Winning side in Playboy case: Court never even used strongest argument

Thursday, December 31, 1998

Lawyers for the winning side in Tuesday's ruling that struck down restrictions on sexually oriented cable television networks were savoring their victory — and noting the federal appeals court found the law unconstitutional without relying on their strongest arguments.

“The court addressed the most obvious of the constitutional issues in this case, and that is that it does not represent the least restrictive means of trying to serve the government's objective,” Robert Corn-Revere said after the ruling.

“The court, because it resolved the issue on the least restrictive means question, found it unnecessary to address the other issues in the case, such as the question of whether or not section 505 and the indecency standard there was unconstitutionally vague and whether or not it represented an equal protection problem.”

Corn-Revere, a partner at Hogan and Hartson, noted the vagueness argument carried the day in Reno v. ACLU , providing a foundation for the successful challenge of the Internet restrictions contained in the CDA bill, restrictions which last year were ruled unconstitutional by the U.S. Supreme Court.

“I really think that the vagueness argument was one of our stronger arguments,” he said, “particularly in the wake of Reno v. ACLU, in which we also participated and made the same vagueness argument.”

Corn-Revere said he found the ruling especially gratifying because the same three judges had turned down his side's earlier petitions.

“It is particularly nice with the same three-judge panel that had turned down our preliminary injunction request now granting the permanent injunction and finding that section 505 is unconstitutional.”

Asked whether he expected the government to appeal its loss, Corn-Revere said he was just pleased with the ruling and would see what happened next year.

“We are delighted with the outcome and are just waiting to see what happens next.”