High court examines restrictions on adult cable channels

Wednesday, December 1, 1999

The Supreme Court heard arguments yesterday in a case that could determine where cable television belongs in the spectrum of protection under the First Amendment.

Is it more like television and radio, which are subject to substantial regulation? Or is it more like the Internet or the printed press, where the multiplicity of voices makes the medium freer from restriction?

If answering those questions was the court’s goal yesterday, it was difficult to discern how the justices would answer them, or whether the technicalities of the case might divert them from the quest completely.

At issue in the case U.S. v. Playboy Entertainment Group was a section of the Telecommunications Act of 1996 aimed at shielding children from unwanted adult cable channel signals. It requires cable operators to completely scramble the signal of “sexually explicit” channels so that non-subscribers cannot pick up the fuzzy audio or video signals of those channels — a technical problem known as “signal bleed.”

Parents testified before Congress about finding their children watching highly explicit adult programming in this way. If the operators cannot or do not want to scramble the signals completely, the law says they must limit the channel broadcasts to the “safe harbor” period of 10 p.m. to 6 a.m.

While posing a seemingly technical issue, the case as it was framed before the court raised classic First Amendment issues of whether the restrictions are content-based and overly broad, and what standard of review should be used by the court to assess them. Strict scrutiny is the standard the cable industry seeks, because most regulations fail to meet it.

“Not quite strict scrutiny” is what Justice Department lawyer James Feldman urged yesterday, arguing that “some deference should be given” to the government because the aim of the law is to protect children. The court has made special exceptions in its First Amendment jurisprudence in the past in the interest of children. On television and radio, restrictions on indecent programming have been justified for that reason.

But several justices seemed skeptical about making that kind of exception without knowing more about the nature of the problem the law was aimed at solving. The law was struck down by a federal judge in Delaware based on a “facial challenge,” meaning that no record was developed about how it was enforced.

“Does the record give us any basis to know the extent of the problem?” asked Justice David Souter. Feldman replied that as many as 39 million homes could receive the unscrambled signal bleed, but he could offer no data on how much of it is actually viewed. “It is a significant problem,” he added.

The justices also wanted to explore alternative ways of solving the problem, also an important part of the First Amendment equation. If a less restrictive means of achieving the government’s purpose exists, the court will often opt for it.

A parallel solution is provided by the law, requiring cable operators to offer subscribers the ability to ask for a lockout of the unwanted signals. “Any parent who wants to stop it can stop it for the price of a phone call,” Justice Ruth Bader Ginsburg noted.

Feldman insisted that option was an ineffective and costly solution that the cable operators might end up fighting in a later case, though the cable industry currently favors it as an alternative to the blanket law.

Robert Corn-Revere, representing Playboy, told the court, “We ought to try it first before we restrict protected speech.” Justice David Souter asked whether that was “utopian,” noting “there are indifferent parents” who won’t exercise the option to lock out the signal bleed.

Getting unusually practical in their questioning, several justices asked how the lockout would work, and whether subscribers would have to wait at home for a cable service person to come and tinker with their televisions. Corn-Revere said technological advances would allow subscribers to make the changes themselves. He also noted that 80% of the television sets currently on the market could lock out the signal bleed without any tinkering.

Corn-Revere also argued that the safe-harbor requirements had substantially harmed the ability of adult cable channels to survive, even though their programming falls short of obscenity and should be protected by the First Amendment. Forcing cable operators to scramble all programming on a particular channel, or else to confine it to late-night hours, Corn-Revere said, amounted to “regulatory overkill.”

But the child-protection argument seemed to weigh heavily on some justices. Noting that many children come home from school to empty houses or go to other houses, “unlike the world I grew up in,” Justice Stephen Breyer said the law was addressing a real and significant problem. “Parents don’t want this,” he said.

A decision in the case could come anytime before the court’s term ends next summer.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.