The Right to Speak, the Right to Hear, and the Right Not to Hear: The Technological Resolution to the Cable/Pornography Debate

This Article concludes that the power of government to regulate cable pornography is limited to that which is legally obscene. Part I reviews Supreme Court cases delineating the relationship between the rights of privacy in the home and of freedom of speech. Part II demonstrates that · the technology of cable television provides the solution to the pornography dilemma. Cable television preserves both privacy and speech interests because individual subscribers can be given the physical means to block out programming they find personally offensive without affecting the ability of others to receive that programming. Where such accommodation of interests is permissible, the first amendment prohibits censorship as an overbroad remedy that needlessly infringes on the rights of speakers and willing listeners.

Part III of the Article analyzes how the cable/pornography debate is affected by the Cable Communications Policy Act of 1984 (the Cable Act). The Cable Act, the first comprehensive federal legislation governing the regulation of cable television, mandates a policy towards cable pornography comparable to that required by the first amendment. The Cable Act limits the ability of all levels of government to regulate cable programming to the regulation or banning of obscene cable programming, but also requires cable operators to provide devices to their subscribers that can block out programming.

Finally, the article explores the special congressional protection for access channels-channels set aside as a public forum for the use of all members of a community or for mandatory leasing to programmers who are not affiliated with the cable operator. On these channels, the Cable Act prohibits censorship not only by the government, but by the cable operator and even the entity managing the public access channels. In sum, both the first amendment and the Cable Act permit cable television to advance the public’s interest in receiving “the widest possible dissemination of information from diverse and antagonistic sources. “