THE MACHINE
TELECOM CASE
Telecommunications Act Unconstitutional
In a 5-4 decision, the court ruled that the provision of the
Telecommunications Act--which required cable providers of
sexually explicit material to "fully scramble" their
signals or show such programming only when children are unlikely
to be watching--violated the First Amendment's free speech
guarantees.
The court said another section of the same law, which requires
cable operators to block any cable channel at the request of a
subscriber, offered an equally effective and "less
restrictive" means to achieve the same goal.
In First Amendment matters, "if a less restrictive means is
available for the government to achieve its goals, the government
must use it," Justice Anthony M. Kennedy wrote for the court
majority.
Yesterday's high court decision represented a victory for Playboy
Entertainment Group Inc., which operates the Playboy TV Network
and the Spice Network, the dominant adult entertainment cable
channels. It was also another sign that a slim court majority is
more willing than Congress to apply strict First Amendment
protections to evolving information technology.
In 1997, the justices invalidated another section of the same
federal law that restricted the transmission of sexually explicit
material over the Internet. The ruling delighted civil
libertarians and the cable television industry, but dismayed a
variety of conservative organizations that are working to
restrict children's exposure to sexually oriented material.
Christie Hefner, chairman and chief executive of Playboy
Enterprises, Inc., said "the beauty of the decision was to
endorse the rights of parents to control what comes into their
home without limiting the rights of adults to see
constitutionally protected programming."
But Janet LaRue, senior director of legal studies at the Family
Research Council, said "it's a sad day when the protection
of children and unconsenting adults takes a back seat to the
profit of cable pornographers." She said the court's
decision "places the burden on cable subscribers rather than
the sexually explicit cable providers" to keep the material
out of homes.
The case, U.S. v. Playboy Entertainment Group Inc., arose from
the problem of "signal bleed"--cable TV signals
sometimes becoming available to nonsubscribers. Congress
responded in the 1996 Telecommunications Act by requiring cable
providers of sexually explicit material to scramble those signals
or confine the programming to times when children are unlikely to
be watching. The Federal Communications Commission later set the
acceptable time as between 10 p.m. and 6 a.m.
According to Playboy, most cable operators chose to restrict the
time they would show adult programming rather than risk lawsuits
stemming from signal bleed or incurring the expense of creating a
foolproof scrambling system.
Playboy challenged the restrictions, and in 1998 a special
federal district court in Delaware ruled that the rules violated
the First Amendment by targeting a certain kind of speech--sexually
explicit material--based on its content, and banning that type of
programming for most of the day. Unlike obscene materia, sexually
explicit programming is protected under the First Amendment.
Kennedy, who was joined by Justices John Paul Stevens, David H.
Souter, Clarence Thomas and Ruth Bader Ginsburg, agreed with that
decision, saying that the only "reasonable way" for
many cable operators to comply with the law was to restrict adult
programming to a few hours a day.
That, Kennedy wrote, "silences the protected speech for two-thirds
of the day in every home in a cable service area, regardless of
the presence or likely presence of children or of the wishes of
the viewers. . . . To prohibit this much speech is a significant
restriction of communication between speakers and willing adult
listeners, communication which enjoys First Amendment protection."
Kennedy also emphasized that because the case involved free
speech guarantees, it was up to the government to prove that the
proposed alternative method of protecting children from sexually
explicit material would be ineffective. He said the government
had failed to do so.
It was on this point that Justice Stephen G. Breyer based the
main dissent in the case. He argued there was no evidence that
allowing cable subscribers to request complete blocking of
certain programming would be equally effective in shielding
children.
Citing the millions of children left alone at home after school,
Breyer said that the restrictions struck down yesterday offered
more certain protections for "a large number of families."
"By finding 'adequate alternatives' where there are none,
the court reduces Congress's protective power to the vanishing
point," Breyer wrote. Other dissenters were Chief Justice
William H. Rehnquist and Justices Sandra Day O'Connor and Antonin
Scalia.
There is little agreement on the pervasiveness of signal bleed.
The Justice Department estimated that 39 million homes with 29.5
million children could potentially be affected. But Robert Corn-Revere,
a lawyer for Playboy, said that in 16 years of transmitting adult
entertainment, the company had heard only a handful of complaints
and did not believe it was a significant problem.
Hefner said about 25 million households view Playboy TV and 14
million receive the Spice Network, which Playboy acquired last
year. Playboy projected that the federal law would cost it $25
million in lost revenue over a decade.
In another closely watched case decided yesterday, the court
upheld a key part of a Civil War-era law that authorizes
individuals to file suit on behalf of the federal government
alleging fraud and to keep a portion of any settlement or court
award.
But in the 7-2 decision, the justices also said that states and
state agencies cannot be sued under the 1863 False Claims Act
because they are not "persons" as defined by the law.
Amended and revived in the 1980s, the law is considered an
important element in "whistleblower" attempts to curb
fraud against the government.
In another case yesterday, the court ruled unanimously that a
federal anti-arson law does not apply to fires set in private
homes but only to commercial buildings or other structures more
closely linked to Congress's authority to regulate interstate
commerce. The decision invalidated the federal conviction of an
Indiana man who set fire to his cousin's house.
And in yet another decision, the court ruled 5-4 that criminal
defendants who voluntarily tell jurors about previous convictions,
rather than allowing that information to become known through
cross-examination by prosecutors, cannot appeal a judge's
decision to allow questioning about their criminal backgrounds.
Reasons why this case is important:
1. It involves the First Amendment, the most attacked article of the Constitution
2. It over-rules an act of Congress
3. It's a major moral issue, which always draw attention from the extremities of American Politics