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Supreme Court says adult programming law violates free speech

May 22, 2000
Web posted at: 3:54 p.m. EST (1954 GMT)

By Raju Chebium
CNN Interactive Correspondent

WASHINGTON (CNN) -- The U.S. Supreme Court on Monday struck down as unconstitutional a portion of a federal law that restricts adult programming on cable to the overnight hours if providers do not fully scramble the signal.

The justices ruled 5-4 in favor of Playboy Entertainment Group, saying Congress went too far in trying to protect children from adult-oriented programs by implementing Section 505 of the Telecommunications Act of 1996.

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Section 505 sought to protect kids from "signal bleed," the fuzzy images and sometimes clear audio nonsubscribers get if the signal is not fully blocked. Cable providers either had to fully scramble the signal or show adult programming during the "safe harbor" hours of 10 p.m. to 6 a.m., times when children are most likely asleep.

By striking down Section 505, the Supreme Court potentially opened the floodgates to a deluge of sexually explicit programming on cable. But an industry representative downplayed that possibility, saying the amount of sexual content will probably remain unchanged from today because of scant public demand.

Justice Kennedy: Government went too far

"If television broadcasts can expose children to the real risk of harmful exposure to indecent materials, even in their own home and without parental consent, there is a problem the Government can address. It must do so, however, in a way consistent with First Amendment principles. Here the Government has not met the burden the First Amendment imposes," Justice Anthony Kennedy wrote for the majority.

"It is rare that a regulation restricting speech because of its content will ever be permissible" Kennedy wrote. "Indeed, were we to give the Government the benefit of the doubt when it attempted to restrict speech, we would risk leaving regulations in place that sought to shape our unique personalities or to silence dissenting ideas."

Under Section 505, "sanctionable signal bleed can include instances as fleeting as an image appearing on a screen for just a few seconds. The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this," he wrote.

Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg agreed with Kennedy.

The dissent: Government was justified

Chief Justice William Rehnquist and Justices Stephen Breyer, Antonin Scalia and Sandra Day O'Connor disagreed. Breyer wrote in the minority opinion that Section 505 is narrowly written and is necessary to protect children from sexual images.

"Section 505 raises the cost of adult channel broadcasting. In doing so, it restricts, but does not ban adult speech. Adults may continue to watch adult channels, though less conveniently, by watching at night, recording programs with a VCR, or by subscribing to digital cable with better blocking systems," Breyer wrote.

"The Government's justification for imposing this restriction -- limiting the access of children to channels that broadcast virtually 100 percent `sexually explicit' material -- is 'compelling.' The record shows no similarly effective, less restrictive alternative," he wrote.

Objections to the ruling

Janet LaRue, an attorney for the conservative Family Research Council in Washington, said the ruling leaves consumers with no choice but to call their cable operators and demand that signal-blocking devices be installed.

LaRue, who filed a legal brief in support of the government's position on the case, contended that Section 505 did not violate the free speech rights because adults who wished to watch sexually-explicit programming always had the choice to do so simply by subscribing to the services.

"There's going to be more of this sexually-explict programming," she said. "The signal bleed is going to get worse." LaRue added that signal bleed is free advertising to entice kids and charged cable operators with trying to "hook the next generation of customers."

But First Amendment expert David L. Hudson Jr., an attorney with the First Amendment Center at Vanderbilt University, lauded the justices for preserving free speech. The decision is a "vindication of free speech rights," Hudson said.

He said it is illegal for the government to single out one type of speech simply because the government disagrees with the content. He also said Section 505 was hypocritical because cable providers like Home Box Office could offer programs with a strong sexual content but were not required to scramble the signal, whereas those providers whose primary business was providing adult programming had to comply.

Hudson noted that nonsubscribers who get signal bleed do have a way to block under a different provision, Section 504, of the Telecommunications Act. That section says that upon receiving call from any consumer objecting to signal bleed, the cable provider must block the signal free of charge.

No floodgate effect from the ruling

David Beckwith, a spokesman for the National Cable Television Association in Washington, said the ruling would not lead to more skin on cable as some parents might fear.

"I'm almost sure there will be no change in current programming. … There is no great demand for (adult programming) and no great desire on the part of cable operators to provide it," Beckwith said.

He said viewers demand sports, ethnic, children's and family programming much more than adult programming.

Donald Jones, who teaches constitutional law at the University of Miami, said the case legally was not all that significant because it dealt more with whether Congress could require the cable industry to implement technology to prevent signal bleed.

He also predicted, for reasons other than economics, that Monday's decision will not lead to an explosion of sexual content on cable.

"I still don't think our society is as uninhibited as Playboy is. I think Playboy represents a fringe … represents the exception," he said. "America is still the place of baseball, apple pie and basketball playoffs."

Playboy's First Amendment argument

In U.S. v. Playboy Entertainment Group, Inc., Playboy argued that the government could not regulate adult programming because it was a form of free speech protected by the First Amendment. Playboy provides some 99 percent of the adult programming on cable today.

Playboy sued the government in February 1996 in Delaware federal court, asking the court to block the enforcement of Section 505.

After refusing Playboy's request to "fast-track" the case directly to the U.S. Supreme Court, a three-judge panel of the Delaware federal court heard the case in March 1998. In December of that year, the court ruled in Playboy's favor, finding Section 505 violates free speech.

The government appealed to the Supreme Court in 1999, and the court heard oral arguments in the case on Nov. 30.

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