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May 23, 2000 09:00am
Supreme Court Rules Congress Unfairly Restricted Cable Sex Channels
Source: News Wire

(WASHINGTON) -- Thanks to the Supreme Court, Playboy at Night will soon be available during the day. Unlike obscene material, indecent material is constitutionally protected. The government cannot force sexually oriented programming like the Playboy Channel into late-night hours only because its signal occasionally becomes visible or audible, the Supreme Court ruled Monday.

In 5-to-4 ruling Monday, the high court said cable operators will no longer have to restrict the Playboy Channel, Spice and other adult-themed fare to late-night hours.

"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," Justice Anthony Kennedy wrote for the court. "It must do so, however, in a way consistent with First Amendment principles."

The high court agreed with Playboy and its nudie-loving cable compadres that a 1996 federal law was unconstitutional. The law required cable companies to block such salacious programs from nonsubcribers during the daytime, but Playboy and company argued that, since many cable systems lacked the technology to guarantee the audio and video feeds would be completely scrambled, they simply opted to restrict these networks to airing only between 10 p.m. and 6 a.m.

"It put carriage of our network in jeopardy in a number of places," said Tony Lynn, president of the Playboy Entertainment Group. And that is a violation of the First Amendment right to free expression.

"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," Justice Anthony M. Kennedy wrote in the majority opinion. He added, "The citizen is entitled to seek out or reject certain ideas or influences without government interference or control."

The U.S. Justice Department felt the law should stay because it prevented children from watching television programs unsuitable for them.

That argument found a sympathetic ear with the nay-saying judges. "Our prior cases recognize that where the protection of children is at issue, the First Amendment poses a barrier that properly is high, but not insurmountable," Justice Stephen G. Breyer wrote in the dissenting opinion.

The anti-smut law was enacted as part of the 1996 Communications Decency Act following complaints that while sex-oriented channels are scrambled for nonsubscribers, the picture and sound sometimes get through.


Playboy Entertainment Group challenged the law as a violation of First Amendment free-speech protection. The law restricts such programming even to households without children, Playboy's lawyers argued.

Both sides agreed that such a shield was a good goal to have, but couldn't agree on how much constitutional "flexibility" that the court should give the government in its effort to protect children.

Lynn said he expects his channels' distribution to grow because of the ruling. "Now that we've got the shackles off, we're going to have an ability to do business with our consumers when they want to see us," he said.

Federal officials attempted to remind cable customers that they can ask cable companies to block channels fully.


"In reviewing today's Supreme Court decision, parents should remember that current law specifically provides that cable customers can contact their local cable companies and request that channels they find objectionable be blocked from their homes at no cost," FCC chairman Bill Kennard said. "Parental choice is precisely the core of the FCC's V-chip program, which is giving parents the ability to block television programming that is not fit for their kids to watch. We continue to urge parents to equip themselves with a V-chip."

Kennard's point was seconded by Hefner.

"We have always supported the right of individuals to control what information comes into their homes," she said. "Whether through the V-chip, lock boxes or blocking cable operators on request."

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