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Supreme Court strikes down restrictive cable law

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  1. Content Restrictions

    NMU         WASHINGTON, D.C.         Broadcasting         May 23, 2000    

Supreme Court strikes down restrictive cable law

  • Playboy Entertainment won a ruling that a 1996 sexually oriented cable channel restriction unconstitutionally violates its First Amendment rights.

A split U.S. Supreme Court ruled May 22 that a 1996 federal law restricting the way sexually oriented cable channels can provide their programming is an unconstitutional violation of the First Amendment. The 5-4 decision affirmed a federal District Court decision in Delaware.

Section 505 of the Telecommunications Act of 1996 required cable operators who provide primarily sexually-oriented programs to either confine their programming to late night “safe harbor” hours or to provide a technically difficult full scramble or block of signals to all but paying customers.

Fully blocking against “signal bleed,” which allows an occasional discernible image or periods of discernible sound despite conventional scrambling systems, is so economically prohibitive that few providers have any practical choice except to opt for the late night programming.

The court said the extreme measure called for by the act is unnecessary. It accepted the finding of a three-judge panel of the District Court that a different section of the same act would allow parents adequate control of the availability of sexually oriented material to their children. Section 504 allows individual households to demand that cable operators block undesired channels on request. Parents can exercise that provision and keep indecent material from their children if they choose to do so, the court ruled.

Siding with Playboy Entertainment Group, Inc., the high court reiterated that under the First Amendment, any law which restricts content can only be imposed by the government to serve a compelling government interest, and then only in the least restrictive manner to achieve that interest.

Justice William Kennedy, writing for the majority, said the law regulates speech because of its content because it targets “sexually explicit adult programming or other programming that is indecent.” It also singled out particular programmers, he said, noting that one sponsor, Sen. Dianne Feinstein (D-Calif.), had stated it would apply to channels “such as the Playboy and Spice channels,” both of which get programming from Playboy Entertainment Group.

“The speech here is protected speech,” Kennedy wrote. No one suggests that the government must be indifferent to unwanted, indecent speech that comes into the home without parental consent, he said, but the objective of shielding children does not support a blanket ban if the protection can be accomplished with a less restrictive alternative, he said.

Justice Stephen Breyer wrote for three dissenting justices that there were no “adequate alternatives” to fully protect children. He also distinguished Section 505 as a law that burdens speech by limiting it to late hours or requiring expensive scrambling technology from a law that prohibits speech.

Justice Scalia wrote an additional dissent. Quoting graphic language from Playboy Entertainment’s own advertising of its programs, he reiterated his concurrence and dissent in another case, writing that a business that offers hardcore sexual material as a constant and intentional objective of its business, and that promotes it as such, “finds no sanctuary in the First Amendment.”

(U.S. v. Playboy Entertainment Channel; Media Attorney: Robert Corn-Revere, Washington, D.C.)

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