Applying broadcast indecency rules to cable would likely violate the First Amendment, according to a nonpublic research report recently released by the Congressional Research Service.
Broadcast rules enforced by the Federal Communications Commission would, in theory, require cable to ban indecent content from 6 a.m.-10 p.m. In 2000, the Supreme Court struck down indecency regulation of sexually explicit cable channels in a case involving Playboy Channel.
In the 14-page study, the CRS concluded that in the wake of the Playboy decision, "It appears likely that a court would find that to apply the FCC's indecency restriction to cable television would be unconstitutional."
As the public-policy arm of Congress, the CRS prepares reports for the exclusive use of Capitol Hill lawmakers and committee personnel. Its work is confidential and nonpartisan.
The Dec. 1, 2005 cable indecency report was posted on a Web site sponsored by the Center for Democracy & Technology (opencrs.com) in an effort to broaden public circulation of CRS reports.
In a bid to reach a compromise with Congress and the FCC, the National Cable & Telecommunications Association offered to let legislation pass that would apply broadcast indecency rules to cable's basic and expanded-basic tiers on condition that the law not take effect until the courts had upheld its constitutionality. The proposal did not gain much traction on Capitol Hill.
In its analysis questioning a cable indecency law, the CRS said courts would demand that the law serve a compelling state interest and represent the least restrictive means of advancing that interest.
"It seems uncertain whether the [Supreme] Court would find that denying minors access to ‘indecent’ material on cable television would constitute a compelling governmental interest," the CRS said.
In the past, the courts have said that shielding children from pornography was a compelling state interest. The CRS said cable indecency regulation was problematic because "not all indecent material is sexually explicit."
The CRS said the Supreme Court might accept that the 6 a.m.-10 p.m. ban was the least-restrictive means but still strike down the law as a First Amendment violation because the government "may not reduce the adult population … to … only what is fit for children."
The CRS added that its analysis also applied to direct-broadcast satellite providers.
An NCTA spokesman declined to comment on the CRS study. Last week, NCTA president Kyle McSlarrow told the Senate Commerce Committee that indecency regulation of cable was unconstitutional under Supreme Court precedents.
