First Amendment Victory

The U.S. Supreme Court has interpreted the First Amendment of the Constitution to mean that in general, when it comes to sexually explicit expression, only obscenity may be barred. As a result, the court properly decided Monday not to hear a case involving a Utah law that banned indecent--but not obscene--material from cable TV. It let stand a lower court ruling that found the statute unconstitutional.

This is an important decision that makes clear the rights of cable operators and of viewers who want to see such fare. It also means that cable TV enjoys greater First Amendment freedom than broadcast TV does.

In an earlier case (FCC vs. Pacifica), the court held in 1978 that a radio station could be punished for broadcasting a speech that contained seven “filthy words.” The court based its ruling in that case on the “pervasive presence” of the broadcast media in society. “Of all forms of communication,” the court said, “it is broadcasting that has received the most limited First Amendment (protection). . . . Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be let alone plainly outweighs the First Amendment rights of an intruder.”

The state of Utah relied on that decision when it passed a law barring indecent material from cable TV. But U.S. District Judge Aldon J. Anderson rejected the state’s argument. The law took in too much, he said, and it was so vaguely worded “as to chill legitimate expression.” The 1978 decision applies only to over-the-air broadcasts, he said, not to cable, which viewers invite into their homes by subscription.

The 10th U.S. Circuit Court of Appeals agreed with Anderson, and now the Supreme Court, by a 7-2 vote, has effectively agreed with him too. Viewers who do not want to see such material do not have to, and they have the ability to keep their children from seeing it. But the court’s action means that they do not have the power to prevent others from seeing it. Which is just the way things should be.