corporations have the freedom to speak however they see fit without restrictions imposed by the government and so when a student does restrict the ability of a person to speak the st amendment is implicated and then courts must decide point what the appropriate level of scrutiny is whether it's going to be strict scrutiny intermediate scrutiny or the commercial speech task and decide whether whatever the restrictions are pass pass muster here though maybe has not imposed any restriction on the ability of either he will programmers or he will operators to speech programmers are free to create whatever content they like and they're free to license it to cable operators in total council as a baseline for me and i think this might be helpful for all of us i am trying to understand how this law d would actually work in practice well what does it actually require people operators to do in court that one has to be a subscriber before they can invoke this law and as i understand the subscriber to be one who has agreed to purchase at least a basic to understand your the way the law would work is that is that once a person becomes a subscriber by purchasing whatever sort of the basic level of cable is for that particular cable operator then the customer would be allowed in the cable operator would be required to provide any additional content that the customer wants an oligarchy says so if they get a basic package that just includes you know the very basic sort of networks and a few other channels but they also want to get  n in addition instead of having to buy you know maybe a one hundred dollars sports package or whatever the package is that includes that station the cable operator would be required to give them just simply that individual station that that one who bought the basic package you could have bought any package and you would have been required on your request the cable company would then have been required to provide you with say the red sox or and for that matter perhaps not the entire season but a single ga clear that you have to be a subscriber well yes but there is subscribers star sorts of packages that that's correct your honor and i i don't know if i have exactly the be the intent of your question but however the person becomes this of a subscriber and so whatever package or programming that out person is of striving to anything that's not included with that then has to be provided on all of our bases ok and then my nd question had to report it now is that is that yes if so if someone wanted to simply get a single red sox theme then the cable provider would be required to provide that so that's the way i read it and i appreciate your will be deciding what they may have had what they may have to delete from the offer in something that takes to their customers so just as you described changes they have to make in  turd decision which which was really is is the principal case the good walkers are relying upon and becky's only stands for the proposition that there's this editorial discretion for him a companies decide you know what content they are going to offer to consumers so the problem in turkey was that the federal government was dictating the content that that he walkers had to provide so when the court talks about editorial discretion it's talking about you know what's what's channels of programs an operator will carry or will carry now what the main law does is it doesn't it doesn't get in the way that decision it doesn't get in the way of the decision about what channels or programs a cable operator wants to offer if it only kicks into place once the operator makes a decision it's discretionary decision to provide certain content and then at that point the law kicks in and says you know you're still free to offer this in packages you can still create your for your family programming to your comedy to your sports or you can create whatever tears or packages you want but you also have to give customers the option of buying it individually and i think you know if you go back and if you look at the declarations that were submitted in this case there's a declaration from nessun and there was a duck the ration from from comcast if you look at those really closely it's clear that the message being conveyed they're not attempting to convey some kind of message in in how they sell their channels so yes i have if i may interrupt it just re know i have some questions about that anon than the three or four arguments that both the cable operators and the programmers and by the way i don't think the district court opinion adequately dealt with the programmers argument is the argument that look by bundling in to package is who we are supporting small programs which we think should get some viewership but the only way we can make them commercially viable is by bundling them with more popular programs that strikes me as going not only to editorial discretion but directly to the st amendment interest in expanding expression and that is a choice that the cable operator the st amendment isn't isn't there to get a leg up to to to an issue programmer and i think the other point is that at this point in the in the in the in the in the ep in the affidavits in the declarations there's no evidence suggesting that that is going to be what the effect is so you're if you're correct and i sing on that there is some some reference in the declaration to to the need to promote nish programming there's nothing to suggest that this is going to interfere with that because they're still allowed to offer these packages we're not saying you can't offer these packages anymore and so i guess my best ally would people buy the packages if they can never get the not on the you know when i want to see the basis yes so so i think what i would say that is there is nothing in the law that restricts the the the amount that that companies can charge for the alattar programs so i would suspect and they put this in this is something that they do  that they want and so to the extent that they do lose any revenue because some customers are going to want to buy certain stations are like car they are free with their pricing model to to you know make up for that revenue or to really encourage people to buy the packages  scrutiny all right well well this is a sustainable governmental interest involved in this law so this official government interest in is is ensuring that that customers have access to cable television and so there's evidence in the router that for some people the cost of the package is prohibited for them so so if there's a particular channel that they want or particular programs they want to watch they simply can't afford to get that content and so so that's the interest of the state is a individually but to the extent that the court thinks that there's a problem with offering individual programs but there's not there's not that problem with channels i think it's fair for the court to sever out from from the statute the reference to the programs  except the district court gate issued the preliminary injunction based on the finding that the law selectively applies to one participant there is no severance available under this statute that solves that problem do we agree on add i know you don't think it's a problem but it's a problem if it's a problem  there is no other case in which a law was struck down merely because it applied just to some aspect of the press and the other point that i want to make there yonder is that does that mean already has a whole set of restrictions that apply only t we disagree so i think the problem is that the lines are getting word that because of the two different arguments the arguments about are we interfering with content and the argument that if the st amendment isn't what give it simply because we've seen the about one particular category position is that the simple fact that a state has imposed burdens on one particular class of st amendment speakers doesn't by itself mean the st amendment is implicated you have to go one step further which is to see whether or not what the state is doing is somehow interfering with the ability of that speaker to get their message across and so if you look at all the cases that they cite to in every single case the state has done something affirmative to make it more difficult for the person to get their message across saying i don't think the fact that consumer protection statutes cost everybody a little bit of money has anything to do with this case it's really seemed to me that what we were talking about was the differential treatment and not competitive entities and as i understood it before and the district court you ma attempt to justify why cable providers were singled out in this law but satellite t v was not and virtual content providers were not is that correct i'd say it's mostly correct your honor i will say that what we said wow is that is that the reason that this was applied to cable operators is it was your operators that the state was going to complains about they were getting complaints whether or not we can create a record to justify the law ok at end and the district court acknowledged that issue and said i'm not going to address it now it is a difficult issue i gather if your position would be your address that question the this court only needs to address it when there was an abuse of discretion in the district court issuing the preliminary injunction correct and we would not be offering an opinion on as to what happens on we manned or addressing this dispute about whether after the fact the state can come in and prove to a quote pointed that out which it's a legislature never considered is that correct that issue is is not from the core i guess the only thing i just want to clarify is that in terms of the abuse of discretion i mean our view is that the court has abused its discretion if it made an error of law which this court reviews de novo yes thank you that's very helpful thank you thank you well the no for question  please the court met he brought over the a pelleas the state's arguments under both the st amendment and preemption suffer from the same fundamental flaw they take an extremely cramped view of the constitutional principles here and preemption by arguing in essence that only a mandate to carry particular programming the channel of cable shows or individual programs would implicate the st amendment and that's simply not the case under the governing law that the log makes clear editorial discretionary implicated not only when we're told what to carry but how to carry programming that editorial judgment how to create packages and tiers of programming and whether to include programs in those tears or sell them a card is that the core of our business and the editorial discretion that cable operators and programmers make when programmers license content they often don't have the rights to aggregate content we put in our declaration from nessun for example that the major sports leagues won't allow the distribution over cable without being part of the basic here because they want to reach a wide audience and as judge lynch recognized that a big part of promoting diversity of content and nich programming to use packages so this is at the core of our business and this is a law that aims at the heart of our editorial discretion and even laws that incidentally affect cable have always been found to implicate at least immediate scrutiny but this is an easy case because this law is directed at our editorial judgment and discretion and ends to displace it do you agree that this is a consumer protection law i don't judge for way i think this tries to prevent aimed at promoting the interests of consumers but when the statute speaks of consumer protection laws it is generally talking about the types of consumer mandates that the f t c and state a g s enforce generally applicable anti fraud measures customer service discouraging now by generics prohibited the nothing visits when doctors indicated they didn't want to visit from drug a tailor's and again supreme court said no even if you have some form of mild consumer protection interests here that is not sufficient to justify the discrimination and the restriction on the commercial speech rights i think i am outfit is actually quite relevant to this appea l we certainly agree your honor the singling out as the district court recognize does put this warily within the st amendment but even more basically all of the court of appeals decisions and supreme court decisions that assess burdens on cable all of them have held that the st amendment is implicated when it goes to some speech interests and we get a few examples where the regulation impacted cable in a way that was far more afield from editorial discretion and this one a good example is los angeles versus preferred communications a case the supreme court decided before turner was decided and that case involved los angeles is decision to withhold the franchise from a cable operator even though the court said the interest there was really digging up city streets and attaching to utility poles something that really doesn't directly implicated into real discretion the fact that it would prevent the provision of a cable service made it obvious to the court that the st amendment was implicated by the same token when  agreement and we describe these as affiliation agreements between the programming network and the cable distributor that agreement is contingent on the programmer ascending to the manner of just abusing for example the declaration from ness and points  they can't license major league baseball content without a prior agreement from a cable operator to distribute it on the basics here so there won't be an agreement there is no notion that we agree to carry on only after there are some intrusion on our discretion that there won't be an opportunity to carry a lot of programming that is distributed in maine today because programmers will license it in that matter but even more fundamentally all of the cases i was describing i preferred communications and the d c circuits decisions on ownership limits recognize that even if you view this is an incidental impact and not a direct impact we think it's quite direct there to the st amendment is implicated so so where we're in the business of making editorial judgments and this law with an economic but your honor i don't think there's a need distinction between editorial choices and economic choices they are bound up together if we if we look at the business of newspapers which are quite obviously protected by the st amendment they make choices that are both editorial in nature and terms of layout but economics as we pointed out in our brief the boston globe doesn't sell the metro section of the art section of the sports section separately and they certainly don't sell individual article separately now there may be economic reasons for that and it's real reasons for that but there isn't really a distinction the states answer to that hypothetical is that well those are complete integrated works but that just begs the question they're complete an integrated because the boston globe has chosen to present them in that manner and by the same token the pup sure of an anthology of short stories stories may present it as a completely integrated work but that's a discretionary choice you can sell those stories individually maybe you choose to sell them together because they're all acting on a certain theme or maybe you just think it's a better business model but either way the st amendment applies council as i understand it the times the pose and perhaps the globe actually do sell crosswords and recipes by separate subscription and they are real money makers for the news papers and  assume you would say that telling them that they can't do it that way also violates a person amendment certainly your honor and i should be clear the cable operators sell a lot of content individually on all of our basis we sell a lot of movies that we all watch all the cart video on demand and their sports events that are available a preview point simply is that we get to make those choices together with programming providers cable operators i think government can't come in and dictate a particular manner of expression anymore than it can dictate which programs are carried at all for given content trigger strict scrutiny but we have not asked this court to reach that question it's not necessary to reach because the state does concede that they can't look at any level of scrutiny on this record and so we have express lee disclaimed any interest in asking this reconsider that the district judge did recognize that even under intermediate spraycan it is a significant burden to show that this law directly advances that sort of governmental interest and there's zero evidence that it does and i guess the evidence shows i closely divided series of decisions established the principle that editorial discretion was implicated but nevertheless applied it to me it's very well written and turner wanted turner to and many other people decisions challenging regulations that found unquestionably speech was implicated intermediate scrutiny apply that some of those cases may have been superseded because the reed case in the supreme court i think broadens the conception of what is cut and paste but one of the reasons we want this court to reach preemption is what we think are right strict scrutiny should apply we think we are right that the legislative preannouncement record was to threadbare just support this law under any level of scrutiny we don't think which if the litigate those issues if the court agrees with us that there was clear error on the application of the would be wise for us to get into preemption you have a very good argument as to why we should well your honor certainly this court frequently upholds injunction case you know without going back below and deciding levels of scrutiny and deciding sufficiency of a legislative record those two are important questions that would have to be joined and wouldn't if the district court if it's  were corrected we think it's fundamentally wrong because just as one of the st amendment they argue there has to be the dictating of particular program carriage or forbidding that carriage ok that is an incredibly narrow reading of this preemption provision which states that requirements regarding the provision or content of cable services are preempted if those go beyond what is prescribed and title six of the act understood the preemption argument you are asking us to reach a ground that would put us in conflict with the d c circuit whereas on your telling of it if we were to decide this amendment grounds we would not be in conflict with the decision not any other search is that correct i think that's correct depending on how you read united video your honor that court can be read to say that if the decision that th government measures need to be content based and we have argued that this goes back to judge that this is question of a level of scrutiny we have argued that the measure here is is cut and paste it does result in the withdrawal of programming that can't be licensed all the cart and so in that sense it can be harmonized with united video because it does go to the content of of cable services not just the programming the provision we think of it quite clearly implicates provision as well and united video is wrong insofar as it says that you know provision doesn't have any independent meaning and it only measures that dictate particular programming to be carried section forty four well i'm not sure we should be at this point in our history under state your honor i would just point out in closing that this court's precedents do very strongly support our position your own opinions in massachusetts deliberate delivery association cases under the like this one purposefully expansive preempt where either expressly reference in this case the provision of cable service or they substantially impacted we think this case much more than the wage laws issue in the ma your audio and video attorney tab you have to i'd like to start sort of where i think mr rowell and up and up towards the end of his presentation what he said that this law is going to result in the withdrawal of content because of franchising agreements and our position is that is that the current record does not support that as the district court noted we don't have these franchise agreements in front of us so we don't know for example whether it says you know you may you know you must do the following things  that they could go back and renegotiate these franchise agreements and it was purely speculation at this point as to whether or not this law would have and they also say you would put them end violation are honest every agreement that they no what i'm addressing here is is this issue that that this is what is going to affect content because it's going to result in the withdrawal of content in name and so so our point there is that is that all the record suggest homes to refit old cable boxes on televisions because they're not capable of doing what the law requires and that they would incur huge content that gets to consumers and they're not saying that they're just saying that this would be really expensive for us to do they're not saying that it's going to result in people no longer having access to our the current network or something like that well a number of consumers at least until they get their boxes changed when can't access well i'm not sure that's right my reading of the declarations is that those upgrades will be necessary for those consumers who want to start buying content our car i don't mean the declaration is a saying that that we that we won't even be able to provide the packages anymore and so you know we don't know how many consumers are going to want to purchase content our car but i don't think in any rate consumer protection this is an anti bundling law at its heart and i'm going to say this i know how the court's going to react because i recognize there's a difference to some extent but if if it made decided that consumers should be allowed to buy one or two eggs at a time at the grocery store or not have to buy a whole doesn't of eggs and so it passed a law requiring that the grocery store sell eggs individually that would be a classic consumer protection measure now i recognize that that's different because grocery stores are not engaging to the issue of the boston globe and you know we used some hypotheticals about a bookstore or or a musician with an album you know i really think that until the turn of his was decided it was really an open question whether he will operators or even like or even serve the supreme court said said they absolutely are st of them actors because they're exercising their discretion in deciding what content they are going to but what the court didn't say and what i think it would be it would be a leap for this court to do is to say that not only does the  you seem to have forgotten that content providers are also plaintiffs in this case and have put on their own declarations and again are we would sit in those declaration don't support the notion that they're somehow going to not be able to get their content to consumers they can they can still give it to the would say that the record demonstrates this was done purely for economic and business interest it was done so that you're forcing consumers to buy a lot of stuff that they don't want to get the few things that they want and so that's what our view of the record is