According to the text of the bill as published on the website for the Tennessee state legislature, the bill “creates a new offense of advertising or promoting the sale, production, distribution, exhibition or display” of obscene materials in the state.
If passed in the state House of Representatives, the Senate Bill 14 (SB14) would also make it unlawful “for the owner or an employee of a television station or cable television company that broadcasts in this state to knowingly accept or solicit for advertising material that is obscene, harmful to minors, or in violation of the above-described federal law, or for such a company or station to actually and knowingly promote or advertise such content.”
In an opinion letter dated May 14, Cooper stated that while some sections of the bill closely track federal law regarding obscene materials and those aspects of the legislation are likely to withstand legal challenge, other sections of the proposed law are more dubious constitutionally.
“Given the extensive federal regulation of the content of programming on television, it is possible that a court could determine that [the bill] is preempted to the extent it applies to public or private television broadcasts,” Cooper wrote in his opinion.
“Moreover, Section 4 of the proposed amendment to [Tennessee state code] is constitutionally suspect under the 1st Amendment because it lacks a ‘safe-harbor’ provision to allow the broadcasting of indecent material during hours when minors are unlikely to be viewing television, does not directly advance the governmental interest in restricting a minor’s access to material harmful to minors, and is more extensive than is necessary to serve that interest.”
The bill’s sponsor, Democratic State Sen. Doug Jackson, told the Associated Press that he was encouraged by Cooper’s evaluation of the bill, and said that the legislation is designed to apply only to material that a jury determines to be obscene.
“If a jury says the product is obscene, what we’re saying is the cable companies can be held responsible,” Jackson said. “Why should they be allowed to make money off a product that they know or should have known is obscene?”
The portion of the bill that Cooper termed “constitutionally suspect,” states in part that it is an offense for “the owner or employee of a public or private television station or the owner or employee of a cable television company… that broadcasts for public viewing or paid subscription viewing in this state to solicit, accept or cause to be solicited or accepted, advertising for any material that is harmful to minors."
According to Jeffrey Douglas, executive director of the Free Speech Coalition, the fact that the bill provides no “safe harbor” provision that allows for the broadcast of material that is deemed inappropriate for minors but fine for adults will likely prove the bill’s undoing in court, should it be signed into law.
“Beyond being bad policy, the bill is indefensible, legally,” Douglas told XBIZ. “These efforts by states to ban speech that they don’t like are facially unconstitutional.”
In addition to the lack of a safe harbor provision, Douglas said it is not clear whether states have the legal authority to regulate cable TV content, at all. Even the Federal Communications Commission does not have clear authority to regulate cable television the way it does broadcast TV, Douglas observed.
“The ability of a state to regulate cable content is highly questionable,” Douglas said. “One can imagine how insane it would be if every state could regulate cable content — every cable company would have to have different programming for every state.”
The bill has little chance of passing in the Tennessee House of Representatives during the current legislative session, according to AP reports, as a companion bill was tabled by a House subcommittee in April, after it received no support from members of either party.
Despite the reservations of legal experts, including his own state’s Attorney General, Jackson said he believes the bill will pass in the state House next year, during the second session of the 105th General Assembly.
