In 1996, Congress passed telecommunications legislation including provisions aimed at regulating children’s exposure to adult, ‘‘sexually oriented’’ programming on cable television. The result was a law that significantly restricted the access of all viewers— adults and children—to these programs. A five-justice majority of the Court held that this violated the First Amendment because an alternative provision of the law, which required these programs to be blocked on a house-by-house basis, as requested by cable subscribers, was an efficient alternative for preventing children from viewing adult channels.
Section 505 of the law provided cable television operators with two options—to ‘‘fully scramble or otherwise fully block’’ access to adult channels, or confine transmission to between 10 p.m. and 6 a.m. Most operators chose the ‘‘time channeling’’ option; they could be held liable if scrambling did not prevent ‘‘signal bleed’’—resulting in occasionally hearing or seeing portions of blocked programs. The Court observed that the effect was that ‘‘for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so.’’
The justices unanimously agreed that because Section 505 regulated the content of speech, it should be reviewed using strict scrutiny, requiring the government to show that a regulation furthers a compelling state interest and is the option that places the least restriction on the expression it regulates. However, five justices agreed that Section 505 did not pass this test because of the existence of Section 504 of the law, which only restricted a household’s access to adult programming on the consumer’s request. Cable consumers would be informed of this option either by mailings or advertisements on channels others than those showing the adult programming. The government argued that this was an ineffective alternative, because few consumers requested channel blocking. The Court concluded that the government failed to show that this was more likely to be the result of the ineffectiveness of notifying homeowners of this option than the absence of a pervasive problem of signal bleed enabling children to see sexually explicit programs. Therefore, Section 504 was held to be an effective alternative that placed fewer restrictions on speech than Section 505.
The unanimous agreement to subject the legislation to strict scrutiny moves the Court away from its attempt, in Denver Area Educational Telecommunications Consortium v. FCC, to formulate different standards of judicial review for different types of media. In Denver Area, the Court reasoned that this would allow the law to accommodate rapid technological advances. Playboy instead accommodates the free speech choices of the media’s consumers. As the Court explained: ‘‘Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.’’
Although, as the Court itself acknowledged technological advances will limit the impact of this decision, Playboy remains significant, because legislation regulating the content of broadcast media will need to be narrowly written to survive the strict scrutiny test.
HELEN J. KNOWLES
References and Further Reading
Cases and Statutes Cited