WASHINGTON (BP)–Congress should be able to require cable television operators, not parents, to bear the burden of blocking out programming on sexually explicit channels not subscribed to by families, the Justice Department told the Supreme Court Nov. 30.
The justices heard oral arguments in a case involving a 1996 congressional measure requiring cable companies to scramble totally the transmissions on pornographic channels, such as Playboy, that have not been ordered by subscribers. The law was passed to deal with a problem known as “signal bleed,” in which video and audio portions of sexually explicit programming appear in homes where that premium channel has not been subscribed to. Under the law, cable companies must limit the transmission of such channels to the period between 10 p.m. and 6 a.m. if they do not prevent “signal bleed.”
A Delaware federal court overturned the law when it was challenged by Playboy Entertainment Group, which has a cable channel with sexually explicit programming. Under the measure, a direct appeal to the Supreme Court is provided.
James Feldman, assistant to the solicitor general at the Justice Department, told the high court the government should be required to show it has a compelling interest in such a law, but “some deference” should be given to Congress’ choice of alternatives in preventing “signal bleed.”
The problem is the “availability of this material in people’s homes who did not subscribe to it” and did not know they were receiving it, Feldman told the justices.
Robert Corn-Revere, who argued for Playboy Entertainment, called the law a “case of regulatory overkill” and an expansion of “government authority over protected speech.”
He argued parents could block the partially scrambled reception of specific channels through technology in 80 percent of the televisions on the market or by making a request of the cable operator. Corn-Revere later told reporters “that may require a phone call” by parents but that was not too much of a burden for them.
Feldman disagreed, saying the material should be in a home only if it were requested, not because of a parent’s failure to act. In addition, he said the government has a “social interest in the upbringing of children.” Congress decided the programming was harmful to children, Feldman said.
Associate Justice Stephen Breyer said during the arguments the world in which he grew up was much different than today’s, where many children are home by themselves after school. In such a world, “opt-in vs. opt-out makes an enormous difference,” Breyer told Corn-Revere.
Associate Justice Ruth Bader Ginsburg questioned whether the government should be regarded as some kind of “super-parent.”
Associate Justice Antonin Scalia asked Feldman if some of the material would be considered obscenity, thereby making it prosecutable under other laws. He could not imagine some of the depictions of “signal bleed” described in the government’s brief not being obscene, Scalia said.
Feldman told justices the audio portion of sexually explicit channels usually is unscrambled on most cable systems even when the video transmission is partially scrambled.
Corn-Revere disputed that assertion, saying the audio, as well as the video, fades in and out.
Afterward, Corn-Revere told reporters everyone “would be happier if the ‘signal bleed’ problem could go away, and eventually it will.”
A supporter of the government’s case, however, said all other cable channels requiring extra fees are totally scrambled. Only the “sex channels” cannot be scrambled, he said.
“I think the motivation behind ‘signal bleed’ is marketing,” said Bruce Taylor, president of the National Law Center for Children and Families. It is “too much of a coincidence that only” the sexually explicit channels cannot scramble their transmission, he said.
In a written release later, Taylor said, “‘Signal bleed’ is not protected speech but instead is a harmful secondary effect of the transmission of the cable signal.”
The justices “must decide whether to uphold a good law that protects children and nonconsenting adults from offensive and harmful material or whether they will give cable pornographers a right to invade the privacy of the home for the purposes of advertising their indecent and at times obscene programming to fathers and the children, whom they see as their next generation of customers,” he said.
Taylor told reporters he was disappointed with the Justice Department’s failure to “introduce more evidence of the extent of the ‘signal bleed’ problem.”
The National Law Center filed a friend-of-the-court brief supporting the government’s position. Among the organizations signing on were the Family Research Council, Concerned Women for America and Morality in Media.
Among those filing briefs in support of Playboy were the National Cable Television Association, Motion Picture Association of America, Recording Industry Association of America, Video Software Dealers Association and a group of sexuality researchers and therapists.
Playboy sought to block enforcement of the law in 1996. Although a three-judge panel of the federal court declined to issue an injunction against the measure’s enforcement, last December it overturned the law, ruling it was content-based and therefore a violation of the First Amendment.
The measure in question was part of the Communications Decency Act, most of which was struck down by the Supreme Court in 1997. The portion of CDA rejected by the high court two years ago prohibited the distribution through on-line computer services of “obscene or indecent” material to any person under 18. It also banned the depiction or description of “sexual or excretory activities or organs” that is “patently offensive,” according to community standards.
The high court said the ban violated “the First Amendment right of adults to make and obtain this speech.” The CDA regulated a variety of zones on the Internet, from news groups to chat rooms to e-mail to the World Wide Web, which the high court found too expansive.
A decision in United States v. Playboy Entertainment is expected before the end of the session next summer.
