Playboy Channel prevails in challenge of CDA restrictions

THIRD CIRCUIT–A special federal court panel in Wilmington, Del., ruled that the Playboy Channel may offer sexually explicit adult cable television programming 24 hours a day as long as the signal is scrambled to keep nonpaying viewers from seeing it clearly.

In late December, the panel found that a provision of the Communications Decency Act of 1996 restricting adult cable television systems from telecasting when children might be watching violated Playboy’s First Amendment rights.

The panel, made up of two district judges and one appellate judge as specified by the CDA, said that a provision restricting Playboy from airing even scrambled versions of its programming during hours when children were watching due to the possibility of “signal bleed,” the partial reception of video images and audio sounds on a scrambled channel, was unconstitutionally vague.

In February 1996, Playboy filed suit in Wilmington, challenging the constitutionality of the law. The court denied Playboy’s request for a temporary injunction allowing it to air the sexually explicit shows while the case was being decided. In arguing later for a preliminary injunction, the cable channel claimed that the restriction would cost it as much as $25 million in lost sales during the next decade.

The government argued that it has compelling interests in the well-being of the nation’s youth, supporting parental claims of authority in their own household, and ensuring the individual’s right to be left alone in the privacy of his or her home. It further argued that because the number of Playboy subscribers is small, the channel will not suffer from the 10 p.m. to 6 a.m. regulation. A viewer can simply adjust his or her viewing time or tape the program, it said.

The three-judge panel noted that the time restriction covers two- thirds of the day, and that 30-50 percent of all adult programming is viewed by households prior to 10 p.m. Thus, the provision restricts a significant amount of protected speech, the court held.

The court stated that the government did not present any clinical evidence linking viewing of pornography to psychological harm in children. It found that there are alternate ways to stop children from watching such channels besides censoring them. Judge Jane Roth noted that cable businesses “are required to block channels that parents find offensive,” without charge. In the decision she ordered Playboy to make sure the cable systems with which it contracts make subscribers aware of that right. (Playboy Entertainment Group, Inc., v. United States; Counsel: A. Gilchrist Sparks, Dover)