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A&A: Does the First Amendment Protect Against Censorship Public Access TV?

Q:  I’m trying to find out if a public cable access station has the right to censor the content of a show airing on community public cable access channels.

To be more specific, there is a disclaimer at the start of the show stating that “the opinions and viewpoints are not of staff or management.”

The show is a sports show. They are threatening to suspend its host and airing because they claimed that a caller spoke about wrestling for 15 minutes and it was too long and trying to stop the hosts from talking about the “take the knee” issue in football because they said it’s political, and that they are refusing to air any political content, even though this is a topic covered in the major media.

They are also trying to suspend the hosts because the former cohost is friend of theirs, and he quit the show when he didn’t like the content, (the aforementioned “take the knee” discussion) although it is not his show. This party has been offensive about his now former co-hosts on his show, but he has not been censored due to his special relationship with management. Is there any action we can take to prevent management from censoring the show or it’s hosts?

None of the material is obscene or offensive, and it is my understanding that the First Amendment censorship, and protects free speech. As this station is partially supported by tax dollars, and is supposed to be an open forum for the community, how is it possible they can get away with this? The hosts of its shows are volunteers, and not paid to produce the content. Can you please tell me what we can do to protect our rights? Any help would be greatly appreciated.

A:  Circumstances vary, but censorship very often runs afoul of the First Amendment—especially when it involves issues of public concern, such as the ”taking a knee” protests.  As you can imagine, the analysis of whether something would be considered censorship is very fact
specific, and we unfortunately don’t have the resources through this service to fully research the issue as it applies to public cable access channels.

Based on some general research, it appears that the answer to your inquiry might turn on whether public access channels are considered public forum and therefore subject to traditional First Amendment forum analysis.  This is a question on which there seems to be some disagreement among the courts.  The U.S. District Court for the Southern District of New York, however, recently stated that “there is no clear
precedent governing whether public access channels are public fora. The issue is certainly a close call. However, this Court agrees with those courts in this Circuit and elsewhere which have concluded that public access channels are not public fora.” Halleck v. City of New York, 224 F. Supp. 3d 238, 246 (S.D.N.Y. 2016).  Please note that this decision is currently on appeal to the Second Circuit.

You should also be aware of 47 U.S. Code§ 531(e), titled Cable Channels for public, educational, or governmental use, which provides that “[s]ubject to section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity.”  Depending on the specific facts of your situation, you might find this Code Section helpful.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

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