Supreme Court sides with Playboy Television on cable-sex rules

Monday, May 22, 2000

WASHINGTON — Congress violated free-speech rights when it sought to protect children from sex-oriented cable channels like Playboy Television, the Supreme Court ruled today.


The 5-4 decision said Congress went too far when it required cable TV systems to restrict sex-oriented networks to overnight hours if they do not fully scramble their signal for nonsubscribers.


“If television broadcasts can expose children to the real risk of harmful exposure to indecent materials, even in their own home and without parental consent, there is a problem the government can address,” Justice Anthony M. Kennedy wrote for the court. “It must do so, however, in a way consistent with First Amendment principles.


“Here the government has not met the burden the First Amendment imposes,” Kennedy said.


The justices upheld a lower court’s conclusion that less restrictive alternatives are available to address the issue.


Kennedy’s opinion in U.S. v. Playboy Entertainment Group was joined by Justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg.


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


The anti-smut law was enacted as part of the 1996 Telecommunications Act of 1996 following complaints that even though sex-oriented channels are scrambled for nonsubscribers, the picture and sound sometimes get through.


The Playboy Entertainment Group challenged the law as a violation of the Constitution’s First Amendment free-speech protection. The law restricts such programming even to households without children, Playboy’s lawyers contended.


The Clinton administration had argued that without the law, children whose parents did not subscribe to such channels would often be able to see and hear raunchy programming on poorly scrambled networks.


A Florida woman said she found her 7- and 8-year-old children and a playmate one afternoon watching the Spice channel, with scenes of a couple seemingly having sex with the “groans and epithets that go along,” the government said in court papers.


The problem occurs in as many as 39 million homes with 29 million children, a Justice Department lawyer told the court during arguments last November.


The law required cable operators that do not fully scramble or block sex-oriented networks for nonsubscribers to show those “indecent” channels only between 10 p.m. and 6 a.m.


Unlike obscene material, indecent material is constitutionally protected.


Playboy challenged the law in 1996. The Supreme Court let the government begin enforcing the restriction in May 1997. But after a trial on Playboy’s lawsuit, a three-judge federal court in Delaware struck down the law in December 1998.


The court said another section of the law already requires cable operators to completely block any channel for free upon a customer’s request. The court said giving adequate notice of that alternative would be less restrictive than barring such adult-oriented programming in the daytime.


Today, the Supreme Court agreed.


“Basic speech principles are at stake in this case,” Kennedy wrote. “When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the government merely because the law can somehow be described as a burden rather than outright suppression.”


Writing for the dissenters, Breyer said the majority had not made a “realistic assessment of the alternatives. It thereby threatens to leave Congress without power to help the millions of parents who do not want to expose their children to commercial pornography.”


There are several types of technology for scrambling and unscrambling cable TV signals, and the effectiveness often depends on the weather, the quality of the equipment and its installation and maintenance. An increasing number of cable systems use digital technology, which can fully block a network signal.