High Court Voids Most of Cable TV Law Curbing Smut

In another broad defense of the right to free speech, the Supreme Court on Friday struck down most of a 4-year old law that required cable television operators to restrict sexually explicit programs on special channels that are open to the public.

The court agreed on the “need to protect children from exposure to patently offensive sex-related material” but noted that parents can block sexually oriented channels by calling their local cable company. And it found only a “few borderline examples” of indecent conduct on local “public access” channels.

For these reasons, Congress went too far when it told cable operators to “police” their programming on these special channels, the high court said.

“The 1st Amendment embodies an overarching commitment to protect speech from government regulation,” wrote Justice Stephen G. Breyer for the court.

As a practical matter, the court’s rulings in three separate votes leave it mostly to parents to supervise what their children see on TV.

“These decisions should be made by parents, not by the government through censorship regulations,” said American Civil Liberties Union attorney Marjorie Heins, who represented a broadcaster that challenged the 1992 law.

What Friday’s ruling means for “indecency” on the Internet is unclear. The splintered decision in the cable case yielded six opinions covering 118 pages, and several justices made it clear that they did not want to commit themselves in advance to deciding a case that has not yet arrived.

But it is expected to arrive soon. The Justice Department said Friday it will ask the Supreme Court to revive a new law that seeks to protect children from “indecent” material on the Internet that was struck down two weeks ago by a panel of federal judges in Philadelphia.

The court will take up the issue in the fall. It is expected to issue its final decisions on Monday and adjourn for the summer.

Friday also featured two other free-speech rulings. The court said that local officials may not retaliate against independent contractors who criticize them in public nor may they penalize them for contributing money to the officials’ political opponents.

By a 7-2 margin, the justices said independent contractors have the same rights as government employees not to be punished for their political views.

The cable TV dispute did not concern most of what is seen on these systems. As a general rule, cable operators can decide whether to carry programs or channels that might be offensive to their viewers.

However, Congress in 1984 required cable systems to set aside a few channels that would be open to the public or could be leased by those who would pay to get their message out. What appeared was up to the programmers and performers.

Public access channels became the amateur hour of the air, but lawmakers also heard reports of nudity and lewd talk on these channels. In New York City, the leased channels became a haven for late-night sex programs such as “Midnight Blue.”

In response, in 1992 Congress amended the law to say that cable operators can forbid “patently offensive” sex shows on leased channels. The law also required them to prohibit “any programming which contains obscene material [or] sexually explicit conduct” on public access channels.

The law was challenged on free-speech grounds, not by cable operators but by programmers and public interest groups that have used these special channels.

Defending the law, Clinton administration lawyers made two arguments. First, cable operators are simply being given “editorial control” over their own systems--which does not violate the 1st Amendment, they said. Second, the government has a “compelling interest in protecting the well-being of children.”

While the case divided the justices, a majority rejected both arguments.

On a 5-4 vote, the court left the public access channels free of regulation by cable operators. It “could radically change present programming” arrangements if cable companies were given the power to oversee what appears on these free-form programs, the court said. This category also includes local educational and government programs.

On a 6-3 vote, the justices struck down a second provision that required cable operators to block sexually explicit leased channels unless a subscriber asked for them in writing 30 days in advance. Because a new law essentially reverses that process--requiring cable companies to block such programming only when a subscriber requests it--there is no need for the old law, the court said.

On a 7-2 vote, the court upheld the provision that “permits cable operators either to allow or to forbid the transmission of patently offensive sex-related materials on leased channels.”

The votes came in the case of Denver Area Educational Telecommunications Consortium vs. FCC, 95-124.

Not surprisingly, the mixed result produced a mixed bag of reactions.

The conservative Family Research Council hailed the ruling because it “frees cable operators to refuse pornographic programs.” By contrast, the liberal People for the American Way said the decision, coupled with the recent ruling against the new Internet law, “delivers a real one-two punch to the religious right, which has prompted these censorship attempts.”

For their part, the justices seemed particularly adamant on not deciding too much in a world of rapidly changing communications technology.

In a “new and changing environment,” Breyer said, it is vital not “to declare a rigid single standard, good for now and for all future media and purposes.”

Justices Anthony M. Kennedy and Ruth Bader Ginsburg would have gone further and struck down all the provisions as clear free-speech violations.

Even the three most conservative members of the court--Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas--did not reject the free-speech argument entirely. Rather, they said the claim should be brought by cable operators, not by others who simply offer programming on a cable system.

The two free-speech rulings on independent contractors show the continuing strength of the 1st Amendment principle in the high court.

One case involved a suburban Chicago towing firm whose owner refused to contribute to the mayor’s reelection. He was then allegedly barred from getting towing referrals.

In the case (O’Hare Truck Service vs. Northlake, 95-191) the court revived his lawsuit and said the government cannot “retaliate against a contractor [for] the expression of political allegiance.”

In the second case (Board of County Commissioners of Wabaunsee County, Kan., vs. Umber, 94-1654), the court upheld a free-speech lawsuit filed by a trash hauler who lost a county contract after he criticized the board in a letter to the editor of a newspaper.