U.S. appeals court rules 1996 CDA cable TV ‘blocking’ provision unconstitutional

Wednesday, December 30, 1998

A three-judge federal panel yesterday unanimously overruled the 1996 law
that required R- and X-rated cable networks to block their signals from
reaching those who do not subscribe to the services.

The ruling came in an appeal by the Playboy cable network of the provision of the Communications Decency Act, part of the 1996 telecommunications reform law.

The law was intended to prevent viewers who do not subscribe to Playboy and other sexually explicit cable channels from seeing images, however fleeting, on channels that were scrambled. The portion of the CDA that was the focus of yesterday's ruling, called Section 505, required cable operators to “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.”

The three-judge panel found the law was too vague and challenged the basic premise of the government's case —and of the law itself — finding the government had presented “no clinical evidence linking child viewing of pornography to psychological harms.” So even if a child viewed the fleeting images of a scrambled sex channel, the government had not demonstrated that it could be harmful.

Playboy attorneys argued that this was technically difficult and expensive, and that the act was discriminatory because it applied only to channels that were primarily devoted to sexual material but not to HBO and other cable channels that feature such programming at certain times of the day or week.

During the trial, Anthony Lynn, president of Playboy Entertainment Group, testified that Playboy could lose up to $25 million in pay-per-view and subscription revenues in the next decade because of the law.

Federal prosecutors argued that over 30 million children could see glimpses of Playboy, Spice and other channels devoted to sexual material. But the judges turned the numbers around and noted two-third of U.S. households do not have any children living in them.

Yesterday's ruling by Judge Jane Roth of the Third Circuit Court of Appeals in Philadelphia and U.S. District Court judges Joseph Farnan and Jerome Simandle reverses a lower court opinion that had upheld the CDA provision and now enables cable systems to carry sexually explicit material as long as each cable operator makes a “good faith” effort to scramble the picture delivered to viewers who do not subscribe.

Internet-related provisions of the CDA were struck down last year by the U.S. Supreme Court as unconstitutional intrusions on First Amendment free speech rights.

The White House and Congress responded by enacting a new law, nicknamed CDA2, which is somewhat more narrowly drafted, but enforcement that law, too, has been postponed pending a hearing
next year on whether it, as its predecessor, is also unconstitutional.

First Amendment scholars had also expressed concern that the cable television provision of the original act, section 505, was troubling for free speech advocates.

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

First Amendment expert and law professor Laurence Winer agreed and said that the law is “terribly vague.”

“One of the problems with the Playboy case is that [section 505] simply ignored the availability of lockboxes, which are an alternative means of addressing the concern of children viewing inappropriate material,” said Winer in an interview earlier this year. “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.”

The federal government must now decide whether to appeal yesterday's ruling and set the stage for another CDA argument before U.S. Supreme Court.