OCTOBER TERM, 1999
appeal from the united states district court for the district of delaware
No. 98-1682. Argued November 30, 1999—Decided May 22, 2000
Section 505 of the Telecommunications Act of 1996 requires cable television operators providing channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as between 10 p.m. and 6 a.m. Even before § 505's enactment, cable operators used signal scrambling to limit access to certain programs to paying customers. Scrambling could be imprecise, however; and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as "signal bleed." The purpose of § 505 is to shield children from hearing or seeing images resulting from signal bleed. To comply with § 505, the majority of cable operators adopted the "time channeling" approach, so that, for two-thirds of the day, no viewers in their service areas could receive the programming in question. Appellee Playboy Entertainment Group, Inc., filed this suit challenging § 505's constitutionality. A three-judge District Court concluded that § 505's content-based restriction on speech violates the First Amendment because the Government might further its interests in less restrictive ways. One plausible, less restrictive alternative could be found in § 504 of the Act, which requires a cable operator, "[u]pon request by a cable service subscriber . . . without charge, [to] fully scramble or otherwise fully block" any channel the subscriber does not wish to receive. As long as subscribers knew about this opportunity, the court reasoned, § 504 would provide as much protection against unwanted programming as would § 505.
Held: Because the Government failed to prove § 505 is the least restrictive means for addressing a real problem, the District Court did not err in holding the statute violative of the First Amendment. Pp. 811-827.
(a) Two points should be understood: (1) Many adults would find the material at issue highly offensive, and considering that the material comes unwanted into homes where children might see or hear it against parental wishes or consent, there are legitimate reasons for regulating it; and (2) Playboy's programming has First Amendment protection.
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