produce, a clear and immediate danger of some substantive evil which the state constitutionally may seek to prevent has been settled." Whitney v, California (1927)' In one of his more widely known opinions, Mr. justice Brandeis reviewed the principles underpinning the adoption of the First Amendment: Those who won our independence
believed that the linal end ot the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.
They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of
liberty. They believed that freedom to think as you will and to speak as you think are means indispensable
to the discovery and spread o( political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a
political duty; and that this should be a fundamental principle of the American government. 6
These principles point to the real heart of the First Amendment: the peoples' right to know, to receive information unabridged, uncensored and unrestrained by any authority. The corollary of the right to speak is the right of the listener to hear and essential to the exercise of that right is the right to decide for oneself what is artistic or educational or pleasing or ollensive. Anyone who would advocate that the government be empowered to make these choices for the individual fails to understand the fundamental principles underlying the First Amendment. Television's presence and influence in this country is inescapable. With the advent of cable television the power of the media to inform, educate, offend or enlighten is greatly expanded. Current estimates are that by 1990 more than 57 million households will be cable television subscribers.' The power of such a medium to intrude or to ollend as well as to enlighten, inform or en-
tertain cannot be denied. But the power to intrude or offend is not of itself sufficient justification for abridgement o( the fundamental right oflree speech. While the Supreme Court has not yet addressed the application of the First Amendment to cable television, the fact that this medium dillers in many characteristics from any of those to which the First Amendment doctrine has been applied requires that we carefully examine both the content and the context of the speech which is to be subject to restriction. Mr. justice Holmes has advised us that: The character of every act depends upon the circumstances in which it is done ... the most stringent pro-
tection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force . .. the question in every case is whether the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.'
In the absence of empiri'cal evidence that violence in cable television programming poses an imminent threat o( harm to unwilling viewers, there simply is no rational or constitutional justification for the imposition of government controls over such programming. Likewise, in the absence o( clear proof of an immediate threat to the public health or welfare there is no constitutional basis for imposing restrictions on cable television programming of even the most sexually explicit kind. The dilliculty of making the subjective judgments required by such restraints and the inherent arbitrary nature of such judgments should be reason enough for allowing the economic forces of the marketplace to dictate program content. It is, alter all. the "right o( the public to receive suitable access to social, political. aesthetic, moral. and other ideas and experiences which is crucial here. "9 It is established beyond argument that public displays of vio-
lence or sexuality may under some circumstances be regulated by government consistent with the requirements of the First Amendment. It does not follow that that which we choose to see and hear within the privacy of our own homes can be similarly regulated by government without violating the prohibition of the First Amendment. It is these private judgments which the First Amendment guarantees we may reserve to ourselves, to be reached in light of our own tastes and life experiences. As Mr. justice Harlan so aptly put it: "One man's vulgarity is another man's lyric. "10 We know that for years the Federal Communications Commission has exercised some control over the broadcast media. There is a distinct difference, however, between the broadcast media and cable television. The point might be best illustrated with reference to the now famous, or infamous, Seven Dirty Words case." In that case the United States Supreme Court was called upon to review a finding of the FCC that an alternoon broadcast of a satiric monologue by comedian George Carlin, entitled "FiIthy Words", was "indecent," within the meaning of federal statutes, and thus subject to restriction or sanction by the FCC. In u pholding the sanctions imposed by the FCC the Court pointed out that. of all forms of communication, the broadcast media have received the most limited First Amendment protection. The Court considered significant the uniquely pervasive and intrusive nature o( the broadcast media and its unique accessibility to children. Implicit in the Court's reasoning is the (act that the broadcast media have traditionally been held subject to some limited restriction based upon the "scarce resource doctrine." This doctrine holds that it is the nature o( the broadcast media itself which gives rise to both the need and justification (or licensing and reasonable restriction in view of the fact that the airwaves are limited and lack of control and that licensing has in the past resulted in chaos. 12 January 1986/Arkansas Lawyerll9