US Supreme Court : U.S. vs. Playboy Entertainment Group - Case Study Example

U.S. v. Playboy Entertainment Group, Inc judicial determination of actual ‘compelling government interest’ in efforts at enforcement of Section 505 of the Telecommunications Act of 1996 (a matter implicating the First Amendment to the Constitution) INTRODUCTION The United States Supreme Court, in 2000, upheld (5-4) a lower court ruling [30 F. Supp. 2d 702, D. Del. 1998] that the Government (specifically, the Federal Communications Commission, or FCC) failed to demonstrate that it had a compelling interest in enforcing section 505 (“Scrambling of Sexually Explicit Adult Video Programming”) of the Telecommunications Act of 1996 [Public Law 104-104, 110 Stat. 136, 1996].1 The Supreme Court upheld the District Court determination that the “Government failed to prove sec. 505 is the least restrictive means for addressing a real problem [529 U.S. 803].2” To a significant degree, sec. 505 revolved around a technical problem relating to video scrambling. “Even before enactment of the statute, signal scrambling was already in use. Cable operators used scrambling in the regular course of business, so that only paying customers had access to certain programs. Scrambling could be imprecise, however, and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as ‘signal bleed.’ The purpose of sec. 505 is to shield children from hearing or seeing images resulting from signal bleed3 [529 U.S. 803].” Section 505 (paragraph B) provided that no cable provider might transmit any signal containing sexually explicit material during those hours of the day when children might be reasonably expected to be prospective viewers, if there were any possibility of signal bleed. (This provision, called ‘time channeling,’ of course, effectively prohibited such transmissions during most of the day.4) According to the syllabus accompanying the Court’s decision in United States, et al., Appellants v. Playboy Entertainment Group, Inc. [on appeal form the United States District Court for the District of Delaware], 529 U.S. 803, May 22, 2000, “A three-judge District Court concluded that sec. 505’s content-based restriction on speech violates the First Amendment because the Government might further its interests in less restrictive ways. One plausible, less restrictive alternative could be found in sec. 504 of the Act, which requires a cable operator, “upon request by a cable service subscriber … without charge, [to] fully scramble or otherwise fully block” any channel the subscriber does not wish to receive. As long as subscribers knew about this opportunity, the court reasoned, sec. 5045 would provide as much protection against unwanted programming as would sec. 505 [529 U.S. 803, at 804].” BACKGROUND TO THE CASE The Telecommunications Act of 1996 was the first comprehensive ‘overhaul’ of telecommunications law in 62 years. During floor debate on the Act in the House of Representatives, a floor amendment (Title V, cited as the Communications Decency Act of 1996) was adopted, included in the comprehensive reform measure, and enacted into law. Proponents of the amendment anticipated a constitutional challenge to certain language in the act—notably sec. 505—and, as noted, included specific language (sec. 561, “Expedited Review”) accelerating the appellate process. Preliminary judicial proceedings Shortly after enactment, interested parties brought suit in Federal District Court (District of Delaware) seeking a restraining order enjoining the Federal Communications Commission (or FCC) from enforcing sec. 505 of the Act. “On March 7, 1996, the United States District Court for the District of Delaware issued a temporary restraining order enjoining the United States Government, including the Commission, from ‘enforcing or implementing Section 505 of the Telecommunications Act of 1996 in any manner.’ The court’s order remains in force until a panel of three judges of the district court conducts a hearing and makes a determination on a pending motion for preliminary injunction [FCC, CS-96-17, March 13, 1996].” The Supreme Court upheld the District Court’s restraining order. As described supra, Playboy Entertainment Network prevailed in Federal District Court.6 The Supreme Court granted certiorari, per sec. 561b of the Telecommunications Act.7 Underlying appellant [Government] arguments In its brief amicus curiae, the Solicitor General (Seth Waxman, who argued the case for the United States before the Court) pointed to Supreme Court precedents solicitous of the interests of young children.8 “This Court has repeatedly—and recently—referred to the pervasiveness of those media, their intrusiveness into the home, and their accessibility to children as the factors that justify regulation of indecency on television or radio [Reply brief for the appellants, No. 98-1682, October 1999].” In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), a case in which the defendant was a radio station—and therefore a transmitter whose signal could not realistically be blocked on a selective basis—the Court held in favor of the Government as regulator of signal content. In Denver Area Educational Telecommunications Consortium v. FCC (518 U.S. 727), Justice Souter, in his majority concurring opinion, argued, “the characteristics of broadcast radio that rendered indecency particularly threatening in Pacifica, that is, its intrusion into the house and accessibility to children, are also present in the case of cable television [Id., at 748].” In light of this statement, the Solicitor General argued that Playboy’s assertion of differing standards—based on wire (cable) versus airwaves (broadcast)—was without foundation. “Appellee [Playboy] argues that a different standard of review, less protective of children, applies to cable television than the one this Court has held applicable to broadcast television and radio. Appellee’s arguments are illogical and inconsistent with this Court’s precedents [Reply brief for the appellants, No. 98-1682, October 1999].” Finally, the Solicitor General argued that the District Court erred in holding that the enhanced version of sec. 504 was a less restrictive alternative to sec. 505. “The alternative that the district court conceived—providing for notice to cable subscribers of the existence of signal bleed of sexually explicit programming and of a feasible means of eliminating it—would not be an adequate alternative to Section 505 because it would not serve all of the compelling interests served by Section 505 … and would not be less restrictive because it would lead to (at least) the same burdens on appellee’s speech [Reply brief for the appellants, No. 98-1682, October 1999].” Underlying appellee [Playboy] arguments In its brief amicus curiae, Playboy Entertainment Group (in the person of Robert Corn-Revere, counsel, who argued the appellee’s case before the Supreme Court) argued that sec. 505 violated the First Amendment to the Constitution. Playboy referred to the ‘time channeling’ (sec. 505b) as being particularly odious. “As the district court found these widespread cutbacks significantly ‘diminished Playboy’s opportunities to convey, and the opportunity of Playboy’s viewers to receive, protected speech’ because time channeling results in ‘the removal of all sexually explicit programming during two-thirds of the broadcast day from all households9 on a cable system’ [Brief amicus curiae for the appellee, September 24, 1999, 14-15].” Playboy further argued that Pacifica did not provide an appropriate standard of review. In that case, the Court “upheld only the government’s ability to subject a particular broadcast to subsequent review, and emphatically declined to the authorize the FCC ‘to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves’ [Brief amicus curiae for the appellee, September 24, 1999, 22-23].” THE SUPREME COURT DECISION IN U.S. v. PLAYBOY ENTERTAINMENT GROUP, INC. The majority opinion The Court majority found the Government’s arguments unpersuasive. Regarding the purported ineffectiveness of sec. 504, the Court opined, “The Government also contends a publicized sec. 504 will be just as restrictive as sec. 505, on the theory that the cost of installing blocking devices will outstrip the revenues from distributing Playboy’s programming and lead to its cancellation… This conclusion rests on the assumption that a sufficient percentage of households, informed of the potential for signal bleed, would consider it enough of a problem to order blocking devices—an assumption for which there is no support in the record [529 U.S. 803].” Regarding the overarching First Amendment issue, the Court opinion continued, “Basic speech principles are at stake in this case. When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression. We cannot be influenced, moreover, by the perception that the regulation in question is not a speech that many citizens may find shabby, offensive or even ugly [529 U.S. 803].” The minority opinion In his dissenting opinion, Justice Breyer (with three other justices joining in his dissent) found sec. 505 to be constitutionally sound. “The statute is carefully tailored to respect viewer preferences. It regulates transmissions by creating tow ‘default rules’ applicable unless the subscriber decides otherwise. Section 504 requires a cable operator to ‘fully scramble’ and channel (whether or not it broadcasts adult programming) if a subscriber asks not to receive it. Section 505 requires a cable operator to ‘fully scramble’ every adult channel unless a subscriber asks to receive it. Taken together, the two provisions create a scheme that permits subscribers to choose to see what they want [529 U.S. 803].” Thereafter, Justice Breyer turned to what he termed ‘the major point of disagreement.’ Sections 504 and 505, while working to achieve very different legislative objectives, both had as objectives supporting frequently and widely expressed views of the American broadcast and cable viewing public. “Unless parents explicitly consent, [the Act] inhibits the transmission of adult cable channels to children whose parents may be unaware of what they are watching, whose parents cannot easily supervise television viewing habits, whose parents do not know of the ‘opt out’ rights, or whose parents are simply unavailable at critical times. In this respect, sec. 505 serves the same interests as the laws that deny children access to adult cabarets or X-rated movies [529 U.S. 803].” FINAL THOUGHTS While such deep-seated factors as free speech considerations are certainly at work in U.S. v. Playboy Entertainment Group, the actual determinant remains in the realm of technology—in this instance an effective signal bleed preventive. Given the language of the majority opinion, it is reasonable to conclude that the Court’s majority might not be so sanguine in applying the ‘compelling interest’ argument in a future case, in the event that evolving technology undermined familial efforts at electively restricting certain cable reception in the home. Works consulted in the preparation of this report Beebe, B., Parental initiative in the age of signal bleed: Playboy Entertainment Group v. United States, 30 F. Supp. 2d 702 (D. Del. 1998), The Yale Law Journal, Vol. 109, No. 3, December 1999, pp 627-634 Mauro, T., Channel-surfing Supreme Court takes on ‘signal bleed’ dispute, First Amendment, June 22, 1999 Playboy Entertainment Group, Inc., In the Supreme Court of the United States: United States, et al., Appellants v. Playboy Entertainment Group, Inc. [on appeal form the United States District Court for the District of Delaware], Brief amicus curiae for the appellee, September 24, 1999 U.S., Congress, Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 136, 1996 U.S., Department of Justice/Office of the Solicitor General, In the Supreme Court of the United States: United States, et al., Appellants v. Playboy Entertainment Group, Inc. [on appeal form the United States District Court for the District of Delaware], Reply brief for the appellants, No. 98-1682, October 1999 U.S., District Court, Playboy Entertainment Group v. United States, 30 F. Supp. 2d 702 (D. Del. 1998), prob. juris. Noted, 119 S. Ct. 2365 (June 21, 1999) (No. 98-1682) U.S., Federal Communications Commission [FCC], Commission will not enforce or implement section 505 of the Telecommunications Act of 1996 as result of court order, Report No. CS 96-17, March 13, 1996 U.S., Supreme Court, United States, et al., Appellants v. Playboy Entertainment Group, Inc. [on appeal form the United States District Court for the District of Delaware], 529 U.S. 803, May 22, 2000 Read More