U.S., et al. v. Playboy Entertainment Group (05/22/2000)

By: Alexa Apallas, Medill News Service

Questions presented

Do channels that broadcast sexually explicit content have the right to show their programs at any hour, or must they be confined to times when children are unlikely to be watching? Is broadcasting only during ""safe harbor"" hours the least restrictive way to protect children from being exposed to sexually explicit shows?

Brief

In 1996, Congress enacted the Communications Decency Act. One part of the act, section 505, required that cable operators either completely block or scramble sex-oriented channels or only broadcast those channels during the ""safe-harbor"" hours of 10 p.m. to 6 a.m.--times when young children are less likely to be watching.

The section was passed to protect non-subscribers from ""signal bleed,"" which can occur when channels are not adequately scrambled. Instead of simply seeing ""snow,"" non-subscribers might pick up fuzzy images of premium channels. Even if the picture is blocked, the audio portion might come through clearly.

The Playboy Entertainment Group owns the Playboy Channel and AdulTVision. Both are devoted to sex-oriented programming.

In February 1996, Playboy filed suit challenging section 505 of the Communications Decency Act. In March, Playboy was granted a temporary restraining order, which blocked the enforcement of section 505 until the case could be heard by a three-judge panel. But in November, Playboy's request for a preliminary injunction was denied. The temporary restraining order was lifted, an action affirmed by the Supreme Court.

At that point, cable operators began to comply with section 505. Because it would have been very expensive for operators to upgrade their technology in order to completely correct signal bleed, many of them decided to comply with Congress' order by simply broadcasting sexually explicit channels during the safe harbor hours.

Playboy continued its challenge of section 505, alleging that it was a violation of the 1st Amendment. Because the programming on the Playboy Channel is deemed ""indecent"" rather than ""obscene,"" it is protected by the Constitution. Playboy also claimed that the language of the section was ""unconstitutionally vague"" and that it violated the 5th Amendment's Equal Protection guarantee. Section 505 sought to regulate signal bleed only from networks primarily dedicated to sexually-oriented programming rather than from all networks that might carry some sexually-explicit programs.

A three-judge panel in the U.S. District Court in Delaware heard the case in March 1998 and handed down its decision that December. The judges agreed 3-0 that section 505 violated Playboy's 1st Amendment rights in that section 505 was a content-based restriction on free speech and not the least restrictive way to prevent children from viewing indecent programming.

The three-judge panel suggested that section 504 of the Communications Decency Act was a less-restrictive alternative. That section stated that cable operators had an obligation to block channels at customer request.

""Section 504 provides for voluntary blocking. Those customers who wish to receive a blocking device will have one installed free of charge. However, for those who wish to receive Playboy programming, [cable operators] will be able to broadcast it 24 hours per day. In this way, neither Playboy nor its subscribers will suffer any First Amendment ill-effects,"" Judge Jane Roth wrote in the court's opinion.

The court enjoined the government from enforcing section 505. The government appealed and the U.S. Supreme Court found probable jurisdiction on June 21, 1999.

Almost a year later, on May 22, 2000, a divided Court affirmed, holding that Congress did not find the least restrictve means available when it required cable TV systems to restrict sex-oriented channels to overnight hours if they do not fully scramble their signal for nonsubscribers.

""Basic speech principles are at stake in this case,"" Justice Anthony Kennedy wrote for a 5-4 majority. ""When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the government merely because the law can somehow be described as a burden rather than outright suppression.""

In so holding, the majority concluded that section 505 is a content-based regulation, which also singles out particular programmers for regulation.

Kennedy's opinion was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Clarence Thomas.

Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Stephen Breyer dissented.

Writing for the dissenters, Justice Breyer said the majority had not made a ""realistic assessment of the alternatives. It thereby threatens to leave Congress without power to help the millions of parents who do not want to expose their children to commercial pornography.""