SMUT ISSUE STILL THORN FOR CABLE TV

One person’s smut may be another person’s cable television. That’s the heart of an issue that has been with cable for years and remains one of the medium’s thornier and more vexing problems.

It also appears to be the only cable First Amendment matter that is worthy of attention on Capitol Hill.

A panel of senators and congressmen here Monday told the cable-TV industry that they have little official interest in the editorial rights of the medium but are deeply concerned about the distribution of adult or pornographic programming into the approximately 35 million homes now subscribing to cable.

“Exercise self-restraint, as much self-policing as you can. The public as a whole doesn’t want pornography,” insisted Sen. Strom Thurmond (R-S.C.), powerful chairman of the Senate Judiciary Committee that is currently considering a bill that would impose criminal penalties on broadcasters and cable operators who transmit programs defined as legally obscene.

Thurmond was appearing at a session of the convention of the National Cable Televison Assn., which opened at the Las Vegas Convention Center on Sunday and runs through Wednesday. Joining Thurmond on the panel were: Sen. Howell T. Heflin (D-Ala.), Reps. Hamilton Fish Jr. (D.-N.Y.), Romano L. Mazzoli (D.-Ky) and Patricia E. Schroeder (D-Colo.) and James H. Quello, a member of the Federal Communications Commission.

Heflin, a former Alabama Supreme Court justice, implored the industry to establish “some type of ethical standards” to avoid more stringent legal standards now being contemplated in Washington.

The cable industry faces two potentially serious First Amendment challenges from the Justice Department and the Republican-dominated Senate. Both efforts are centered on the presentation of allegedly obscene programs delivered into subscriber homes by cable-TV systems.

Last month, Atty. Gen. Edwin Meese appointed an 11-member commission to study the problem of pornography on cable.

Also, conservative Sen. Jesse Helms (R-N.C.) has introduced a bill to apply federal criminal obscenity laws to cable TV. Introducing the bill, Helms (himself a former broadcaster who is waging a protracted effort to encourage fellow conservatives to buy CBS Inc.) said: “It’s no secret that the illicit sex industry has in recent years invaded American living rooms through cable telelvision.”

In part, Helms has based his assertion of federal authority in the area on the novel concept that cable programs, like over-the-air TV programs, are delivered over the airwaves when national cable networks distribute via satellites. Until now, however, few legal experts have asserted that the same federal powers apply to satellite delivery as to tradional over-the-air broadcasting.

These two most recent challenges to the presumed editorial freedom of cable operators have come despite an apparent growing willingness in the courts to recognize the industry’s status under the First Amendment.

Since last year’s passage of the Cable Communiations Policy Act, the first federal legislation recognizing cable as an equal player with traditional broadcast TV, four federal courts have ruled that the medium is constitutionally protected from undue government interference.

Two federal cases, one in Utah and another in Florida, have specifically addressed the rights of cable systems to transmit “indecent” or “offensive” programs, although not legally defined obscene ones.

“Cable’s constitutional rights finally are gaining recognition,” said association President James P. Mooney in his opening speech Monday.

“We are now a full-fledged and equal partner in the telecommunications industry,” said Edward M. Allen, chairman of the association. “In case after case, the courts are telling us that we are electronic publishers with First Amendment rights.”