In a 5-to-4 decision, the U.S. Supreme Court held that Section 505 of the Telecommunications Act of 1996 violates the First Amendment, thus vindicating Playboy Enterprises’ four-year struggle against the law. United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000). Justice Anthony Kennedy wrote the opinion for the Court and was joined by Justices Stevens, Ginsburg, Souter, and Thomas. Justice Steven Breyer wrote the principal dissent, joined by Chief Justice Rehnquist and Justices O’Connor and Scalia.

    Although the case was decided by a narrow margin, the decision produced a clear majority opinion that undercuts aggressive governmental efforts of recent years to weaken applicable First Amendment standards. In holding for the first time that programming on cable television is entitled to the highest level of First Amendment protection, the Playboy majority also clarified that:

• The government must satisfy a significant burden of proof to support content-based speech restrictions.
• The "secondary effects" doctrine used in zoning cases is inapplicable to content-based restrictions on speech.
• Society’s "independent interest" in protecting children cannot justify censorship of speech intended for adults.
• First Amendment protection is not diminished for what the government presumes is "low value" speech.
• The government must use the least restrictive means of serving its interests in order to avoid restricting protected speech.

Background

    The Communications Decency Act (CDA), adopted as Title V of the Telecommunications Act of 1996, included provisions addressing the issue of imperfect scrambling of premium cable channels, also known as "signal bleed." Section 504 of the Act requires cable operators, without additional charge, to "fully scramble" or otherwise "fully block the audio and video programming" of any channel upon the request of a customer who does not subscribe to the channel. The provision codified a voluntary policy that had been initiated by the cable industry and formally adopted by the National Cable Television Association in February 1995.

    Despite the existence of Section 504, the CDA included another provision -- Section 505 -- that specifically targeted "adult" cable networks. Unlike Section 504, which empowered subscribers to prevent signal bleed from any channel, Section 505 imposed a scrambling requirement in advance for all households with respect to "sexually explicit adult programming or other programming that is indecent" transmitted on channels "primarily dedicated to sexually oriented programming." The law required that any such channel be fully scrambled even without a request by the customer for such blocking.

    Cable operators who could not comply with the full scrambling requirements were required to cease transmitting such channels "during hours of the day ... when a significant number of children are likely to view it." The Federal Communications Commission subsequently determined that networks covered by Section 505, unless fully scrambled, could not be made available to subscribers between 6 a.m. and 10 p.m., the equivalent of two-thirds of the broadcast day. Cable operators were permitted to transmit the affected networks during the so-called "safe harbor" hours of 10 p.m. to 6 a.m.

    In February 1996 Playboy Entertainment Group filed suit in U.S. District Court for the District of Delaware to block enforcement of Section 505. Although Judge Richard Farnan issued a temporary restraining order barring enforcement of Section 505 in March 1996, Playboy Entertainment Group, Inc. v. United States, 918 F. Supp. 813 (D. Del. 1996), a three-judge district court (as prescribed by the Telecommunications Act) subsequently denied Playboy’s request for a preliminary injunction. Playboy Entertainment Group, Inc. v. United States, 945 F. Supp. 772 (D. Del. 1996), aff’d mem. 520 U.S. 1141 (1997). The FCC then adopted rules to implement Section 505, which became effective in May 1997. However, after a full hearing on the merits, the three-judge district court reversed itself and issued a permanent injunction against enforcing Section 505. Playboy Entertainment Group, Inc. v. United States, 30 F. Supp. 2d 702 (D. Del. 1998). It is from this decision that the government appealed to the Supreme Court.

The Supreme Court’s Decision

    The Court majority found that the restrictive effect of Section 505 was "now apparent," noting that "the only reasonable way for a substantial number of cable operators to comply with the letter of Sec. 505 is to time channel." As a result, the law "silences ... 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." Playboy Entertainment Group, 120 S. Ct. at 1886. Because of the significant restriction on communication between speakers and willing adult listeners, the Court found that the law was required to withstand "rigorous scrutiny." Id.

    Burden of Proof. As part of its scrutiny of Section 505, the majority held that the government did not meet its burden by merely asserting the magnitude of the signal bleed problem or by predicting that less restrictive alternatives would fail. The Supreme Court agreed with the district court that there was little hard evidence of how widespread or how serious the problem of signal bleed is: "To say that millions of children are subject to a risk of viewing signal bleed is one thing; to avoid articulating the true nature and extent of the risk is quite another." The Court agreed that if millions of children were indeed being exposed to signal bleed, "we, like the District Court, would have expected to be directed to more than a handful of complaints." Bottom line: "The Government must present more than anecdote and supposition." Playboy Entertainment Group, 120 S. Ct. at 1889-91.

    The majority opinion in Playboy contrasts sharply with the Court’s recent decision in City of Erie v. Pap’s A.M., 120 S. Ct. 1382 (2000). There, the Court upheld an Erie, Pa., ban on nude dancing where there was no evidence of an actual problem, and all justices acknowledged that a requirement that dancers wear pasties and a G-string would have no real-world effect. Nevertheless, the plurality wrote that "[i]n the absence of any reason to doubt it, the city’s expert judgment should be credited." Id. at 1396. The Playboy decision forestalls the possibility that this extreme level of deference to the government would be extended to a direct regulation of speech.

    Secondary Effects. To support a lower level of First Amendment scrutiny, the government had argued in Playboy that signal bleed is a "secondary effect" that can be regulated freely. Such reasoning generally has been confined to zoning cases, but the government has been seeking to extend the analysis to other areas. The Playboy majority flatly rejected a secondary effects approach and found Section 505 to be "the essence of content-based regulation." Playboy Entertainment Group, 120 S. Ct. at 1885, 1887. The Court concluded that "[o]ur zoning cases ... are irrelevant to the question here.... We have made clear that the lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech." Id. at 1887. This conclusion should impede future attempts by the government to classify direct speech regulations as a form of "zoning." E.g., Reno v. ACLU, 521 U.S. 844, 867-68 (1997) (rejecting argument that Internet indecency restrictions are a form of "cyberzoning").

    Society’s "Independent Interest" in Protecting Children. Another important aspect of the decision involved the government’s claim that it may restrict speech notwithstanding the existence of effective alternatives because of the government’s "independent interest" in protecting children. On this theory the government claimed that it could censor constitutionally protected speech between willing adults because some parents might choose not to use effective tools available to them. However, the Playboy majority emphatically rejected this argument: "Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." Playboy Entertainment Group, 120 S. Ct. at 1892.

    This conclusion reinforces the Court’s conclusions regarding least restrictive means. The majority stressed that "[i]t is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act." Id. In short, the Court found that individual user empowerment trumps the government’s "independent" interest in control.

    "Low Value" Speech. In a number of recent cases involving sexually oriented speech, the government consistently has sought to lower the level of First Amendment scrutiny. It failed to persuade the Court to apply relaxed constitutional scrutiny in Reno v. ACLU, 521 U.S. at 870, but in Pap’s A.M. Justice O’Connor, writing for the plurality, agreed that nude dancing "falls only within the outer ambit of the First Amendment’s protection." Pap’s A.M., 120 S. Ct. at 1391. She paraphrased Justice Stevens’s dictum that "society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate." Id. at 1393-94, quoting Young v. American Mini Theaters, 427 U.S. 50, 70 (1976) (Stevens, J., concurring).

    The majority opinion in Playboy directly confronted, and dispelled, the conclusion that sexually oriented speech should receive less constitutional protection. It stated:

We cannot be influenced ... by the perception that the regulation in question is not a major one because the speech is not very important. The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. It follows that all content-based restrictions on speech must give us more than a moment’s pause. If television broadcasts can expose children to the real risk of harmful exposure to indecent materials, even in their own home and without parental consent, there is a problem the Government can address. It must do so, however, in a way consistent with First Amendment principles. Playboy Entertainment Group, 120 S. Ct. at 1893.

 

    In an even more eloquent passage, the majority explained that it is for individuals -- not the federal government -- to decide the relative value of speech:

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. 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. Id. at 1889.

 

    These two passages from the Playboy opinion represent the Court’s clearest statements to date that it will not reduce the level of First Amendment scrutiny because of a perception that the expression is too "tawdry." Least Restrictive Means. The Court’s pivotal conclusion was that Section 505 is unconstitutional because other, less restrictive measures are available to serve the government’s stated interests. The majority pointed out that it is the government’s burden -- not the private litigant’s -- to demonstrate that less restrictive alternatives are ineffective. Playboy Entertainment Group, 120 S. Ct. at 1888. In this regard, the majority also clarified a matter that had been left unsettled by its earlier decision in Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727 (1996), where a plurality found that both broadcasting and cable television are "pervasive" media for purposes of regulating indecency.

    The government argued that the restrictive regime of FCC v. Pacifica Foundation, which governs broadcast television, should be applied to cable television as well, rather than a more speech-protective standard. But the Playboy majority rejected this analysis, finding that the key difference between cable television and broadcasting "on which this case turns" is that cable systems have the capacity to block unwanted channels on a household-by-household basis. Playboy Entertainment Group, 120 S. Ct. at 1887. This suggests that as the technology of user control improves in the future, the justification for regulation will diminish even further.

Conclusion

    The Playboy decision, and particularly the Supreme Court’s insistence that government use the least restrictive means of regulation, has clear implications that extend beyond cable television. The most obvious example is the Internet, where technology provides individuals with more tools for user empowerment than in any other medium. Accordingly, in the months after the Supreme Court opinion, the U.S. Court of Appeals for the Third Circuit cited Playboy prominently in its decision to uphold an injunction barring enforcement of the Child Online Protection Act, ACLU v. Reno II, 217 F.3d 162 (3d Cir. 2000), as did the U.S. District Court for the Western District of Virginia in its decision to enjoin a Virginia Internet censorship law. PSINet v. Chapman, 108 F. Supp. 2d 611 (W.D. Va. 2000).