High Court Will Hear TV-1st Amendment Case

The Supreme Court announced Monday that it will hear the Clinton administration’s appeal to save a federal law that gives cable television operators, rather than parents, the duty to block sexually explicit programs from children during daytime hours.

The outcome will affect an estimated 70% of households nationwide that receive cable television.

These viewers subscribe to cable providers that have not upgraded their systems to fully block unwanted channels, including the Playboy Channel. These sexually explicit programs show up in some homes as images that are scrambled or fuzzy, but still discernible. Often, the sound comes through clearly.

Three years ago, in response to complaints from parents in California, Congress said cable operators must “fully block the video and audio portion” of these adult programs, or show them only after 10 p.m., when many children presumably are not watching television.

A survey found that 68% of cable companies chose the second option. It was too costly, they said, to revamp their systems to completely block the extra channels.

But lawyers for Playboy challenged the law as a free-speech violation. The adult entertainment company said it was losing $2.5 million a year because of the restriction. It also said millions of American adults were unfairly prevented from viewing sexually oriented programs before 10 p.m.

Playboy lawyers also said they had a better way to accomplish the same goal. Parents could block the unwanted channels by obtaining a “lockbox” for their televisions, they said. This would protect children and give adults the freedom to watch sexually explicit programs whenever they chose.

In December, a three-judge panel in Delaware sided with Playboy and struck down the law as unconstitutional. The 1st Amendment does not allow the government to suppress free expression, the judges said, when other approaches could work just as well. The lower court said cable operators should be required to notify parents of the issue and to offer them lockboxes that would screen out unwanted channels.

Administration lawyers appealed and argued that the need to protect children from pornography outweighs the free-speech rights of adults.

So far, fewer than 1% of cable subscribers have sought blocking devices for their televisions, government lawyers told the court. If the ban on sexually explicit channels were lifted, 29 million children could be exposed to scrambled adult programming on cable TV during the day, a government expert estimated.

The case, known as U.S. vs. Playboy Entertainment Group, 98-1682, will be heard in the fall, with a decision likely a few months later.

In the last decade, the court has had a mixed record in cases involving children, pornography and the media.

On the one hand, the justices upheld regulations that bar over-the-air broadcasters from carrying indecent or sexually explicit programs before 10 p.m.

However, laws involving “dial-a-porn” phone calls and sexually oriented computer transmissions were struck down because the justices were convinced that parents could shield their children from these kinds of pornography.

With about one week remaining before the justices adjourn for the summer, they have 10 cases left to decide. These include three that test who is covered by the federal law protecting workers with disabilities.

But Monday proved to be a light day for decisions. Among other cases, the justices:

* Upheld on a 5-4 vote a death sentence in the first federal death penalty case to reach the court. No one disputed that Louis Jones had kidnapped, sexually assaulted and beaten to death a 19-year-old army private in Texas. The justices differed only over the adequacy of the instructions given the jury that chose death as his punishment (Jones vs. U.S., 97-9361).

* Ruled that police who have reason to believe a car contains drugs do not need a warrant to stop it and search inside, even when they have plenty of time to obtain a warrant. Usually, when police search a home, they must obtain a warrant from a magistrate first, but not so with a car. The 9-0 ruling overturned a Maryland court’s decision to throw out the drug evidence found when police were tipped off that a car coming from New York City contained cocaine (Maryland vs. Dyson, 98-1062).

* Refused without comment to consider the claim that federal prosecutors are guilty of bribery when they offer a witness lenient treatment in exchange for his trial testimony. A three-judge panel in Denver last year shocked prosecutors nationwide when it handed down a decision casting doubt on this long-standing practice. But the full U.S. 10th Circuit Court of Appeals intervened and reversed the panel’s decision. Lawyers for the defendant appealed the question to the high court but got nowhere (Singleton vs. U.S., 98-8758).