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Supreme Court says adult programming restrictions on cable are unconstitutional


May 22, 2000
Web posted at: 1:59 p.m. EST (1759 GMT)

WASHINGTON (CNN) -- The U.S. Supreme Court ruled Monday that a federal law that restricts adult programming to the overnight hours if cable providers cannot fully scramble the signal violates the First Amendment.

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

Burden of Proof

Adult programming restrictions on cable are unconstitutional
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Supreme Court opinion on United States, et al. v. Playboy Entertainment Group (Findlaw)
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That portion of the law sought to protect children from "signal bleed," the fuzzy images and sometimes clear audio nonsubscribers can receive. Cable providers either had to fully scramble the images and sound or show explicit programs only during the overnight hours, when children most likely are asleep.

"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. 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," Kennedy wrote.

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

Chief Justice William Rehnquist and Justices Stephen Breyer, Antonin Scalia and Sandra Day O'Connor disagreed, saying Section 505 is narrowly written and is necessary to protect children from explicit sex on cable.

"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 for the minority.

"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.

Scalia wrote that the government is within its rights to take the less drastic step of dictating how, and during what times, (sexually explicit programming) may occur."

"It is not only children who can be protected from occasional uninvited exposure to what appellee calls 'adult-oriented programming'; we can all be," he wrote.

The law that was challenged and 'signal bleed'

The central issue in the case, U.S. v. Playboy Entertainment Group, Inc., was whether Section 505 of the Telecommunications Act violates free speech rights.

That section requires cable operators to "fully scramble" or find some other means to block the video and audio portions of sexually explicit programming. When the programming is fully scrambled, non-subscribers will see "snow" -- no picture or audio, just millions of black dots on the empty white screen.

To avoid the signal bleed problem, cable operators were given the choice of showing sexually explicit programming during the "safe harbor" hours -- 10 p.m. to 6 a.m.

To avoid incurring the high cost of technology to prevent signal bleed, many cable operators chose the safe harbor option.

Being able to show sexually explicit programming at all hours would boost the operators' revenue. So the case was also about money in addition to being a First Amendment issue.

Stevens wrote that the government failed to narrowly define signal bleed.

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.

Playboy's arguments

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 the First Amendment.

"The court ruled that the law was content-based because it restricted only sexually explicit adult programming," David Hudson, an attorney with the First Amendment Center at Vanderbilt University, wrote in an analysis of the case for the American Bar Association.

"Under First Amendment jurisprudence, content-based laws are presumptively unconstitutional and can be justified only if the governmental regulation advances a compelling interest in the least restrictive means available."

Hudson went on to say that the Delaware court found that Section 505 was too narrowly written and could do more than just protect children, which was the government's intent in adopting that provision on the first place.

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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