a draft card,122 the Supreme Court used an intermediate scrutiny test.123 This standard means that when a law affects an “incidental” burden on speech, the courts will sustain the legislation only if the government meets its burden of showing that its law furthers “an important or substantial governmental interest . . . unrelated to the suppression of free 115. See id. at 713 (emphasizing the ameliorative effect of implementing the rules). 116. Laurence H. Winer, The Red Lion of Cable, and Beyond?—Turner Broadcasting v. FCC, 15 CARDOZO ARTS & ENT. L.J. 1, 9 (1997). 117. 768 F.2d 1434 (D.C. Cir. 1985). The rules affected the operators’ right to choose what to broadcast and were, thus, in violation of the First Amendment. See id. at 1437-38. 118. See Amendment of Part 76 of the Commission’s Rules Concerning Carriage of Television Broadcast Signals by Cable Television Systems, 1 F.C.C.R. 864 (1986) (explaining that the amendment was drafted in response to Quincy with the belief that the “new rules” were constitutionally sound). 119. See Century Communications Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987). The court noted that although the new rules were scaled down, they still did not serve “to advance any substantial government interest, so as to justify an incidental infringement of speech.” Id. at 293; see also id. at 304 (concluding that regulation of the cable industry is permitted upon showing of an advancement of a substantial government interest). 120. Quincy, 768 F.2d at 1438. The court took issue with the broadness of the rules. See id. at 1463 (calling the rules an “insufficiently tailored” means to an end). 121. 391 U.S. 367 (1968). See Quincy, 768 F.2d at 1448 (opining that the must- carry rules fail so clearly under the O’Brien standard that higher scrutiny, though probably warranted, was unnecessary). 122. See O’Brien, 391 U.S. at 369. 123. See id. at 376-77 (developing the test which requires that not all “speech,” i.e., the expression of an idea, can be protected by the First Amendment when an important or substantial government interest is implicated). 1999] CONVERGENCE 337 expression . . . [and] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”124 Because the FCC failed in Quincy to meet the intermediate scrutiny of the O’Brien test, the rules were invalidated.125 Similarly, the court again struck down the narrower versions of the rules in Century Communications Corp. v. FCC.126 In doing so, the Century court noted that the findings by the government would not be given substantial deference because First Amendment freedoms were at stake.127 After the rejection of the must-carry provisions in Quincy and Century, the FCC was reluctant to implement the provisions again.128 Relying heavily on the results of a comprehensive survey and facing increased pressures from both broadcasters and consumer groups, Congress, prompted by the FCC, promulgated the Cable Television Consumer Protection and Competition Act of 1992 (“Cable Act”).129 The survey relied upon showed that a large 124. Id. at 377. 125. See Quincy, 768 F.2d at 1448, 1454-59, 1463 (identifying the O’Brien standard, applying it, and finding that the governmental interest in promulgating the must-carry rules was nearly non-existent in the face of the intrusiveness upon the cable operators’ First Amendment rights). 126. See 835 F.2d 292, 297-300 (D.C. Cir. 1987) (applying again the O’Brien test seeking a substantial government interest and remarking that the FCC had predicated its rules on little more than a “speculative fear” that cable would harm local broadcasting). 127. See id. at 299 (noting that deference is improper when such freedoms are even “incidentally” endangered). 128. See Brief for Appellants at 5-9, 12, Turner Broad. Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994) (No. 93-44) (explaining the gap in must-carry regulation between the Century decision in 1988 and Congress’s ultimate action in 1992 as due to the FCC’s unwillingness to act in the face of the invalidation in both Quincy and Century). 129. See Brief for Appellee at 10-12, Turner Broad. Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994) (No. 93-44) (citing widespread non-carriage of local broadcasts by cable operators, and other actions taken to “stifle” competition). The Cable Act is located at Pub. L. No. 102-385, 106 Stat. 1460 (1992) (codified in scattered sections of 47 U.S.C.). Sections 4 and 5 of the Cable Act contain the must-carry requirement. See 47 U.S.C. §§ 534-535 (1994). These statutes require cable companies to carry signals of certain local broadcasters. See Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32, 36 (D.D.C. 1993), vacated, 512 U.S. 622 (1994). Section 4 of the Act requires a cable operator with fewer than 12 “usable activated channels” to carry at least three local commercial television stations. See 47 U.S.C. § 534(b)(1)(A) (waiving the requirement for cable operators with fewer than 300 subscribers); see also id. § 534(h)(1)(A) (defining local commercial television stations as “any full power television broadcast station, other than a qualified noncommercial educational television station”). Those cable operations with 12 or more channels must carry the signals of local stations up to one-third of the active and usable channels. See id. § 534(b)(1)(B). If there are not enough “full power local commercial television stations” to fulfill the requirement set out in subsection (b), then one or two low powered broadcast stations must be carried instead. See id. § 534(c)(1)(A) (requiring one channel when the cable operator has a capacity of less than 35 channels); id. § 534(c)(1)(B) (requiring two channels when the cable operator has a capacity greater 338 HOUSTON LAW REVIEW [36:321 number of cable operators had refused to carry the programming of local broadcast stations.130 Based on these findings, Congress concluded that cable operators had the ability and incentive to threaten the economic viability of broadcast television.131 In addition to the threat of economic harm, Congress recognized an equally important government interest of ensuring that Americans receive diverse viewpoints.132 As a result, on October 5, 1992, Congress passed the Cable Act, overriding a presidential veto.133 2. The Suit. Once the law was enacted, Turner Broadcasting, Inc. brought suit in the U.S. District Court for the District of Columbia against the FCC and the United States, challenging the constitutionality of Sections 4 and 5 of the Cable Act.134 Turner claimed Sections 4 and 5 violated the First Amendment for three reasons.135 The first claim dealt with the “primary evil” of forcing cable operators to devote a portion of their “finite” space to local broadcasters, which in turn reduced the number of channels remaining for other programs the than 35 channels). The cable operator must carry the whole program schedule of the commercial broadcaster without compensation. See id. § 534(b)(3)(B) (promulgating that the “cable operator shall carry the entirety of the program schedule of any television station carried on the cable system”); id. § 534(b)(10) (declaring that a cable operator “shall not accept or request monetary payment” for carrying local commercial station). Section 5 of the Cable Act tackles the issue of carrying “noncommercial educational television” (“NET”). See id. § 535. Unless it has less than 300 subscribers, a cable system with 12 or fewer channels must carry at least one NET channel. See id. § 535(b)(2)(A). Systems with 13 to 36 channels are required to carry at least one qualified NET, but no more than three. See id. § 535(b)(3)(A)(i). Lastly, cable systems with more than 36 channels are required to carry at least 3 NETs. See id. § 535(e). As in Section 4 of the Cable Act, these cable operators must carry the whole programming schedule and are prohibited from receiving any consideration from the NET for the carriage. See id. § 535(g)(1) (requiring the cable operator to “retransmit in its entirety the . . . transmission of each qualified local noncommercial educational television station”); id. § 535(i)(1) (stating that a “cable operator shall not accept monetary payment or other valuable consideration in exchange for carriage . . . ”). 130. See Brief for Appellees, supra note 129, at 11 (showing that in more than 1800 instances, 869 cable operators admitted refusing carriage of 704 local broadcast stations). 131. See id. at 12. 132. See Pub. L. No. 102-385 § 2, 106 Stat. 1460, 1460 (stating that there is a “substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media”). 133. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 630 (1994); see also Pub. L. No. 102-385 § 2, 106 Stat. 1460, 1503-04 (1992) (chronicling the two-thirds majority vote in favor of the action in both the Senate and House). 134. See Turner, 819 F. Supp. at 37. 135. See id. at 38. 1999] CONVERGENCE 339 operators would prefer to carry.136 Second, the plaintiffs claimed that must-carry laws violated their First Amendment rights of “editorial discretion” in determining what programs the cable operators chose to transmit to their subscribers.137 Finally, Turner argued, the must-carry provisions promoted broadcasters as “speakers” by giving broadcasters preferred channel space that the cable operators would otherwise desire.138 The District Court granted summary judgment in favor of the FCC, ruling that the must-carry provisions challenged by the plaintiffs survived under the intermediate standard of scrutiny.139 The Supreme Court, on direct appeal, vacated the district court’s judgment and remanded the case back to that court for further development of the factual record.140 On remand, the district court denied Turner’s motion for summary judgment on the grounds that the Cable Act furthers the important and substantial governmental interest in protecting the existence of the broadcast industry, without greatly burdening the cable industry’s First Amendment freedoms.141 The Supreme Court, again on direct appeal, affirmed the district court’s decision.142 a. Majority Opinion. Justice Kennedy wrote for the five member majority and began by re-emphasizing the three important governmental interests at issue: “‘(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming.’”143 136. See id. 137. See id. (claiming that must-carry would unlawfully force the cable operators to “deliver some programming they might otherwise choose not to carry”). 138. See id. 139. See id. at 36, 39 (pinpointing the O’Brien test as applicable and stating that under such test the petitioners’ arguments against the Cable Act must fail); id. at 54 (Sporkin, J., concurring). Refer to notes 121-24 supra and accompanying text (explaining the intermediate scrutiny test of O’Brien). 140. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 626-27, 668 (1994). A plurality stressed that it was necessary to the review of the challenged provisions that: (1) the government proffer more evidence of actual financial or other threat to broadcasters as the impetus for the enactment; (2) evidence of the extent that must- carry laws would contrive the speech of all operators, among other harms, be set forth; and (3) the district court speak to the possibility of tailoring the regulation more tightly while protecting local broadcasting. See id. at 667-68 (plurality opinion). 141. See Turner Broad. v. FCC, 910 F. Supp. 734, 751 (D.D.C. 1995), aff’d, 117 S. Ct. 1174 (1997) (noting additionally the nonexistence of viable alternatives to the as-written Cable Act provisions). 142. See Turner Broad. Sys., Inc. v. FCC, 117 S. Ct. 1174, 1184 (1997). 143. Id. at 1186. 340 HOUSTON LAW REVIEW [36:321 In its argument, the FCC claimed that the must-carry laws, which “protect” non-cable households from loss of regular broadcasting service due to competition from cable systems, were important because forty percent of American households still rely on over-the-air signals for television programming.144 In addition, the FCC pleaded an important governmental interest in ensuring public access to a vast number of information sources.145 To support this claim, the government presented factual evidence “yielding a record of tens of thousands of pages.”146 The evidence demonstrated that the “‘economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry.’”147 In analyzing the evidence, the majority afforded substantial deference to the congressional findings concerning the harm to be avoided and to the remedial measures adopted for that end.148 The Court’s sole obligation, according to Justice Kennedy, was to assure that in formulating its conclusion, Congress had “‘drawn reasonable inferences based on substantial evidence.’”149 In reaching its conclusion, the Court determined that the 1992 Cable Act was “content-neutral.”150 Applying O’Brien,151 the Court again held that a “content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests u nrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.”152 Thus, using intermediate scrutiny, the Court upheld the must-carry provision.153 144. See id. (arguing that such protection is an important federal interest). 145. See id. (adding that this objective is aided by a fostering of fair competition). 146. Turner, 910 F. Supp. at 755 (Williams, J., dissenting) (commenting upon the volume of discovery produced in response to the remand order for the resolution of the factual issues in the case). 147. Turner, 117 S. Ct. at 1189 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664-65 (1994)). This element is what the government needed to prove, and the Court found that the evidence relied on by Congress and presented on remand did so. See id. at 1191. 148. See id. at 1189 (reasoning that it is not the function of the Court to “infringe” upon Congress’s legislative authority “[e]ven in the realm of First Amendment questions). 149. Id. (quoting Turner, 512 U.S. at 666). 150. See id. at 1198, 1203 (distinguishing content-neutral laws as being substantially less threatening to free expression than those laws based upon the content of the expression, and affirming the Court’s previous holding that the Cable Act is a content-neutral regulation requiring only that Congress’s policy for the law be based on reasonable fact finding). 151. Refer to notes 121-24 supra and accompanying text (discussing O’Brien). 152. Turner, 117 S. Ct. at 1186 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968)). 153. See id. at 1203 (deferring to congressional judgment as “grounded on 1999] CONVERGENCE 341 b. Concurring Opinion. Justice Breyer concurred in part, but disagreed with the majority’s analysis regarding the statute’s goal to “promote fair competition.”154 He focused instead o n: “‘(1) preserving the benefits of free, over-the-air local broadcast television,’ and ‘(2) promoting the widespread dissemination of information from a multiplicity of sources.’”155 Justice Breyer agreed that the First Amendment “price” of such a law is “suppression of speech.”156 However, he believed that “the burden [this] statute imposes upon the cable system . . . is limited and will diminish as typical cable system capacity grows over time.”157 c. Dissenting Opinion. Justice O’Connor, joined by Justices Scalia, Thomas and Ginsburg, dissented, expressing disagreement with the level of scrutiny the majority employed,158 and with its assessment of the actual financial harm that would be imposed upon the local broadcast stations if the must-carry provision were not r equired.159 The dissenters mainly viewed the must-carry provisions not as content-neutral, but content-based, and, thus, subject to strict scrutiny.160 Finally, the dissenters disagreed with the amount of deference the majority gave to the congressional findings.161 3. Analysis of Turner. The majority concluded that the government’s interests in preserving the benefits of free, over- reasonable factual findings supported by [substantial] evidence . . . ”). 154. See id. at 1203-04 (Breyer, J., concurring) (agreeing generally with the majority’s O’Brien analysis of the statute but choosing to focus on the other goals besides the anticompetitive rationale). 155. Id. (Breyer, J., concurring) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994)). 156. See id. at 1204 (Breyer, J., concurring) (identifying cable operators, cable program providers, and even cable viewers as the “payors” of the price). 157. Id. at 1205 (Breyer, J., concurring). 158. See id. (O’Connor, J., dissenting) (stressing the Court’s duty to more actively scrutinize the following: government interests, congressional findings, and the means-ends tightness of any statute which implicates First Amendment freedoms). 159. See id. at 1206-07 (O’Connor, J., dissenting) (framing “financial harm” within the concept of “anticompetition”; i.e., that broadcast television could not compete and, thus, would die for lack of revenue and profit without must-carry protection). 160. See id. at 1207-08 (O’Connor, J., dissenting) (setting forth the argument that forcibly preserving the existing broadcast programming on a cable channel defines the “content” of that channel). 161. See id. at 1208-10 (O’Connor, J., dissenting) (calling into serious question the links among the factual evidence and testimony presented to Congress, and Congress’s conclusions regarding the purported harms to broadcasting that cable can and would affect without must-carry provisions). 342 HOUSTON LAW REVIEW [36:321 the-air local broadcast television, promoting the widespread dissemination of information from a multiplicity of sources, and promoting fair competition in the market for television programming were important governmental interests for First Amendment purposes.162 After assuming that the must-carry provisions were content-neutral, the Court reasoned that the regulation passed the intermediate scrutiny test set forth in O’Brien.163 The majority should, however, have determined that this legislation was not content-neutral. The Court erred by using economic regulations and economic goals to demonstrate the statute’s content-neutrality.164 The basis of the Court’s economic concerns came from its assumption that cable programmers have immense economic power as “gatekeepers of all television programming”; however, this assumption is based on a fourteen- year old book.165 With the Telecommunications Act of 1996, the market penetration and, therefore, economic power of cable companies is not as deep.166 In addition, the majority should have refrained from giving such great deference to congressional evidence. As Justice O’Connor noted, “[i]t is appropriate to regard the testimony of interested persons with a degree of skepticism when our task is to engage in ‘independent judgment of the facts bearing on an issue of constitutional law.’”167 In conclusion, this law is content-based, not content-neutral. As Justice O’Connor stated, “the only justification advanced by the parties for furthering this interest is heavily content based.”168 With the threat of cable monopolies diminishing, the only rationale for this law is to ensure a multiplicity of sources, one that is based upon broadcaster-tainted congressional 162. See id. at 1186. 163. See id. 164. See Winer, supra note 116, at 5 (advocating that the Court cannot hide behind the wall of economic regulation in order to justify the enforcement of content- based legislation). 165. See Ronald W. Adelman, Turner Broadcasting and the Bottleneck Analogy: Are Cable Television Operators Gatekeepers of Speech?, 49 SMU L. REV . 1549, 1554- 55 (1996) (criticizing the Court’s reliance on Ithiel de Sola Pool’s 1983 book, Technologies of Freedom). 166. See id. at 1550 (claiming that with the repealing of bans that before 1996 disallowed telephone companies from entering the cable television market and the growth of satellite services, the monopoly concerns expressed by the majority in Turner no longer exist). 167. Turner, 117 S. Ct. at 1210 (O’Connor, J., dissenting) (quoting Sable Comm. v. FCC, 492 U.S. 115, 129 (1989)). 168. Id. at 1207 (O’Connor, J., dissenting). 1999] CONVERGENCE 343 testimony.169 Thus, government regulation to ensure a multiplicity of sources is content-based, because the “multiplicity” is chosen by the government and not via the editorial decisions of the cable operators. III. ANALYSIS OF RENO WITH TURNER A. Convergence . . . Now . . . Future Convergence is not a new idea.170 Convergence refers to the “ability of a single communication service provider, such as a c able television company, to provide voice telephony, video, and data (e.g., facsimile) services simultaneously over a single wire.”171 The idea of single wire is a technology that is available now.172 Convergence is also driven by economic forces of “cross ownership.”173 Due to the economic efficiency of cross ownership, all types of industries are investing in convergence, especially those with built-in infrastructures.174 Some of these industries include the cable and telephone industries.175 Another industry investing both time and money in the idea of convergence is the computer industry. 169. See id. (O’Connor J. dissenting) (explaining that the evidence reveals that must-carry laws actually protect only the “marginal” stations within a particular market and that any threat to the entire broadcast system is purely mythical). 170. See POOL, supra note 5, at 23-24 (noting in 1983 the convergence of modes, such as “the post, telephone, and telegraph, and mass communications, such as the press, radio, and television” by a single wire). 171. Andrew C. Barrett, Multiple Broadband Wires to the Home: Future or Folly?, 4 COMM LAW CONSPECTUS 163, 164 (1996). 172. See Don West, The Once and Future Cable, BROADCASTING & CABLE , May 8, 1995, at 32, 34 (interview with Amos Hostetter, Chairman/CEO of Continental Cablevision) (discussing the ability of a coaxial cable’s capability to carry vast amounts of data); see also Harry A. Jessell, High Speed Modems a Top Priority, BROADCASTING & CABLE , Dec. 4, 1995, at 82 (observing that cable operators offer Internet access using their cable networks due to the bandwidth advantages of cable systems). 173. See POOL, supra note 5, at 23-24 (noting the growth of conglomerates that participate in many businesses at once and observing that companies publishing in print increasingly own or are owned by companies that operate in different fields). 174. See Thomas G. Krattenmaker, The Telecommunication Act of 1996, 29 CONN. L. R . 123, 125-27 (1996) (revealing that today most people receive cable EV television over a coaxial wire, while telephone service comes from a copper and fiber optic wire, when either wire can send both video and telephone signals). 175. See Monroe E. Price & John F. Duffy, Technological Change and Doctrinal Persistence: Telecommunications Reform in Congress and the Court, 97 COLUM . L. REV . 976, 982 & n.19 (1997) (explaining how “telephone companies now enter into competition for multichannel video broadband service . . .”); see also Micheal Krantz, Trial by Wire, MEDIAWEEK, Mar. 20, 1995, at 25, 28 (discussing the prospects of a technology called “asynchronous digital subscriber line,” which is able to transmit compressed video over twisted copper wire). 344 HOUSTON LAW REVIEW [36:321 On June 9, 1997, Microsoft Corp. invested $1 billion in the fourth largest cable company in the world, Comcast.176 Comcast and Microsoft plan to create a modem that will connect a customer’s computer to the Internet via a cable system.177 Currently, Microsoft is marketing a product called Web TV, in which it has invested $425 million.178 However, while this product was very limited, with the advent of competition, the “world’s wealthiest man”179 and his company have decided to invest the company’s future in the convergence of the PC/Internet with television.180 The idea of the convergence of cable television with the Internet became a reality with the passage of the Telecommunications Act of 1996 (the “Act”). B. The Act and its Impact The Act has been described as “‘truly revolutionary legislation that will bring the future to our doorstep.’”181 The Act was created for one main reason—“technological convergence.”182 According to Thomas G. Krattenmaker, Dean and Professor of Law at William and Mary School of Law, one of the Act’s goals is that “[e]ntry barriers will be torn down so that legal balkanization no longer stands in the path of technological convergence.”183 When looking at this goal, questions arise as to which technologies will converge, and how the Supreme Court will interpret these new technologies (i.e., how should these new technologies be classified) and what level of scrutiny should be used. 176. See Microsoft Invests in Cable Firm, HOUS . CHRON., June 10, 1997, at 4C (noting that “Microsoft’s biggest-ever outside investment” is intended to boost sales of Microsoft’s online and interactive software and other services to Comcast’s 4.3 million customers). 177. See id. 178. See id. (noting that Microsoft acquired Web TV in order to bring the Internet to the masses). 179. See Chris Bury, Microsoft is Everywhere (visited Nov. 9, 1997) <http://www.abcnews.com/sections/scitech/rev_ms1/index.html> (commenting on the financial status of Mr. Gates and Microsoft). 180. See Steve Hamm, Microsoft’s Future, BUS . WK., Jan. 19, 1998, at 58, 63 (discussing how Microsoft has invested in improvements of Web TV, increasing its subscribers from 50,000 to 250,000 in just one year). 181. Krattenmaker, supra note 174, at 123 (quoting President Clinton’s remarks at the signing ceremony of the Act). 182. See id. at 125. 183. Id. at 130. See, e.g., Pub. L. No. 104-104 § 302, 110 Stat. 56, 118-24 (1996) (to be codified at 47 U.S.C. § 571) (repealing the bans preventing the telephone companies from entering the cable industry). 1999] CONVERGENCE 345 C. Reno and Turner Together As we have seen, the Internet has been classified as print media when Congress attempts to censor it.184 However, the Court left several questions open in Turner as to how to treat cable television when it merges with new technologies, a trend it has continued since the advent of cable.185 In order to determine how to classify Turner, we must look at the history of scrutiny levels as applied to the cable industry and see if a trend pushes it toward print media or toward common carriers. Broadcasting has historically been the “least protected” media category.186 This status has been attributed to several factors: the deference to congressional findings; the scarcity of channels; the intrusive nature of broadcasting; the protection of the local broadcaster; the centralized nature of cable broadcasting; the apparent content-neutral nature of must-carry laws; the growing market penetrations of cable through both vertical and horizontal integration; and the preservation of a multiplicity of sources.187 The best way to classify cable companies in a converging environment is to take each category above and examine the differences in the Court’s treatment of that category in Reno and Turner. In Reno, the Court rejected Congress’s flawed judgment regarding the enactment of the CDA.188 The Court noted that Congress adopted the CDA with little debate and without 184. Refer to Part II.B.2 supra and accompanying text. 185. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386-87 (1969) (holding that “differences in the characteristics of new media justify differences in the First Amendment standards applied to them”). 186. See FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (claiming that “it is broadcasting that has received the most limited First Amendment protection”). 187. The following cases are examples in which the Court has discussed the issues mentioned in the text above: Reno v. ACLU, 117 S. Ct. 2329, 2332 (1997) (recognizing a “history of extensive government regulation of broadcasting”), Turner Broadcasting System, Inc. v. FCC, 117 S. Ct. 1174, 1186 (1997) (determining the 1992 Cable Act to be content-neutral, owing great deference to congressional findings and discussing the dangers of monopolization through vertical and horizontal integration), Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 577-78 (1995) (discussing the effects of monopolies on the First Amendment), and CBS v. Democratic National Committee, 412 U.S. 94, 101 (1973) (stating that broadcast frequency scarcity leads to an “unusual order” of First Amendment interests). In Hurley, the Court upheld the rights of private organizers of the annual St. Patrick’s Day parade to exclude a gay and lesbian group because the private organizers did not have a monopoly on providing gays and lesbians access to spectators. See Hurley, 515 U.S. at 559, 561 (holding that a state cannot require private organizers of a parade to “include among the marchers a group imparting a message the organizers do not wish to convey”). 188. See Reno, 117 S. Ct. at 2345. 346 HOUSTON LAW REVIEW [36:321 hearings.189 Unlike Reno, the Turner Court relied heavily on congressional findings.190 The Court’s reliance on these findings, as pointed out by Justice O’Connor, was flawed because the testimony and data came from local broadcasters, a biased source.191 In Reno, the Court treated the Internet like print media because the Internet allows for limitless amounts of communication.192 The Court used the same analysis in Tornillo in determining that a newspaper theoretically has a limitless amount of column space and, because of this infinite space, any content-based statutes must be analyzed under strict scrutiny.193 Unlike print media, broadcast media has not always had limitless amounts of space. The problems of scarcity have allowed the Court to use an intermediate scrutiny level.194 However, in Turner, the Court claimed that scarcity was no longer an issue, so to infringe upon the editorial rights of broadcasters was not a major invasion of their First Amendment rights.195 Thus, in the context of Tornillo, the Court should have used a strict level of scrutiny. In addition, even with no scarcity concerns, economics may still dictate the “size and content” of the cable operator’s ability to carry a certain broadcast station.196 In fact, the cable operator’s economic freedom is what dictates its decision to carry 189. See id. at 2338 & n.24 (quoting Sen. Patrick Leahy’s comment at a one-day hearing of “Cyberporn and Children” that “[t]he Senate went in willy-nilly, passed legislation, and never once had a hearing, never once had a discussion other than an hour or so on the floor”). 190. See Turner, 117 S. Ct. at 1189 (discussing the Court’s belief that it owed Congress deference out of respect for its legislative authority). 191. See id. at 1205 (O’Connor, J., dissenting) (cautioning the Court to take care in evaluating the government’s interests in supporting the must-carry provisions); id. at 1209-10 (O’Connor, J., dissenting) (opining that the Court should regard the testimony of the interested parties with a degree of skepticism). 192. See Reno, 117 S. Ct. at 2344 (explaining that the Internet is “as diverse as human thought”). 193. See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256-58 (1974) (conceding that a newspaper is “not subject to the finite technological limitations of time”). 194. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388 (1969) (explaining that broadcasters did not have an unfettered First Amendment right because failing to realize and prevent the “massive reality” of interference would result in “chaos”). But see Leathers v. Medlock, 499 U.S. 439, 444 (1991) (stating that cable television is engaged in First Amendment protected speech, and should be treated as part of the “press”); FCC v. Midwest Video Corp., 440 U.S. 689, 707 (1979) (explaining that “[c]able operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include”). 195. See Turner, 117 S. Ct. at 1184, 1198-99. 196. See Tornillo, 418 U.S. at 258 (discussing the reality of economics that limits a newspaper editor to only printing what he can afford). 1999] CONVERGENCE 347 certain broadcast stations.197 It is this economic freedom that the Court infringes upon when sustaining the must-carry laws.198 The decentralized nature of the Internet forced the Court to hold that Congress’s statute was too broad.199 The Court in Turner, through the biased congressional findings, concluded that cable was growing into somewhat of a “quasi-monopoly” and, thus, should be brought into check.200 However, this finding was made after the enactment of the Act and ignored the Act’s impact. As previously discussed, the Act will open up the competitive markets to cable companies by allowing phone companies into the cable market.201 In fact, Justice Breyer demonstrated his ignorance of the Act’s impact on breaking down “quasi-monopolies” when he commented that “the burden the statute imposes upon the cable system, potential cable programmers, and cable viewers, is limited and will diminish as typical cable system capacity grows over time.”202 Justice Breyer thereby assumed that the cable companies will regain market share despite the enactment of the Act. In addition, he relied on the congressional findings to decide that if Congress did not enact the must-carry laws, the broadcast industry “‘would suffer serious financial harm and possible ruin.’”203 Justice O’Connor again pointed out there is no credible evidence that more than “marginal stations” will be effected.204 If there is an alternative that is less restrictive on First Amendment rights, a statute will not survive strict scrutiny.205 197. See Turner, 117 S. Ct. at 1191 (citing studies that “indicate that cable- carried broadcasters so enhance competition for advertising that even modest increases in the numbers of broadcast stations carried on cable are correlated with significant decreases in advertising revenue to cable systems”). 198. See id. at 1194-95 (discussing the consequences of vertical and horizontal integration within the cable industry, and the subsequent access limits it will cause “broadcast competitors”). 199. See Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) (explaining that several major online services offer access to their networks as well as to larger resources on the Internet); see also id. at 2336 (stating that “‘[n]o single organization controls any membership in the Web, nor is there any centralized point from which individual Web sites or services can be blocked from the Web”); id. at 2347-48 (discussing the broadness of the CDA). 200. See Turner, 117 S. Ct. at 1190 (discussing the congressional findings of the increasing monopoly cable operators exercised over cable households). 201. Refer to note 183 supra and accompanying text (noting the Act’s deconstruction of entry barriers to the cable industry). 202. Turner, 117 S. Ct. at 1205 (Breyer, J., concurring). 203. Id. at 1185 (quoting Turner Broad. Inc. v. FCC, 910 F. Supp. 734, 743 (D.D.C. 1995), aff’d, 117 S. Ct. 1174 (1997)). 204. See id. at 1207 (O’Connor, J., dissenting). 205. See id. at 1199-1200 (discussing the alternatives that must be analyzed before allowing a statute to infringe on First Amendment rights, but noting that 348 HOUSTON LAW REVIEW [36:321 For example, in Reno, the Court concluded that in addition to the other factors stated, there was a less intrusive method to protect children from “indecent” and “patently offensive” material through the use of software with which parents can screen for such material.206 However, in Turner, the Court relied upon the congressional findings to dismiss the use of A/B switches, which can allow the subscriber to switch between cable systems and local broadcast channels not carried by the cable system.207 The Reno Court determined that the CDA was content- based, which triggered the use of strict scrutiny.208 The dissent in Turner determined that the must-carry rules were content-based as well, which prompted a call for strict scrutiny.209 Justice Breyer even agreed that the statute was content-based but dismissed it as not significantly invasive of First Amendment rights when compared with the more important economic goal of curbing the power of a “quasi-monopoly.”210 The Reno Court did mention Turner in its opinion when discussing the differences in the intrusive nature of the Internet as opposed to cable companies.211 It reasoned that in Internet cases the user has to take affirmative steps to reach an “indecent” or “patently-offensive” site.212 By contrast, in radio or television broadcasting such material can easily be seen or heard by accident.213 While this is true, the nature of newspapers can arguably be as intrusive as broadcasting. For instance, if one subscribes to a newspaper that contains material the subscriber might find offensive, the newspaper, according to Near, is still protected because of the First Amendment’s protection of the press.214 Applying that analogy to must-carry provisions, assume, for example, that a person subscribes to a cable company and that cable company chooses not to broadcast a local news station alternatives are not needed when analyzing content-neutral legislation). 206. Refer to note 88-89 supra and accompanying text (noting the availability of less restrictive alternatives for protecting minors on the Internet). 207. See Turner, 117 S. Ct. at 1200-01. 208. See Reno v. ACLU, 117 S. Ct. 2329, 2342-43 (1997). 209. See Turner, 117 S. Ct. at 1208 (O’Connor, J., dissenting) (stating that “the must-carry provisions should be subject to strict scrutiny, which they surely fail”). 210. See id. at 1204-05 (Breyer, J., concurring) (opining that the statute survives intermediate scrutiny even if it is not properly tailored to its purely economic objectives). 211. See Reno, 117 S. Ct. at 2343. 212. See id. at 2336 (noting that Internet users seldom encounter offensive material accidentally). 213. See id. (noting that radio and television communications can be found by “merely turning a dial”). 214. See Near v. Minnesota, 283 U.S. 697, 713-14 (1931). 1999] CONVERGENCE 349 and instead airs its own news show. Should not the First Amendment and the Near concepts of liberty protect the views of the cable news show? Finally, the Reno Court wanted to protect the Internet and its diversity of decentralized sources. This same “multiplicity of sources” argument was used by Justice Kennedy in his defense of the must-carry laws.215 The main difference between the cases is that the Reno Court used a strict scrutiny level to protect the diversity of viewpoints on the Internet,216 whereas the Turner Court used only an intermediate level of scrutiny to uphold the multiplicity of sources that the must-carry provisions supposedly protected.217 The content-specificity is the flaw in the must-carry law. While it may protect the multiplicity of sources in a local broadcast world, there is no mention in the decision regarding the loss of (potentially as diverse) cable sources that have to be given up for the local broadcast ones. As Justice O’Connor explained: “Laws that single out particular speakers are substantially more dangerous, even when they do not draw explicit content distinctions.”218 The must-carry laws not only take away editorial control from the cable operators but also the potential diversity of viewpoints that a cable operator might wish to advocate. IV. CONCLUSION The quest to converge the Internet and cable television will continue despite the Court’s lack of consistency when dealing with content-based legislation. The question is what the Court should have done with Reno and Turner, and what it should do when faced with a convergence case in the future. The Reno Court took the right stand by not letting the electronic word cloud its judgment. It ruled that the Internet is essentially the same as the printed word, and thus affords strict scrutiny. When comparing Turner to Reno, the analysis points out the similarities that already exist between cable and the Internet even without convergence. Thus, even before 215. See Turner, 117 S. Ct. at 1181. 216. See Reno, 117 S. Ct. at 2350 (holding that the “CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of ‘narrow tailoring’ that will save an otherwise patently invalid unconstitutional provision”). 217. Turner, 117 S. Ct. at 1205 (Breyer, J., concurring) (agreeing with the majority that the “statute survives ‘intermediate scrutiny’”). 218. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 676 (1994). 350 HOUSTON LAW REVIEW [36:321 convergence, the Court should have used strict scrutiny when dealing with the must-carry provisions, and so, with convergence, the Court should definitely treat the new medium with the same scrutiny that it affords the Internet on its own. The future for Bill Gates hinges somewhat on his gamble in the “box” that carries all forms of electronic media through a single cable wire.219 By not affording a strict level of scrutiny to the box, and in turn not treating it as a form of print media, the future of this exciting new medium hangs in the balance, resulting in a loss not only to Mr. Gates, but to the potential users as well. Alamdar S. Hamdani 219. See Bury, supra note 1 79, at 3 (quoting Ken Auletta of the New Yorker magazine, who claims that Mr. Gates “‘wants access to the cable box because in each cable box is a powerful microprocessor or computer that has an ability to do transactions, . . . to have a memory of what transactions or programs you’ve watched, movies you’ve ordered, things you’ve shopped for, travel arrangements you’ve made, [and] banking you’ve done’”).