November 30, 1999 11:58am
Court Asked To Revive Anti-Smut Law
by: LAURIE ASSEO
(WASHINGTON) -- The Clinton administration asked the Supreme Court today to revive a law aimed at shielding children from Playboy Television and other sexually explicit cable TV channels.
The law, struck down by a lower court, is Congress' attempt to limit "graphic, sexually explicit adult programming that is available on cable television to children with merely a flip of the dial," Justice Department lawyer James A. Feldman said.
But the lawyer for Playboy Entertainment Group called the 1996 law "a case of regulatory overkill" that would restrict programming even to households without children.
The law violates the Constitution's free-speech guarantee, and a decision to uphold it could "open a wide avenue" for regulation of other new technologies, said Playboy Entertainment lawyer Robert Corn-Revere.
Under the law, cable systems could show sex-oriented networks only during overnight hours if they did not fully scramble the signal for nonsubscribers.
Picture and sound occasionally get through to nonsubscribers when a cable channel's signal is only partly scrambled. A Florida woman complained to Congress that she found her 7- and 8-year-old children "transfixed" by sex scenes on an imperfectly scrambled channel.
A decision on whether the law went too far is expected by late June.
Feldman urged the justices to compare the measure's limits on speech with the "evil it's addressing." Government lawyers had submitted to the court examples of sex-oriented programming that children could see and hear.
"I wouldn't even read the descriptions in public," said Justice Antonin Scalia. "It seems to me obscenity," which is not constitutionally protected.
But Justice John Paul Stevens noted that the law did not address programming on other cable channels that are not primarily sex-oriented.
"We see an awful lot of strong language on WGN," Stevens said. "I'm often shocked at what I see on television."
Corn-Revere said the law would restrict all of his client's programming. "There is no distinction between hard-core pornography ... and safe-sex information if it's shown on Playboy Television."
Corn-Revere said the law contained an alternative that requires cable channel operators to block any channel, free of charge, if a customer requests it.
But Justice Stephen G. Breyer questioned having an alternative in which people have to take action to stop the signal from coming into their homes.
Breyer said that in today's world, "many, many thousands of children come home from school and there's no one there" to know what they are watching on television.
The law was enacted as part of the 1996 Communications Decency Act. Cable operators that don't fully scramble or block sex-oriented networks for nonsubscribers can show those "indecent" programs only between 10 p.m. and 6 a.m.
Playboy challenged the law as a violation of the Constitution's First Amendment, which protects freedom of speech. Indecent material is constitutionally protected, while obscene material is not.
A federal court struck down the law in December 1998, noting that another part of the law already requires cable operators to completely block any channel upon a customer's request.
The trial court said giving customers adequate notice of that choice would be a less-restrictive alternative to banning all daytime adult-oriented programming.
The Supreme Court cited free-speech protections in 1996 when it struck down parts of a federal law aimed at restricting children's exposure to indecent programs on some cable channels. The justices ruled the government cannot force cable operators to segregate all indecent programs on a single leased channel, nor can it let cable operators opt out of carrying public-access channels that feature indecent programs.
In 1997, the court ruled that Congress' effort to keep pornography off the Internet violated the First Amendment. The 1996 law made it a crime to put "indecent" or "patently offensive" words or pictures online where they could be found by children.