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Scrambling sex channels not required of cable operators, Supreme Court rules

WASHINGTON (BP)–The U.S. Supreme Court ruled May 22 Congress violated the First Amendment when it required cable television operators to block out or limit the transmission of programming on sexually explicit channels, again rejecting legislative attempts to protect minors from pornographic material.

The 5-4 decision, which was marked by an atypical arrangement of justices on both sides, upheld a lower-court ruling against a provision in the 1996 Communications Decency Act requiring cable companies to scramble totally the transmissions on pornographic channels, such as the Playboy Channel, 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. If the cable companies do not prevent “signal bleed,” they are required by the regulations implementing the law to limit the transmission of such channels to the period between 10 p.m. and 6 a.m.

In its opinion, the court affirmed a Delaware federal court’s ruling the measure was a content-based restriction on speech. The justices ruled the lower court was correct in deciding a less-restrictive option in the same law was constitutional. That measure required cable operators to scramble or block fully any channel when requested to do so by subscribers.

“This case involves speech alone; and 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,” Associate Justice Anthony Kennedy wrote in the court’s opinion.

“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. 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.”

The high court said the government did not prove the alternative measure providing for parent-initiated blocking of offensive channels would be ineffective.

“Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech,” Kennedy wrote. “The government’s argument stems from the idea that parents do not know their children are viewing the material on a scale or frequency to cause concern, or if so, that parents do not want to take affirmative steps to block it and their decisions are to be superseded. The assumptions have not been established … .”

Neither side argued the content in question was obscene by legal standards. A majority of cable operators had chosen to limit transmission to the late-night slot, “which silences the protected speech for two-thirds of the day in every home in a cable service area, regardless of the presence or likely presence of children or of the wishes of the viewers,” Kennedy wrote.

In a surprising development, Associate Justice Stephen Breyer, often considered a liberal vote on the court, led the dissent and described the majority’s depiction of the measure as “prohibit[ing] … speech” an “exaggeration.” He also called “flat-out wrong” the majority’s conclusion the government failed to show the seriousness of sexually explicit channels being received in homes with children.

The government “proved both the existence of a serious problem and the comparative ineffectiveness of [the parental opt-out] in resolving that problem,” Breyer wrote. The court “thereby threatens to leave Congress without power to help the millions of parents who do not want to expose their children to commercial pornography — but will remain ill served by the court’s chosen remedy.”

Citing a series of high-court opinions, Breyer said they clarify the government “has a compelling interest in helping parents by preventing minors from accessing sexually explicit materials in the absence of parental supervision.

“By finding ‘adequate alternatives’ where there are none, the court reduces Congress’ protective power to the vanishing point. That is not what the First Amendment demands,” Breyer wrote.

Joining Breyer in dissent were Chief Justice William Rehnquist and Associate Justices Sandra Day O’Connor and Antonin Scalia.

Clarence Thomas, who is generally considered, with Scalia, one of the two most conservative members of the court, voted with the majority. Others in the majority were Associate Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.

Pro-family and anti-pornography organizations criticized the decision.

The ruling “places the profits of cable pornographers ahead of protecting children and unconsenting adults,” said Chuck Donovan, executive vice president of Family Research Council, in a written release. “The majority of the court has placed the burden on cable subscribers rather than cable programmers to prevent unwanted sexually explicit programming from bleeding through into the home.”

Robert Peters, president of Morality in Media, said the majority decided “the same constitutional standard applies, regardless of whether the government is attempting to regulate political discussion and debate on a public street or attempting to protect children from hard-core depictions of sex that intrude uninvitedly into the home.”

“Today a majority of the court adopted the legal and moral reasoning of the porn industry and ACLU and, in the process, pushed this nation one step closer to the brink of moral anarchy,” Peters said in a written statement.

The Playboy Entertainment Group, which operates cable channels with sexually explicit programming, brought the challenge that was upheld in federal court and eventually by the Supreme Court. Among those filing briefs with the high court in support of Playboy were the National Cable Television Association, Motion Picture Association of America, Recording Industry Association of America and Video Software Dealers Association.

The opinion in United States v. Playboy Entertainment Group marked the second time the high court had struck down a portion of the Communications Decency Act. In 1997, the justices rejected a measure prohibiting the distribution through online computer services of “obscene or indecent” material to any person under 18.