The Real Story Behind Must-Carry

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Washington— A decade ago, five U.S. Supreme Court justices agreed behind closed doors to strike down a new federal law that required mandatory cable carriage of local TV stations.

But the coalition, spearheaded by Justice Sandra Day O'Connor, that wanted to topple the must-carry law turned out to be fragile. It collapsed when Justice David H. Souter had second thoughts and joined the pro-must-carry camp, supporting a law that broadcasters considered vital.

THOMAS VEERED

Souter's flip followed a mid-course correction by Justice Clarence Thomas into the anti-must-carry camp.

The result: What once might have been a 5-4 vote to overturn must-carry became a 5-4 vote simply remanding the case to a lower court. The high court ultimately affirmed must-carry in a 5-4 vote in 1997.

Cable's near miss on that important Supreme Court decision — and the nine justices' circuitous process — might never have become known outside the court's inner core, had it not been spelled out in the recently released papers and records of former Justice Harry A. Blackmun, a Nixon appointee who penned the landmark Roe v. Wade decision on abortion.

Blackmun, who helped change Souter's mind on must-carry, retired in 1994 and died in 1999 at 85. In 1997, he donated records from his long and distinguished judicial career to the Library of Congress, with instructions not to release them for five years after his death.

On March 4, the Library opened the records to the public — in all, about 1,600 boxes of letters, memos, draft opinions and notes that shed some light on the inner workings of the country's most secretive institution from a man who served it for 24 years.

The must-carry case has a long shadow. Broadcasters today rely on their victory in their effort to get the Federal Communications Commission to force cable systems to carry not just one programming service per TV station, but as many free programming services as a station can pack into its digital spectrum.

ROOTS IN 1992 LAW

Must-carry litigation had its genesis in the Cable Television Consumer Protection and Competition Act, a 1992 law enacted over the veto of former President Bush a month before his re-election defeat.

That law permitted local TV stations to demand cable carriage in a provision that came to be known as must-carry.

Broadcasters lobbied for the handout, claiming cable had a monopoly that could ruin marginal TV stations by denying carriage.

The cable law inflicted a lot of punishment, including draconian retail-rate regulation that the industry asked the federal courts to strike down.

But only the challenge to must-carry rights made it all the way to the Supreme Court, which agreed to review a lower ruling upholding must-carry in a case called Turner Broadcasting System Inc. v. the Federal Communications Commission.

ARGUMENTS IN 1994

The Turner case was widely covered in the media. The Supreme Court heard oral arguments Jan. 12, 1994, and the justices convened privately two days later to vet the issues, cast preliminary votes and assign opinions.

They met again in conference on Jan. 21, but Blackmun's files do not include records of this meeting.

Blackmun's handwritten notes from the Jan. 14 conference and memos written later by him and his law clerk, Ann Hubbard, demonstrate that the cable industry at one point had the necessary five votes to win before court politics intruded and resulted in Souter's changing sides.

Hubbard wrote Blackmun Jan. 19 to make sure he understood that "after CT [Clarence Thomas] switched his vote," O'Connor had "a majority."

Hubbard, now an associate law professor at University of North Carolina at Chapel Hill, declined a reporter's request to discuss the case or corroborate case analyses and strategies in Blackmun's records — even those she drafted.

Julius Genachowski, Souter's law clerk in 1994 and now an executive vice president of Barry Diller's InterActiveCorp., also declined to discuss the case, saying clerks were required to maintain confidentiality.

FIRST AMENDMENT CLAIMS

Throughout the must-carry litigation, the cable industry argued that systems were like newspapers, and that the government couldn't force a TV station to appear on cable any more than it could force a columnist's opinions to appear on the pages of The New York Times, over the objections of the publisher.

In the first justices-only conference after the 1994 oral argument, O'Connor maintained must-carry was a content-based law that required the court's highest level of review, called strict scrutiny.

Content-based laws are unconstitutional under the First Amendment if they don't serve a compelling governmental interest and utilize the least-restrictive means.

In O'Connor's view, must-carry was content-based because the Cable Act specifically referred to the programming of local stations.

Further, she believed the requirement that cable systems reserve up to one-third of their channels to accommodate local TV stations was not the least-restrictive remedy.

Blackmun's conference notes quote O'Connor saying Congress used "a meat axe" in enacting must-carry. [Blackmun, who clearly supported the must-carry law, jotted in his conference notes that must carry was a "tempest in a teapot."]

O'CONNOR'S CAMP

Blackmun's records indicate O'Connor had four votes in conference or soon thereafter: hers, Souter's and those of Justices Antonin Scalia and Ruth Bader Ginsburg.

Scalia and Ginsburg agreed with O'Connor on applying strict scrutiny.

In a distinction that would later prove critical, Souter agreed with the result O'Connor sought — though not with her tough legal standard.

Souter maintained that must-carry flunked one prong of a less-demanding court standard and floated the idea of vacating and remanding the case to the lower court for additional fact finding.

Initially, Souter's vacate-and-remand idea wasn't galvanizing, evidently because no other justice supported it in conference.

Blackmun and the other four justices who weren't in the O'Connor camp had different views on the correct result in the case (as published opinions would later show). But they were united in the belief that must-carry should not be struck down.

They also agreed that O'Connor's reliance on strict scrutiny, which almost automatically means the government loses and laws are tossed out, was incorrect.

'O'BRIEN' BACKER

Chief Justice William H. Rehnquist, for example, believed the correct standard of review was the so-called O'Brien test, a 1968 Supreme Court precedent that established the criteria for analyzing a law's impact on First Amendment rights in a content-neutral fashion.

Under O'Brien, a content-neutral law is consistent with the First Amendment if it serves an important governmental interest, is unrelated to the suppression of free speech and does not burden substantially more speech than necessary. It was failure to satisfy the last O'Brien factor that originally landed Souter in O'Connor's camp.

In a memo to Blackmun, Hubbard quoted Souter saying without elaboration that the must-carry law "blew apart" with regard to whether its burden on cable's speech was "no greater than essential" in furthering the government's important interest.

For his part, Blackmun didn't view must-carry as a threat to free speech or to cable's editorial discretion. He believed the court should defer to the predictive judgment of Congress about cable's anti-competitive threat to free over-the-air TV.

"I still am inclined to think that this case is not nearly as important as the publicity it has received and the media attribute to it. If it is important, it is probably only for the short run," Blackmun said in a Jan. 19 document he labeled "Personal note."

But within the court, Machiavellian instincts were at work. Hubbard sensed that must-carry might be doomed. In a Jan. 13 memo, she urged Blackmun to consider voting to strike down must-carry, even though he supported it.

Her point: The contrarian vote would make Blackmun the most senior justice in the majority and give him the power to write the opinion himself or assign it to a moderate.

"If the Cable Act is going to go down, it might be better for it to go down easy, in an opinion that you write, or perhaps, assign to Justice Souter," Hubbard wrote.

THOMAS REVERSES

O'Connor got her fifth vote five days after the conference. On the afternoon of Jan. 19, Thomas circulated a memo in which he announced he would vote to strike down must-carry, after recently voting to uphold it.

"Upon further reflection," Thomas said in a spartan, two-sentence memo, "I have decided to change my vote, and now vote to reverse."

At that moment, cable had the case won.

The choreographed assault on O'Connor's majority began immediately.

Blackmun's receipt of the Thomas memo apparently triggered his decision to draft the one-page "Personal note" and muse about how the tide had turned against the proponents of must carry.

"The Chief Justice and I discussed on the Bench this morning the rumor that CT [Clarence Thomas] was changing his vote. This was confirmed by his memorandum this afternoon. I suspect that AS [Antonin Scalia] 'got to him,' although of course there is no sin in that," Blackmun wrote.

IT WAS 'PERSONAL'

Former Blackmun clerk Edward P. Lazarus said in an interview that Blackmun's "Personal note" was a diary entry he would not have shared with the other justices because of the impolitic remark about Scalia.

"There is no way Justice Blackmun would have circulated a note like that. He was a circumspect man. That is clearly a private memo," said Lazarus, now an appellate attorney with Akin Gump Strauss Hauer & Feld in Los Angeles.

Blackmun and the other justices who wanted to affirm must-carry — Rehnquist, Anthony M. Kennedy, and John Paul Stevens — worked out a strategy to lure Souter away from the O'Connor majority.

They agreed that if Souter would cooperate, they would back his vacate-and-remand proposal, with instructions to the lower court to take evidence on whether must-carry burdened cable speech more than necessary — the part of the O'Brien
test that had troubled Souter at the outset.

"The goal to be achieved, short of affirmance, is to remand the matter so that the government has the opportunity to make its case," Blackmun wrote in the last sentence of his "Personal note."

Souter accepted the deal, agreeing to sign the majority opinion written by Kennedy.

In a June 7, 1994, memo to Kennedy, Souter wrote: "Dear Tony: You have done a wonderful job, and I am in substantial agreement with your opinion. I'm ready to join if we can get closure on three issues."

They reached closure one week later.

Blackmun and Hubbard in their writings indicate the compromise to gain Souter's vote carried a risk: What if the lower court found that further evidence supported cable's opposition to must carry? Would Souter then wander back to the O'Connor camp?

OBVIOUS RISK

Oddly, nowhere do Blackmun and Hubbard state the obvious about how much risk they were were taking and who really held the cards. After all, if they didn't get Souter's vote, must-carry was going to be struck down, with cable systems possibly accorded the highest level of First Amendment protection, just like newspapers.

In late 1995, the lower court returned a 2-1 decision affirming must carry.

When the Turner
case revisited the Supreme Court a second time, the high court voted 5-4 to uphold must-carry, saying it satisfied the O'Brien standard.

Justice Stephen Breyer, Blackmun's successor, voted in the majority, joining Kennedy's 43-page opinion with Rehnquist, Stevens — and Souter.

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