Court rejects curbs on sex-oriented channels

Forcing cable systems to scramble signals violates free speech,justices rule.

Parents need to take action to protect their children from scrambled glimpses of sexually oriented cable television. The US government is not going to shield their kids' eyes for them.

That's the message of yesterday's decision by the Supreme Court in the case of US v. Playboy Entertainment.

By a 5-to-4 vote, justices ruled that Congress went too far when it required cable TV systems to either fully scramble sex channels or restrict broadcast of those channels to late-night hours. Such restrictions violate First Amendment rights, said justices - especially because another law requires cable operators to completely block any channel for free upon a customer's request.

"The government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests," writes Justice Anthony Kennedy in the majority opinion.

Dissenting justices argued that calling up the cable company and asking for the Spice or Playboy channels to be blocked entirely is in fact an ineffective means of protecting youths from indecent material.

Parents may be unaware of what their children are watching, or unaware of "opt-out" rights, writes Justice Stephen Breyer. Leaving the blocking law in place would offer "independent protection for a large number of families," he writes.

The antismut channel law was a provision of the Communications Decency Act of 1996. Its purpose was to act on the complaints of parents who objected to the fact that even though sex-oriented channels are scrambled for nonsubscribers, bits and pieces of the broadcasts still bleed through.

As many as 39 million homes, with 29 million children, are affected by this problem, US government lawyers argued before the court last November.

The law required broadcasters to either fully scramble such indecent channels or restrict their hours of broadcast to between 10 p.m. and 6 a.m.

Faced with unexpected scrambling costs, many cable systems chose the latter approach. Playboy Enterprises, owner of a number of sex-oriented channels, sued in 1996. Time restrictions cut Playboy's broadcast revenues by up to 15 percent, its lawyers argued.

The Supreme Court allowed the government to begin enforcing the Decency Act's scramble restriction in 1997. But in 1998 a federal court in Delaware agreed with Playboy and struck down the law. Yesterday's ruling was on the government appeal of that decision.

In the end, free-speech protections took precedence over the government's legitimate interest in protecting children, the court said. The same Communications Decency Act that contained the scrambling provision also included language allowing parents to call for a complete channel blockage, noted justices.

"Basic speech principles are at stake in this case," writes Justice Kennedy for the majority.

Some privacy experts hailed the ruling, saying that it drew the right distinctions in an age when fast-changing technology is challenging established First Amendment and privacy restrictions.

"Clearly there are other ways to shield children from content without violating the rights of subscribers," says Sarah Andrews, a policy analyst at the Electronic Privacy Information Center in Washington. "Restricting it to ... time limits [was] overly restrictive."

Experts expect the decision will have an impact on future regulation of the Internet, where similar pornography problems are occurring. "What it does is it upholds strong First Amendment protections for sexually explicit speech," says David Wassermann, a Florida First Amendment lawyer. "It will impact not only cable programming, but also the Internet."

(c) Copyright 2000. The Christian Science Publishing Society

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