Justices Curb States’ Power to Ban ‘Indecent’ Cable TV : 7-2 Ruling Big Setback for Censors

The Supreme Court today tied the hands of state officials seeking to ban sexually explicit material and nudity from cable television.

By a 7-2 vote, the court struck down a Utah law that prohibited “indecent” programs on cable broadcasts except during the hours of midnight to 7 a.m.

Utah officials, conceding that their drive against sexually explicit material has been thwarted, said their only hope may be a change some day in the composition of the high court.

The court issued a one-sentence decision upholding a federal appeals court ruling. Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor voted to hear arguments in the case, but four votes are needed to grant such review.

Wait and See Attitude

Utah Atty. Gen. David Wilkinson said, “I would think most legislatures are going to want to wait and see what changes take place on the court in the next two or three years before they do anything further.”

Ten states joined Utah in urging the Supreme Court to permit regulation of sexually explicit material on cable TV. They are Arizona, Kansas, Mississippi, Missouri, New Hampshire, New Mexico, Pennsylvania, South Carolina, Washington and West Virginia.

The Utah Legislature passed the Cable Decency Act in 1983, making it a public nuisance for cable TV to show indecent material. The law carried fines of up to $10,000 for repeat offenders.

The statute defined indecent material to include “the visual or verbal depiction or description of human sexual or excretory organs or functions . . . exposure of genitals, pubic area, buttocks, or the showing of any portion of the female breast below the top of the nipple.”

The law banned such material if “the average person applying contemporary community standards for cable television . . . would find (it) is presented in a patently offensive way.”

Midnight to 7 a.m. Excepted

The Utah attorney general’s office, in setting guidelines for the law, imposed the ban for all hours except midnight to 7 a.m.

U.S. District Judge Aldon J. Anderson declared the law unconstitutional in 1985 after cable companies sued. The U.S. 10th Circuit Court of Appeals upheld the ruling last September.

Anderson said the Utah act seeks to ban more than obscenity and violates the Constitution because it is too broad.

“The scope of the language is so uncertain as to chill legitimate expression in a way that the (Constitution’s) overbreadth doctrine forbids,” he said.

The Supreme Court ruled in 1978 that the Federal Communications Commission may restrict the broadcast of indecent language over the airwaves. Anderson said there are many distinctions between Utah’s law and the FCC action.

Invited Into Homes

Cable TV viewers, unlike radio listeners, invite the programming into their homes by being paid subscribers, Anderson said. Also, he said, a limited number of radio frequencies makes that medium subject to greater regulation. Cable TV is not limited to a finite number of channels the way over-the-air broadcasting is, he said.

In other action, the court:

--Rejected an appeal by major league baseball players seeking a legal right to millions of dollars in revenue from televised games. The court let stand a ruling that major league baseball’s 26 team owners have a copyright on the telecasts.

--Agreed to hear a Reagan Administration appeal aimed at making it easier for the government to deport illegal aliens. The court said it will review a decision ordering further administrative hearings for a California man trying to avoid return to his native Ghana.

--Let stand a ruling from Pennsylvania that states may place strict controls on the sales and marketing practices of motion picture distributors.