On Monday, the U.S. Supreme Court decided in a 5-4 ruling that restricting sexually oriented programming on cable television is unconstitutional. The decision came after Playboy Magazine challenged a 1996 telecommunications law designed to shield children from sexually explicit material. The law required cable companies to either block out the channel entirely or restrict sexually oriented programming to the hours when children are least likely to be watching, which the Federal Communication Commission set between 10 p.m. and 6 a.m. Although preventing children and nonsubscribers from viewing pornographic material is a reasonable objective, the original law was too general and deserved to be overturned.
The FCC first introduced the law as part of the Telecommunications Act of 1996. Some cable companies were unable to afford fully scrambling or blocking out sexually oriented channels, often providing curious children an accidental, or sometimes intentional, glimpse into the adult world of pornography. When cable operators do not intentionally and thoroughly block out a channel, viewers might be able to discern obscure figures and hear clear audio because of signal bleed. In restricting the hours adult programming may be broadcast to times when children are usually asleep, regulators previously felt protecting the innocent supersedes the First Amendment. However, there are more appropriate ways to protect children while still preserving free speech.
In 1998, a Federal District Court in Delaware ruled that a section in the telecommunications law could protect children and nonsubscribers adequately without restricting free speech. Section 504 of the act requires that cable operators provide customers with a device that fully scrambles the signal, eliminating signal bleed. As long as a less restrictive alternative exists, legislators need not curtail free speech to meet a presumably worthy agenda. If parents are sincerely interested in protecting their children from objectionable material, they may obtain a scrambling device, which is preferable to restricting an adult’s right to view what he or she wishes.
It is understandable that U.S. courts become squeamish when politicians try to regulate free speech. Although usually well intentioned, legislators often meddle unscrupulously with the content of the speech — content the First Amendment was designed to protect. Adam Samaha, who teaches a First Amendment course at the Law School, said, “Congress has used too much of a meat-ax approach” in restricting sexually oriented programming. “They were not surgical enough.” If legislators attempt to restrict speech, they must be very specific, or they will likely see their law repealed by the Supreme Court.
Despite the apparent impact of the law’s repeal, analysts do not expect a significant increase in sexually oriented programming or a quick change in hours such programs are available. Since many stations worry that allowing sex channels to broadcast all day will anger their more conservative consumers and consequently inspire boycotts, few stations will bother altering their services unless these alterations are performed quietly.