Playboy signal-bleed case never should have been a case

Tuesday, May 23, 2000

Perhaps only die-hard First Amendment advocates welcomed yesterday’s Supreme Court ruling that Congress violated our constitutional rights in trying to regulate sex-oriented cable channels, but all of us should be outraged that this silly, costly battle had to be fought in the first place.

And while we are at it, we should suffer just a bit of embarrassment that we had to depend on the foresight and resources of a girlie magazine empire to defend our constitutional liberties from public officials who were sworn to uphold them.

This case — U.S. v. Playboy Entertainment Group — was all about “signal bleed.” That’s when the television screen turns into a lava lamp when you happen onto a cable channel that has been scrambled. Learning that a handful of people across the nation had claimed they could decipher amorous couplings and naked people in those twisting, swirling images, members of Congress rushed to the floor of the House and Senate to insert Section 505 into the Telecommunications Act of 1996.

There were no hearings or debates on this proposal. The possibility that the nation might be awash in sexual indecency brought on by signal bleed was sufficient cause for haste.

So Congress passed and the president signed into law Section 505. The purpose of Section 505 was to require cable operators offering sexually oriented programming (such as the Playboy and Spice channels) to fully scramble or block those channels for non-subscribers or to limit transmission of such programming to 10 p.m. to 6 a.m.

Here is the dismal chain of events that followed.

Section 505 was supposed to go into effect on March 9, 1996. On March 7, Playboy obtained a temporary restraining order and filed suit against the law in federal court. The court then denied Playboy a preliminary injunction and the Supreme Court summarily affirmed that action in 1997. The Federal Communications Commission began enforcing the law on May 18, 1997.

Not having the resources for fully scrambling or blocking, seven in 10 cable operators began “time channeling” the targeted programming. That meant that a significant amount of First Amendment-protected speech was banned for a significant part of the viewing day. “The result was a significant restriction of communication, with a corresponding reduction in Playboy’s revenues,” the lower court wrote in a later ruling.

Playboy finally got to argue its case in March 1988; in December, the three-judge panel ruled that Section 505 indeed violated the First Amendment. The U.S. Justice Department appealed to the Supreme Court. While awaiting a decision on that appeal, the Justice Department lawyers fought and lost two post-trial motions in the federal court.

Finally, more than four years after the law was passed law, the Supreme Court confirmed what everyone knew before it all started:

  • The programming on the cable channels is protected speech under the First Amendment; indeed, both sides stipulated that up front in court papers.
  • Section 505 is content-based regulation of speech.
  • It singles out a particular speaker for different treatment under the law.
  • Less-restrictive measures for accomplishing the government’s goals were available; in fact, that restriction — targeted blocking of channels — already was in the Telecommunications Act, Section 504.
  • Broadcast and cable are different when it comes to limitations on programming.
  • There was no hard evidence of a problem.
  • The government interest in addressing the alleged problem was not sufficiently compelling to justify widespread restrictions of the speech of the television programmers, the cable operators, and adults as well as children.

Despite knowing this, staffers drafted, members of Congress passed, the president signed, and the FCC implemented a law they all knew or should have known was not only unnecessary but also unconstitutional.

Four-plus years and untold amounts of time, effort and resources have been expended on having the Supreme Court tell public officials what they already knew and were sworn to uphold as a key component of their official duties. Worse, speech that is fully protected by the Constitution effectively had been banned for the better part of three years.

For those who say thank goodness for the Supreme Court, keep in mind that Congress is encouraged in this sort of constitutional adventurism by the fact that it is a roll of the dice. The vote on the ruling in this case was 5-4. This ruling came out the same day the court ruled that the prior restraint ordered in the California Supreme Court’s Avis v. Aguilar ruling wasn’t worth reviewing. This ruling came down just weeks after the court ruled in City of Erie v. Pap’s A.M. that the secondary-effects doctrine could be used to justify banning speech, as opposed to zoning it.

So the real outrage in this whole matter is that members of Congress and their staffs, the president and his advisers, the FCC and its staff, and lawyers in the Justice Department will continue to propose, countenance, implement and defend unconstitutional regulation of speech as long as there is a chance that the Supreme Court will reward their pandering and politicking.

At a minimum, all of them — and their supporters — should have to read this passage from Justice Kennedy’s majority opinion in this case as part of their preparation for the next assault on free speech in the name of protecting us from offense:

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.

If we are not outraged by these assaults on our pocketbooks and patience, at the least we should be outraged by these assaults on our constitutional rights.

Paul McMasters may be contacted at