Skip to content

High court hears challenge on daytime ban of explicit programming

Post categories

  1. Content Restrictions

    NMU         U.S. SUPREME COURT         Broadcasting         Dec 1, 1999    

High court hears challenge on daytime ban of explicit programming

  • Playboy Entertainment told U.S. Supreme Court justices that a 1996 law designed to stop “signal bleed” of scrambled sexually explicit programs unconstitutionally regulates speech based on content.

Playboy Entertainment told U.S. Supreme Court justices that a 1996 law designed to stop “signal bleed” of scrambled sexually explicit programs unconstitutionally regulates speech based on content.

A law conceived in an effort to protect children from sexually explicit television programs is an unconstitutional burden on free speech, Playboy Entertainment argued before the Supreme Court on November 30.

Playboy Entertainment, which had operated a 24-hour cable channel that contained sexually oriented programs, argued before the Court that a law limiting its right to broadcast to eight hours each night was unconstitutional.

In passing section 505 of the Telecommunications Act of 1996, Congress attempted to protect children and other cable television viewers from the purported dangers of sexually explicit programs.

Congress’ main concern — and the reason it enacted the law — was the occurrence of “signal bleed,” where cable television images or sounds are still recognizable even after their signals have been scrambled. To remedy this, the law requires cable operators to make it difficult, if not impossible, for children to view the scrambled, sexually explicit images, either by completely blocking the television signal or airing the programs at night when fewer children would be awake. Because of the difficulty in blocking the signal altogether, cable operators elected to air sexually explicit programs only at night.

Playboy’s attorney, Robert Corn-Revere, said that the law regulates content and, therefore, requires the highest level of judicial scrutiny. The law restricts more speech than is necessary, Corn-Revere said, arguing that other alternatives, such as requiring televisions to be equipped with a devise that allows parents to block access to sexually explicit channels, are more palatable to the First Amendment.

The same laws that allow Playboy to publish a sexually oriented magazine allow it to broadcast adult entertainment on its cable channels, Corn-Revere said. To decide otherwise, Corn-Revere told the Court, would be to disregard its own rulings that have afforded sexually explicit speech that may be indecent, but not obscene, full constitutional protection.

The government’s lawyer, James Feldman, argued that the Court’s prior rulings that let stand a daytime ban on offensive radio programming and cable system prohibition on offensive speech justify the government’s action in this case. Furthermore, Feldman said, other alternatives were not practical because they would be too costly or cumbersome.

The justices peppered both attorneys with questions about whether a different regulatory scheme could, in fact, achieve the same goal but with less of a burden on speech.

The law “imposes the least risk to children,” Feldman said. “It was the least restrictive alternative to the harm Congress saw.”

Corn-Revere described the law as “regulatory overkill.”

A decision is expected before the Court adjourns next summer.

(United States v. Playboy Entertainment Group; Media Counsel: Robert Corn-Revere, Washington, D.C.)


© 1999 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page