Playboy cable network challenging Decency Act provision

Thursday, March 5, 1998

The prospect of stricter regulation of picture scrambling and limited hours for airing sexually explicit programming have the Playboy cable network challenging the federal telecommunications law.

A panel of three federal judges continues to hear testimony in a case, Playboy Entertainment Group, Inc. v. U.S., that will determine the constitutionality of section 505 of the Communications Decency Act entitled “Scrambling of Sexually Explicit Adult Video Service Programming.”

The law requires cable operators and programmers to either completely scramble sexually explicit programming for nonsubscribers or to time-channel the programming into the “safe-harbor” hours of 10 p.m. to 6a.m.—late-night hours that children will supposedly be less likely to watch television.

Specifically, the law requires in pertinent part that “in providing sexually explicit programming or other programming that is indecent on any channel of its service primarily dedicated to a sexually-oriented programming, a multi-channel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it.”

Because the multi-channel video programming distributors, or MPO's as the court refers to them, have had trouble fully scrambling the material, the net effect has been that adult channels can broadcast “sexually explicit” programming only during safe-harbor hours.

The president of Playboy Entertainment Group, Anthony Lynn, testified March 4 that Playboy could lose up to $25 million in pay-per-view and subscription revenues in the next decade because of the law. He told the judges: “The vast majority of my cable affiliates … were forced to roll back to the safe harbor hours” to avoid violating the law.

The trouble for Playboy will be convincing the judges that the financial burdens imposed on the law should sway their constitutional analysis. In November of 1996, the three-judge panel wrote:

“There is undoubtedly a substantial expense involved in complying with subsection (a) [of Section 505]. However, while an economic burden may warrant consideration when weighing the relative harms imposed by a law, economics alone cannot dictate the result where constitutional rights are at issue.”

The case has had a long procedural history. Immediately after Playboy filed suit in 1996, a federal district court judge temporarily prevented enforcement of the law. However, on Nov. 8, 1996, the three-judge panel refused to grant a preliminary injunction and removed the district judge's initial ruling.

Then, Playboy unsuccessfully appealed to the U.S. Supreme Court (Playboy Entertainment Group v. U.S. (96-1034)), which in March of 1997 summarily affirmed the district court decision.

Two months later the U.S. Supreme Court issued its monumental decision striking down two Internet indecency provisions of the Communications Decency Act in Reno v. ACLU. The Court in Reno emphasized “the absence of a definition” of the term indecency, finding “the vagueness of the CDA” to be a “matter of special concern.”

Based on the Reno decision, Playboy filed a motion for the three-judge panel to issue a permanent injunction against the law.

Many First Amendment experts agree with Playboy that Section 505 is an unconstitutionally vague law.

Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said: “Section 505 of the Communications Decency Act is a very unusual law in several respects. Most notably, the provision was slipped into the text of the CDA very late with virtually no discussion whatsoever.”

O'Neil finds the law “very troubling” because the law “imposes classifications without regard to the specific material disseminated by the cable channel. Under the text of the statute, if a non-adult channel produces certain sexually explicit material, it's not covered by the scrambling requirement, but a so-called adult channel is judged by the general nature of the channel rather than the specific program.”

O'Neil also contends the terms “indecent” and “sexually explicit” are “unconstitutionally vague” in part because “sexually explicit” and “indecent” material includes a lot of material that is protected speech under the First Amendment and does not qualify as obscenity or child pornography.”

First Amendment expert and law professor Laurence Winer agrees that the law is “vague.” He said: “The U.S. Supreme Court in Reno v. ACLU acknowledged that this notion of indecency was terribly vague.

“One of the problems with the Playboy case is that the court simply ignored the availability of lockboxes, which are an alternative means of addressing the concern of children viewing inappropriate material. Another problem with the law itself is that it is simply terribly burdensome to cable operators and programmers. While the provision may seem fairly innocuous on its face, it is very burdensome and there are alternative means to address these concerns that are less restrictive of speech.”

A decision is not expected until later this spring or early summer.

—The Associated Press contributed to this report.