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Legal Principle at Issue

Whether a federal law requiring cable operators to "fully scramble" indecent and sexually explicit programming on adult stations violate the First Amendment.

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

Section 505 of the Telecommunications Act of 1996 requires cable television operators to "fully scramble or otherwise fully block the video and audio portion" of channels that provide primarily "sexually explicit adult programming." The act provides that cable operators can comply with _ 505 by showing the "indecent" or "sexually explicit adult programming" only during so-called safe-harbor hours, 10 p.m. to 6 a.m., when children are not likely to view the programming. In 1996, Playboy Entertainment Group filed suit in the United States District Court for the District of Delaware seeking to prohibit the enforcement of Section 505. After the three-judge panel denied Playboy's motion for a preliminary injunction, the U.S. Supreme Court in 1997 refused to review the denial of the preliminary injunction. On Dec. 28, 1998, the district court ruled that _ 505 violated the First Amendment. The court ruled the law was content-based because it restricted only sexually explicit adult programming. The government appealed to the U.S. Supreme Court.

Indecent speech, unlike obscene speech, is entitled to First Amendment protection. Government officials cannot suppress the free-speech rights of adults in order to protect minors from objectionable material unless the law is very narrowly drafted. Content-based laws are presumptively unconstitutional and the government bears the burden of showing that the law advances a compelling state interest in the least restrictive way.

Importance of Case

A law that singles out cable operators for content regulation is a content-based law. Congress already provided for a less restrictive alternative to full scrambling and time-channeling - a lockbox that subscribers can request. "When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals." The government bears the burden of showing that its regulation advances its compelling interest in protecting minors in the least restrictive manner. The high court noted that there was "little hard evidence of how widespread or how serious the problem of signal bleed is."