Lawsuit Against Fox News Claims Cable Television Is Unprotected by the First Amendment
I blogged about this lawsuit (Wash. League for Increased Transparency & Ethics [WASHLITE] v. Fox News) when it was filed last month; my view is that the suit is based on constitutionally protected expressions of opinion, and therefore barred by the First Amendment. But the plaintiff’s response to Fox’s motion to dismiss did much more than just argue that Fox’s statements were factually false—among other things, it claimed that cable television channels just aren’t protected by the First Amendment:
Fox cites to no Washington case or federal case which confirms that a cable television programmer/content provider has an independent First Amendment right when using a system owned and operated by a cable operator. Nor has it cited to a case that equates a content provider on a cable system to that of a newspaper or broadcast television station. In fact, the law is just the opposite: cable programmers, such as Fox is, have no such rights when using a cable system owned by a separate entity.
Denver Area Educ. Telcoms. Consortium, v. FCC, 518 U.S. 727 (1996) is instructive. There, the Supreme Court was asked to decide upon the constitutionality of certain provisions of the Cable Act which contained provisions requiring access to cable television systems for public access channels and restricted programming which “depicted sexual or excretory activities or organs in a patently offensive manner.” The Court concluded that portions of
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