United States v. Playboy Entertainment Group, Inc. - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No.98-1682 United States v. Playboy Entertainment Group Inc. will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: This case presents a challenge to Section 505 of the Telecommunications Act of 1996.

The Section 505 requires cable television operators who provide channels, and this is the statutory phrase "primarily dedicated to sexually-oriented programming" either to, and again this is the statute, "fully scramble or otherwise fully block" those channels or to limit them to hours when children are unlikely to be viewing.

The Federal Communications Commission has set those hours to include the time between 10 p.m. and 6 a.m.

Now, before the enactment of the statute, cable operators used scrambling to limit access to certain programs for the customers have paid for.

Scrambling can be imprecise, however and the audio or visual portions of the scrambled programs sometimes can be heard or seen, and this phenomenon is known as "signal bleed".

The purpose of Section 505 is to shield children from signal bleed.

To comply with the statute, most cable operators adopted the time channeling approach.

Now, that is to say they broadcast the material in question only after 10 O'clock in the evening and before six in the morning.

The effect of the widespread adoption of the time channeling was to eliminate the day time transmission of the targeted programming whether or not any particular viewer wanted to receive it.

The Playboy Entertainment Group challenged the statute.

After a trial, a three-judge District Court concluded that a different Section of the Act, Section 504, which allows individual viewers to request channels to be blocked on a household-by-household basis would be an effective less restrictive alternative to Section 505, if the blocking were adequately publicized.

The District Court held Section 505 violates the First Amendment.

We agree and now affirm.

Two essential points should be understood: first, we assume even many adults would find this material highly offensive and when we consider that it comes unwanted into the homes where children might see or hear it against parental wishes, there are legitimate reasons for regulating it; the second, all parties bring the case to us on the premise that Playboy's programming has First Amendment protection.

As this case has been litigated, the programming is not alleged to be obscene.

Adults have a constitutional right to view it and Playboy has a right to transmit it.

Since 505 is a content-based restriction of protected speech, it can stand only if it satisfies strict scrutiny.

It must be narrowly tailored to promote a compelling government interest and if a less restrictive alternative would serve the government's purpose, the legislature must use that alternative.

Like broadcast television, cable programs can be transmitted to homes where there are not wanted and where parents often are not present to give immediate guidance.

But there is also a key difference between cable television and the broadcasting media.

Cable systems have the capacity to block unwanted channels on a household-by-household basis.

Targeted blocking is less restrictive than banning, and the government cannot ban speech of targeted blocking as a feasible and effective means of furthering its compelling interests.

When a plausible, less restrictive alternative has offered to a content-based speech restriction, the Government bears the burden of proving the alternative will not be effective to achieve its goals.

The Government did not meet that burden here.

The government pointed out that Section 504, which was the blocking provision was only in effect for over a year and that there were a few requests for household-by-household blocking during that time.

The District Court explored the possible reasons for this.

First, the actual signal bleed problem might be a far-less concern then the government had it first supposed, although the government had an opportunity to prove otherwise at trial that presented no proof of the actual extent of the problem.

There was no proof as to how likely any child is to view a discernible explicit image, and no proof of the duration of the signal bleed or the quality of the pictures or the sound.

The First Amendment requires a more careful assessment and characterization of an evil to justify a regulation as sweeping as this.

Second, it is possible that Section 504, the blocking provision, would be effective if the public were given adequate notice.

The District Court called for proof on this point and once again the government failed to meet its burden.

There is no evidence that a well promoted voluntary blocking provision could not inform parents about signal bleed and about their rights to have the bleed blocked if they consider it a problem.

The Government has not shown that Section 504 whether in a regime of added communication and support would be insufficient to secure its objective, or that any overriding harm justifies its intervention.

The opinion explains at some detail the technical aspects of this case including any future advent of digitized technology, which may resolve the problem.

The District Court was correct in holding Section 505 violated the First Amendment.

Justice Stevens and Justice Thomas have filed concurring opinions; Justice Scalia has filed a dissenting opinion and Justice Breyer has filed a dissenting opinion, in which the Chief Justice, Justice O'Connor and Justice Scalia join.