It's a familiar sight to any channel-surfing cable television subscriber: the fuzzy video and often clear audio from adult cable channels not subscribed to.
It is called "signal bleed," and when Congress in 1996 tried to force cable channels to stop it from happening, they sued, claiming it was a violation of their First Amendment rights. The Supreme Court yesterday agreed to resolve the dispute in the case titled U.S. v. Playboy Entertainment Group.
To critics of the cable channels, the First Amendment has little to do with the dispute over Section 505 of the Telecommunications Act of 1996. The law requires adult channels to provide full blocking or scrambling of their signals so that non-subscribers cannot see or hear them or, in the alternative, to confine their broadcasts to the "safe haven" period from 10 p.m. to 6 a.m.
"It really isn't a First Amendment issue," says Tony Snesko, a former Poway, Calif., official who lobbied Congress for passage of Section 505. Following up on parental complaints five years ago, Snesko videotaped a partly scrambled "signal bleed" Spice Channel show from his cable service in San Diego county. It showed an unmistakable scene of oral sex, Snesko says. "You could see absolutely everything, except on a slant," he recalls.
Snesko personally delivered a copy of the videotape to every member of Congress. Other parents also told members of Congress of finding their children transfixed by adult-channel signal bleeds, and the law passed overwhelmingly.
But cable channels sued under the First Amendment and convinced a three-judge panel in Delaware to strike the law down, ruling that Congress had swept too broadly in trying to solve the problem. Because the regulation involved issues of speech, the court panel said, Congress was obliged to use the "least restrictive" means of preventing children from seeing adult-channel signals. Since two-thirds of households have no children in them, a law that required scrambling for all households was overbroad, the cable channels had said.
They also argued that complete scrambling is costly, and the alternative of broadcasting only at late-night hours cuts revenue. In addition, cable companies pointed to Section 504 of the same law, which requires that cable companies provide blocking equipment to any subscriber who requests it. That kind of approach, targeted to homes that want to block the signals, is more respectful of First Amendment interests, they argue.
"The constitutional solution is individual empowerment," says Robert Corn-Revere, lead lawyer for Playboy. "Any household can solve this problem."
Corn-Revere also said newer technology is providing solutions as well. Newer sets and cable boxes now either skip over or display a blue screen on channels that a viewer does not subscribe to. And when the industry converts to digital transmission by the year 2006, the problem of signal bleed will disappear altogether.
Snesko says the cable channels could obey the disputed law without any extra expense, but don't want to. They allow the signal bleed in order to entice new subscribers, he contends.
"And even if it is too expensive to scramble, they need to do it, because they are putting pornography in front of our children." He adds, "The onus should not be on the parents to opt out."
As the case reaches the high court, the technological issues of signal blocking will likely not be as important as the standard of review courts must apply when scrutinizing laws like Section 505. The Clinton administration, which defends the law, said the lower court's standard was "deeply flawed," and that a lower level of scrutiny is appropriate for reviewing indecency on cable television. It argues that the same standard that was allowed to ban indecent programming on broadcast television and radio should also be used to allow the ban on "signal bleed" of cable signals.
The court will hear arguments in the case this fall, with a decision unlikely before next year.
Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.