Curbs on Cable TV Sex Ruled Invalid : High Court Backs Decision That States May Not Limit Non-Obscene Material

The Supreme Court ruled Monday that states may not regulate sexually explicit cable television programs that are not legally obscene.

On a 7-2 vote, the justices refused to hear a plea from Utah and 10 other states that said that they wanted to stop the “assault of cablecast indecency upon unwilling adult viewers and . . . impressionable children.”

A spokesman for the cable TV industry, whose broadcasts now reach 42 million homes nationwide, said the decision assures that “people can watch in their own homes what they can see in their neighborhood movie theaters.”

In its recent decisions, the high court has given the growing cable industry broader freedom under the First Amendment than is accorded traditional television, which is regulated by the Federal Communications Commission.

Public Airwaves

Cable industry attorneys have successfully argued that their programs go only to paid subscribers and are transmitted through private lines, whereas television is freely available and uses the public airwaves.

“Cable has been viewed as akin to an electronic publisher with First Amendment protections that are similar to newspapers,” said Steve Tuttle, spokesman for the National Cable Television Assn. in Washington.

This case arose in 1983, when the Utah Legislature banned the broadcast of “indecent material” by cable TV systems from 7 a.m to midnight and allowed state and county prosecutors to levy fines of as much as $10,000 for repeat offenders.

Indecent material was defined to include nudity or sexual activity, “actual or simulated . . . which the average person applying contemporary community standards . . . would find is presented in a patently offensive way.”

Utah officials said they did not seek to ban such broadcasts but to limit them to late night hours when children would not be watching.

But, in 1985, U.S. District Judge Aldon J. Anderson threw out the law, declaring it “unconstitutionally overbroad and vague, and void on its face.” Only legally obscene material may be regulated or banned, the judge said.

“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.

Upheld on Appeal

Last year, the U.S. 10th Circuit Court of Appeals upheld this ruling and ordered Utah to pay attorneys’ fees for the cable companies that challenged the law.

In urging the Supreme Court to overturn this decision, lawyers for Utah said that states should be permitted to limit cable broadcasts to protect children and “adult viewers who do not wish to be assaulted by patently offensive material.”

Arizona, Kansas, Mississippi, Missouri, New Hampshire, New Mexico, Pennsylvania, South Carolina, Washington and West Virginia joined Utah in the appeal.

Attorneys for the cable systems noted that “R-rated” movies, many of which depict sexual activity and could have been affected by Utah’s law, are popular among their viewers and that the viewers are paying to receive them.

In earlier rulings, the justices have defined as obscene material that appeals primarily to prurient interest, is patently offensive and entirely lacks literary, artistic or social value.

On Monday, the high court refused to hear Utah’s appeal and instead issued a one-sentence order affirming the lower court ruling. Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor voted to hear the case (Wilkinson vs. Jones, 86-1125).

James P. Mooney, president of the cable TV association, said that cable systems do not present hard-core, “X-rated” movies.

‘Mainstream Movies’

“What’s involved here is not obscenity. It’s mainstream movies for grown-ups who want to make their own judgments about what they can watch,” Mooney said.

Association spokesmen said that nearly half of the American households with television sets subscribe to one of the more than 7,000 local cable TV systems.

In other actions, the court:

--Refused to throw out child-stealing charges against Betty Batey, a Pentecostal Christian from the San Diego, Calif., area, who had taken her son from his homosexual father in 1982. The woman’s attorneys contended that the charges against her in Colorado and in California amounted to unconstitutional double jeopardy, although a California court had ruled that the charges did not overlap because one was a criminal charge and the other civil (Batey vs. California, 86-1184).

--Ruled that a judge may suspend extra prison terms for persons who commit a crime while awaiting trial on a previous charge. The 7-2 decision reverses a 1986 federal appeals court ruling in New York that found that a judge had no authority to drop a second two-year prison term for a woman who was caught selling heroin while free on bond for the sale of cocaine. The court ruled that a statute mandating a minimum penalty for new crimes committed by defendants who were on bond did not strip the judge of his legal discretion to suspend sentences (Rodriguez vs. United States, 86-5504).