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“cable television companies use a portion of their available
space to reprint (or retransmit) the communications of others,
while at the same time providing some original content.” City
of Los Angeles v. Preferred Communications, Inc., 476 U.S.
488, 494 (1986) (internal quotation marks omitted). Through
both types of actions—creating “original programming” and
choosing “which stations or programs to include in [their]
repertoire”—newspapers and cable companies “seek[] to
communicate messages on a wide variety of topics and in a
wide variety of formats.” Id.
In selecting which speech to transmit, newspapers and
cable companies engage in editorial discretion. Newspapers
have a finite amount of space on their pages and cannot
“proceed to infinite expansion of . . . column space.” Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257 (1974).
Accordingly, they pick which articles and editorials to print,
both with respect to original content and material produced by
others. Those decisions “constitute the exercise of editorial
control and judgment.” Id. at 258. Similarly, cable operators
necessarily make decisions about which programming to
make available to subscribers on a system’s channel space.
As with newspapers, the “editorial discretion” a cable
operator exercises in choosing “which stations or programs to
include in its repertoire” means that operators “engage in and
transmit speech.” Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622, 636 (1994) (internal quotation marks omitted).
The Supreme Court therefore applied intermediate First
Amendment scrutiny to (but ultimately upheld) must-carry
rules constraining the discretion of a cable company
concerning which programming to carry on its channel menu.
See id. at 661–62.
In contrast to newspapers and cable companies, the
exercise of editorial discretion is entirely absent with respect
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