Tribe Flunks Martin’s Cable Rebate Idea
Harvard Law School Professor to Testify Before Senate Commerce Committee
By Ted Hearn -- Multichannel News, 6/25/2007 5:57:00 PM
Harvard Law School professor Laurence Tribe will say in Senate testimony Tuesday that the federal government should expect to lose in court if it tries to force cable operators to provide refunds to customers who block violent programming.
Tribe -- who examined potential TV-violence regulations endorsed in a Federal Communications Commission report in April -- has the same losing forecast for regulations that require the individual sale of cable channels or that ban violent content entirely except during late-night hours when children are not expected to be watching TV in large numbers.
“I believe the First Amendment invalidates, and would be invoked by the Supreme Court to overturn, a law adopting any of the FCC’s proposals,” Tribe said. “Although parents can have a legitimate interest in restricting the television their children watch, the FCC makes a basic error in thinking that the solution is more intrusive governmental control over the free flow of speech, rather than more narrowly tailored and far less restrictive alternatives to facilitate parental control.”
Tribe is scheduled to testify before the Senate Commerce Committee on the constitutional implications of the FCC report. Hired by a group of cable-, broadcasting- and movie-industry giants opposed to more regulation, Tribe explained that the courts would toss out a cash-back mandate mainly because the government is prohibited from designing regulations with a content-limiting purpose.
A mandatory rebate system, he added, would rely on the regulation of legally protected violent speech to deprive cable operators revenue from such speech.
“The freedom to speak is inseparable from the freedom to charge for that speech,” Tribe said, putting him at odds with FCC chairman Kevin Martin, who claimed that a rebate system would raise fewer constitutional problems than some alternatives.
In addition, Martin said no one has a First Amendment right to receive payment for their speech.
Quoting a 2003 opinion by Justice Antonin Scalia, Tribe’s testimony disagrees with Martin on the compensation issue: “The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.”
Tribe is to appear on behalf of The Ad Hoc Media Coalition, which includes the Motion Picture Association of America, the National Association of Broadcasters, the National Cable & Telecommunications Association, ABC, CBS, Fox Entertainment Group and NBC Universal.
