Given that many cable operators, such as Time Warner, will not want to risk prosecution, and in any event have no fondness for access channels, the end result will be a massive amount of censorship by cable operators and the loss of independent and innovative programming. Before Section 10's enactment, federal law and many state and local laws prohibited cable operators from interfering in any manner with programming on access channels, regardless of content, because access channels' very raison d'etre is to establish a forum in which persons other than large media companies can speak to the public in one of the nation's most important forms of communication. But such a joint enterprise between government and private actors is subject to constitutional scrutiny. And when subjected to well-settled First Amendment standards, Section 10 fails. The fact that cable operators are private companies does change the constitutional standard because the companies may censor only under the authority of Congress.
All statutes are subject to constitutional review.
In the brief hours that the amendment was considered, Senator Helms failed to present evidence that lockboxes are no longer a sufficient means of facilitating parental protection of children, or to consider any other less restrictive alternatives, such as blocking programming on subscriber request. Cable programmers engage in and transmit speech, and as such are entitled to the protections of the speech and press provisions of the First Amendment. The levying of fines and other penalties, not to mention the direct censorship by cable operators, will undoubtedly have a chilling effect on free speech. The law is impermissibly underinclusive, because it blocks only speech by leased access programmers. The leased access cable medium represents a vital and unique environment for protected speech that is seriously endangered by the unconstitutional provisions of the 1992 Cable Act.