Supreme Court brings ‘clarity’ to laws governing cable TV

Tuesday, May 23, 2000

What began as a seemingly minor dispute over a technical cable-television problem known as “signal bleed” ended yesterday with a major Supreme Court ruling that gave the industry its broadest protection yet under the First Amendment.

Apparently for the first time, the court — on a 5-4 vote — struck down a federal law regulating cable television by applying a “strict scrutiny” standard — the highest hurdle a law can be forced to surmount under the Supreme Court’s First Amendment jurisprudence.

“The decision is great for the clarity it brings to this area of the law,” said Robert Corn-Revere, lawyer for Playboy Entertainment Group. “We have five solid votes for this view of the relationship between cable television and the First Amendment.”

Under the strict-scrutiny standard adopted yesterday for cable television, most laws fall, and the one at issue in U.S. v. Playboy Entertainment Group fell too. The law was a hastily drafted provision of the Telecommunications Act of 1996, aimed at combating the signal bleed problem — the occasional ability of cable subscribers to receive fuzzy audio or video of unwanted adult cable programs on adjacent channels. The law required cable operators either to scramble the adult-network signals more completely to eliminate the bleed, or if that was not possible, to confine that programming to between 10 p.m. and 6 a.m.

Playboy Entertainment and other adult programmers claimed the law violated their free expression rights and severely restricted public access to material that was protected by the First Amendment. A federal court in Delaware agreed, ruling that the law was a content-based restriction that violated the First Amendment.

Justice Anthony Kennedy, writing for the slim majority, affirmed that decision. “Not only does (the law) single out particular programming content for regulation, it also singles out particular programmers,” Kennedy wrote.

Kennedy noted that both sides in the case agreed that the program material at issue was not obscene — which would have deprived it of First Amendment protection — but merely indecent, which the court has said is protected. “Even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative,” Kennedy wrote.

In this case, Kennedy said, a less restrictive alternative does exist — another provision of the law that allowed individual cable subscribers to obtain devices from cable operators that would block the unwanted signals house-by-house.

“If a less restrictive means is available for the government to achieve its goals, the government must use it,” Kennedy wrote.

The government claimed the alternative was ineffective, but Kennedy said the government needed to prove that assertion by “more than anecdote and supposition.”

Kennedy added that “basic speech principles are at stake in this case.” While exposing children to unauthorized broadcasts of indecent materials is a problem the government can address, Kennedy said, “It must do so, however, in a way consistent with First Amendment principles.”

The court in the past has struggled with the question of where cable television fits on the spectrum of First Amendment protection — is it more like newspapers or the Internet, which enjoy the most protection, or is it more like broadcast television which has been heavily regulated in part to keep signals from overlapping? Apparently because individual cable subscribers, unlike over-the-air viewers, can choose “targeted blocking” of unwanted channels, the court opted for “strict scrutiny” — placing cable television at the newspaper end of the spectrum.

Kennedy was joined in the majority by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg.

Thomas offered a concurring opinion that suggested he was somewhat uncomfortable with the decision. Thomas said that in his view, at least some of the material broadcast on the Playboy and Spice Channels was obscene and could be banned outright by the government. (He noted that video copies of the unscrambled programming, as well as signal bleed of the programming, had been “lodged with the court.”)

However, Thomas said that since both sides had agreed the material was not obscene, he had to go along with that conclusion, which led him to agree with Kennedy’s opinion.

Dissenting were Chief Justice William Rehnquist and Justices Antonin Scalia, Stephen Breyer and Sandra Day O’Connor.

Breyer wrote that the government had a “compelling interest” in blocking children’s access to sexually explicit material, and contended that the majority was “flat out wrong” in deciding that the government had failed to prove the seriousness of the signal-bleed problem. Breyer also asserted that the individual, targeted blocking of the signals was clearly not an effective alternative to the law at issue.

Playboy officials were pleased with the decision, which could encourage cable operators to resume broadcast of adult channels. Many had dropped the channels, not wanting to devote channel space to programming that was restricted to late-night hours. Playboy CEO Christie Hefner said of the law that was struck down, “We felt it was an intrusion on individual choice by the federal government.”

Corn-Revere said the ruling could also have impact on future regulation of the Internet, by forcing government to test less restrictive ways of achieving the goals of its regulations.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.