Washington -- The Supreme Court heard oral arguments last
week in Playboy Entertainment Group Inc.'s challenge to a 1996 law mandating the
scrambling of adult sex channels.
The law -- which a lower court found violated the First
Amendment -- required cable operators to scramble the audio and video feeds of adult
channels or to air them only between 10 p.m. and 6 a.m.
Playboy said most operators opted for time-shifting because
of prohibitive blocking costs, asserting that the move would cost the company millions of
dollars until the wide deployment of digital technology eliminated signal bleed
altogether.
The law -- section 505 of the Telecommunications Act of
1996 -- was intended to protect children from pornographic "signal bleed" in
cable homes that don't subscribe to Playboy.
Department of Justice attorney James Feldman told the high
court there was "substantial evidence" of signal bleed, and Congress was owed
"some deference" in the legal remedy it crafted.
Playboy counsel Robert Corn-Revere called the law
"regulatory overkill" because it banished Playboy from TV screens for two-thirds
of the broadcast day in all cable homes, whether or not signal bleed occurred.
Corn-Revere said Playboy supported a related provision
enacted at the same time -- section 504, which required cable operators to block Playboy
free-of-charge when subscribers complained about signal bleed.
Justice Antonin Scalia said that in his view,
Playboy's programming is obscene and, therefore, not protected under the First
Amendment. Scalia suggested that he wanted to remand the case to the lower court for a
determination on whether the network's programming is obscene, adding, "It seems
to me [to be] obscenity."
Justice John Paul Stevens suggested that section 505 was
problematic because it applied to channels "primarily dedicated to sexually oriented
programming," excluding cable and broadcast networks with racy scenes and dialogue.
"I am very often shocked at what I see on television," he added.
Under the lower-court ruling, section 505 was deemed a
content-based law, requiring the government to have a compelling interest for enacting it
and to utilize the least restrictive means for protecting that interest.
The lower court held that although protecting children from
signal bleed was a compelling interest, section 505 was unconstitutional because it was
not drafted narrowly enough, pointing to section 504 as a superior remedy that accosted
signal bleed on a case-by-case basis.
Exchanges between the nine justices and Corn-Revere and
Feldman suggested no disagreement with the lower court's holding that section 505 was
content-based. Instead, the dialogue centered on whether section 504 was in fact the least
restrictive alternative.
Justices Anthony M. Kennedy and Stephen Breyer asked
questions suggesting that section 505 had merit because section 504 put the onus on
parents, instead of cable operators, to banish pornography from the home.
Breyer said the cable industry's solution forced
parents to "opt out" of pornography under section 504, while section 505
wouldn't let pornography into the home in the first place, except between 10 p.m. and
6 a.m.
In response to Justice David H. Souter, Corn-Revere
insisted that operators would give notice to subscribers about signal bleed and the
availability of section 504 blocking remedies. "I do think notice could be
effective," he added.
After the hearing, Corn-Revere said he couldn't be
sure whether Scalia wanted to remand the case for a further look at the obscenity issue.
"I try not to guess what individual justices may want. He certainly had some hard
questions. None of Playboy's content is obscene," he added.
