Denver Law Review Volume 63 Issue 4 Article 2 February 2021 Cable Comes of Age: A Constitutional Analysis of the Regulation of "Indecent" Cable Television Programming Lynn D. Wardle Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Lynn D. Wardle, Cable Comes of Age: A Constitutional Analysis of the Regulation of "Indecent" Cable Television Programming, 63 Denv. U. L. Rev. 621 (1986). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. CABLE COMES OF AGE: A CONSTITUTIONAL ANALYSIS OF THE REGULATION OF "INDECENT" CABLE TELEVISION PROGRAMMING BY LYNN D. WARDLE' TABLE OF CONTENTS Introduction ............................................ 622 I. The Coming of Age of Cable Television .................. 623 A. The Rise of Cable Television and of Indecent Cable Program m ing ....................................... 623 B. The Public Controversy and Political Reaction ........ 626 II. Cases and Commentary Considering the Constitutionality of Laws Regulating Nonobscene but Indecent Cable Television Programming ................................. 629 A. The Supreme Court's Pacifica Decision ................ 631 B. The Decisions of the Lower Federal Courts ........... 633 1. H .B .O ............................................ 634 2. R oy City .......................................... 635 3. Cruz (I) and Cruz (H) ............................. 638 4. Wilkinson (I) and Wilkinson (II) .................... 640 C. The Analytical Errors in the Lower Federal Court Opinions....................................... 645 1. Some Regulation of Nonobscene Sexually Explicit M aterial is Permissible ............................ 645 2. The Pacifica Doctrine Is Not Limited to Radio Regulation ....................................... 646 D. The Law Review Commentators ...................... 648 III. A Model Analysis of the Constitutionality of Regulations Restricting "Indecent" Sexually Explicit Cable Television Program m ing ........................................... 649 A. The Intrusiveness of the Speech ...................... 650 1. The Pervasiveness of the Medium ................. 650 2. The Monopolistic Use of a Public Resource ....... 651 3. The Privacy of the Place into Which the Material Intrudes ......................................... 656 4. Audience Captivity ............................... 659 5. Accessibility to Children .......................... 661 6. The Manner or Form of Expression ............... 663 B. The Intrusiveness of the Regulation .................. 666 1. Professor of Law, J. Reuben Clark Law School, Brigham Young University. The author is indebted to Sheila Burger, Bryan Husted, and Jim Lundberg for their valuable research assistance, and to Professor Robert Riggs for his valuable criticism. 622 DENVER UNIVERSITY LA W REVIEW [Vol. 63:4 1. The Characteristics of the Medium of Com m unication .................................. 666 2. The Necessity for Other Regulation in the Public Interest .......................................... 668 3. The Type of Regulation Imposed ................. 669 4. The Context of Enforcement ..................... 673 C. The Balance of Harm ................................ 674 1. The Value of the Competing Interests ............. 674 2. The Cost of Vindicating Protected Interests ....... 675 3. The Ability to Obtain Redress .................... 676 4. The Availability of Less-Restrictive Regulations .... 677 IV. Federal Preemption of State and Local Regulations ........ 679 A. State and Local Regulations .......................... 679 B. Federal Statutes and Regulations ..................... 679 C. Cases Considering Preemption of State and Local Cable Indecency Regulations ......................... 682 1. Crisp ............................................. 682 2. Wilkinson (I) and Wilkinson (II) .................... 684 D. State and Local Regulation of Indecent Cable Programming is Statutorily Authorized, Not Preempted, by the Cable Communications Policy Act of 1984 ............................................... 686 E. Attempted Federal Preemption of State and Local Indecency Regulations Would Raise Serious Constitutional Questions ............................. 692 C onclusion .............................................. 694 INTRODUCTION The explosive growth of the cable television industry in the United States during the past two decades has engendered a provocative new social dilemma: the transmission of sexually explicit programs over cable into communities and homes where cable television is desired, but sexually explicit programming is not. Legislation designed to respond to this problem has stimulated litigation raising an important question of constitutional law: Does state and local regulation of nonobscene, but indecent, sexually explicit programming over cable television violate the first amendment or the supremacy clause of the Constitution? The purpose of this article is to review the cases and commentaries which have addressed this issue and to propose a model of analysis for assess- ing the constitutionality of cable television indecency regulations. The article leads to two important, albeit unexpected, conclusions. First, reasonable regulation of sexually explicit indecent cable television pro- gramming is permissible under the first amendment. Second, state and local indecency regulations are not preempted by federal law. Part I of this article describes the societal context in which the con- stitutional question arises, including the recent growth of cable televi- sion and of sexually explicit cable programming, the public controversy 1986] CABLE TELEVISION PROGRAMMING over sexually explicit "indecent" cable programming, and the enact- ment of laws regulating sexually explicit cable programming. Part II contains a review and criticism of the cases and commentaries which an- alyze whether laws regulating nonobscene, but indecent, cable television programming are constitutional. Part III presents and applies a model of first amendment analysis for assessing the constitutionality of cable television indecency regulations. Part IV examines whether state and local regulation of indecent cable television programming violates the supremacy clause of the Constitution, and explains why state and local cable indecency regulations are not preempted. I. THE COMING OF AGE OF CABLE TELEVISION A. The Rise of Cable Television and Indecent Cable Programming Cable television has experienced incredible growth during the past two decades. In 1963, two decades after the first cable television system began operating in this country, 2 there were approximately 1,000 cable television systems in operation serving approximately 950,000 subscrib- ers.3 By 1973, more than 2,900 cable systems were in operation serving approximately 7.3 million subscribers. 4 In just ten years the number of cable television systems had increased by nearly thirty percent and the number of subscribers had grown by more than 700 percent. During the next decade the number of cable systems again doubled; the number of subscribers quadrupled. By mid-1983 there were 5,748 cable televi- sion systems in operation in the United States serving an estimated 31.7 million subscribers. 5 In the same year, cable "penetration" reached 38 percent of all homes with television sets in the United States.6 ByJanuary, 1985, cable penetration was at 43.7 percent, viewed in more than 37.2 million homes. 7 It is estimated that cable penetration will reach fifty percent by 1988.8 Of course, the financial investments in the cable television industry and the potential return on those investments are staggering. In 1984, cable operators spent $1.138 billion to build, rebuild and upgrade cable plants.9 That same year, however, cable system operating revenues to- 2. REPORT OF THE SLOAN COMMISSION ON CABLE COMMUNICATIONS, ON THE CABLE: THE TELEVISION OF ABUNDANCE 24 (1971) [hereinafter cited as SLOAN COMM'N REP.]. 3. TELEVISION DIGEST, INC. TELEVISION & CABLE FACTBOOK No. 52, CABLE & SERVICE VOLUME 1735 (1984) [hereinafter cited as TELEVISION & CABLE FACTrOOK.] 4. Id. 5. Smith, Reporter's Notebook: Cable Meeting, N.Y. Times,June 18, 1983, § 4, at 48, col. 5 [hereinafter cited as Smith, Reporter's Notebook]. See also Hooking Up to Cable Households, TIME, Apr. 18, 1983, at 68. By mid-1984 there were 6,400 cable television systems in operation in the United States. TELEVISION & CABLE FACTBOOK, supra note 3, at 1735. 6. Smith, Reporter's Notebook, supra note 5, § 4, at 48, col. 4. See also Nielsen Charts Cable Universe at 35r&Penetration, BROADCASTING, Jan. 10, 1983, at 92. 7. Nielsen: U.S. Penetration Reaches 43.7 Percent, CABLEVISION, Jan. 14, 1985, at 17. 8. Cable Industry Growth Chart, CABLEVISION, May 13, 1985, at 48. 9. Dawson & Capuzzi, Slow but Steady: The New Era in CA TV Construction. CABLEVI- SION, Mar. 4, 1985, at 30. DENVER UNIVERSITY LA W REVIEW [Vol. 63:4 tailed $8.4 billionl 0 and industry profits reached $600 million.'' A 1984 study of 226 companies involved in ten different segments of the com- munications industry revealed that cable and pay television led all other segments of the industry in overall financial performance in 1983.12 Today cable television system operators can offer subscribers doz- ens of television channels, clear cable delivery of broadcast television