CDA limits on cable shows unconstitutional

From the Summer 2000 issue of The News Media & The Law, page .

The Supreme Court’s 5-4 decision to strike down a restrictive section of the Communications Decency Act, part of the Telecommunications Act of 1996, reaffirms the constitutional right to free speech even if the speech in question is disfavored by the majority.

The Court held that when the government restricts speech, it bears the burden of proving the constitutionality of its actions, and that only the least speech-restrictive means of achieving the government’s goal can be used.

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Section 505 of the Communications Decency Act requires cable operators to either fully scramble or fully block channels whose programming was primarily of sexual orientation, or to limit their transmission to the “safe-harbor” hours between 10 p.m. and 6 a.m. when children are unlikely to be in the viewing audience. Most scrambling of cable channels results in “signal bleed” that often makes portions of the images visible.

Adult pay channels like Spice and The Playboy Channel were forced off the air for two-thirds of the day because cable operators didn’t have the technology or money to fully scramble or block the programs. The move to the safe-harbor hours sent Playboy’s buy rates down 33 percent, according to the company.

On February 26, 1996, Playboy sought a preliminary injunction against the government’s enforcement of the law. Playboy’s action was consolidated with one brought by Graff Pay-Per-View, and under terms of the CDA, a special three-judge panel was named by the U.S. Court of Appeals in Wilmington, Del., (3rd Cir.) to hear the case. Playboy’s motion for a temporary restraining order on Section 505 was granted until the hearing.

The panel denied Playboy’s application for a preliminary injunction on Nov. 9, 1996, and lifted the temporary restraining order. At this point Graff Pay-Per-View withdrew from the litigation.

Playboy pursued the case, hoping to still win a permanent injunction after hearings. Playboy argued that Section 505 infringed upon the free speech protections provided by the First Amendment, that the language of Section 505 was unconstitutionally vague, and that Section 505 violated the Equal Protection guarantee of the Fifth Amendment by singling out networks primarily dedicated to sexually oriented programming while not regulating signal bleed of other networks who transmit sexually oriented programming.

Playboy argued that as a content-based restriction on speech, the statute must pass “strict scrutiny,” which would require that it be the least-restrictive means of achieving a compelling governmental interest.

The government argued that its constitutional burden must be lower than the “strict scrutiny” standard because Section 505 is content-neutral and attacks the secondary effects of exposure to sexually explicit material. The government also argued that its interest in protecting children from exposure to sexually explicit material, protecting parents’ right to inculcate morals and beliefs in their children, and the need to protect households from unwanted communications demonstrated justification of the law.

The three-judge panel found in February 1999 that Section 505 was a content-based restriction on speech because it only applies to the transmission of sexually explicit adult programming or other indecent programming.

The panel found that the government had presented no evidence of psychological harm incurred by children exposed to signal bleed, and that mere articulation of a theoretical harm does not warrant protection.

The panel agreed with Playboy that Section 505 was not the least restrictive means of addressing the issue so long as cable operators provide adequate notice to their subscribers about signal blocking devices, as stated in Section 504, that would prevent signal bleed and therefore serve the government’s interests while being less restrictive on speech than Section 505.

The government appealed the three-judge panel’s finding to the U.S. Supreme Court, which ruled in May 2000 that Section 505 of the CDA is too restrictive despite the government’s compelling public interest to protect children from seeing and hearing sexually explicit material.

Section 505 is a content-based restriction because it applies only to the signal bleed occurring during transmission of sexually explicit programming on channels primarily dedicated to sexually oriented programming, the court found. The burden falls upon the government to demonstrate that it has a compelling interest when implementing restrictions, and that the restrictions are carefully tailored to achieve the government’s goal so as not to curtail free speech.

“Even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative,” Justice Anthony Kennedy wrote in the Court’s opinion.

The less restrictive alternative that the Court referred to was Section 504 of the CDA which requires cable operators, upon request by a subscriber, to fully block or fully scramble any channel the subscriber doesn’t want.

“Simply put, targeted blocking is less restrictive than banning, and the government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests,” Kennedy wrote. “A publicized Section 504 would provide parents the information needed to engage in active supervision.”

Kennedy, joined by Justices Ruth Ginsberg, David Souter, John Paul Stevens and Clarence Thomas, added, “It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and society. It is through speech that out personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.”

Justice Stephen Breyer, who was joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Antonin Scalia, wrote in a dissenting opinion that the Court’s finding of Section 504 as an “adequate alternative when there are none, reduces Congress’ protective power to the vanishing point. That is not what the First Amendment demands.”

Stevens also wrote a concurring opinion.

“The First Amendment assumes that, as a general matter, information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed and that the best means to that end is to open the channels of communication rather than to close them,” Stevens wrote.