On May 22, the Supreme Court [U.S. v. Playboy, No. 98-1682] invalidated a federal law [47 U.S.C. 561] that would have required cable TV operators to either fully scramble the signals for their porn channels or to provide the programming after 10 p.m.

In so doing, the Court crippled even further the power of government to "maintain a decent society" and also undermined its power to assist parents in their difficult task of raising children in an increasingly morally debased society and to protect children who do not enjoy the protection of responsible parents.

The signal bleed law that the Supreme Court invalidated in U.S. v. Playboy ("Playboy case") would have alleviated a problem that was both long standing and widespread. Morality in Media has never had a large national membership, but since the early 1980s, Morality in Media Newsletters have often included reports of the porn channel "signal bleed" problem, including the following:

"Following is typical of letters received in the MIM offices every day, this from Norfolk, Virginia: 'We have a Playboy Channel that is not scrambled very well. I have seen a great deal of nudity just changing the stations. I have complained to my cable company and they said they would scramble it better. I watched the channel the other day to see if they had, and it was still so clear that I could follow the programming without subscribing to it....'" [May 1983 issue]

"[O]n the day the grand jury indictments [for obscenity violations] were handed up, the Channel had been off the air for 3 weeks because of a 'technical problem.' The problem was the same one plaguing cable TV customers all over the country: the Playboy Channel signals were 'bleeding' over onto the TV sets of many who do did not subscribe." [June 1983 issue]

"Trouble for the Playboy Channel also began brewing recently in...New York after Orange County Cablevision, Inc. announced the...introduction of the 'sophisticated adult service.' Even before that date, 'gutter' words and scrambled, but still recognizable, films containing 'lesbian acts, menage a trois scenes, and other explicit sexual acts' were bleeding over onto the sets in non-subscribing homes." [Feb. 1984 issue]

"During the last two years, Morality in Media has received many calls from individuals complaining that the unordered signal for...pornographic films was inadequately scrambled and could be viewed and/or heard on their cable TV sets. Most of the calls involved the 'Spice' Channel carried by TCI, although the signal for the Playboy Channel also has a history of being inadequately scrambled. Many of the callers were parents, and in several instances children had been exposed to the films. When the individuals complained to their local cable operators, they were told they could obtain a device to block the offending channel. Such devices, however, didn't always block the signal." [March 1995 issue]

"Currently, three networks share time on one channel...These are Odyssey, EWTN and Spice...Although Cablevision states that Spice is [pay-per-view], and the signal is scrambled when on, the audio is clear as a bell. The video breaks through with some distortion. If I were to have a specific block on Spice, I would lose Odyssey and EWTN." [January 2000 issue]

The signal bleed law prohibited the transmission of inadequately scrambled signals only between 6 a.m. and 10 p.m. In 1996, the Supreme Court refused to hear an appeal in a case upholding a restriction on broadcast indecency between 6 a.m. and 10 p.m. In Denver Area Consortium v. FCC (1996), the Court also indicated that the same concerns that justify regulation of broadcast indecency (i.e., children and the privacy of the home) justify regulation of cable TV indecency.

Not only was the signal bleed law restricted to "indecent" programming, it applied only to channels "primarily dedicated to sexually explicit programming." The twin requirements assured that only porn channels must comply; and the Supreme Court has said that content similar to the cable porn programming was "at the periphery of First Amendment concern." [See Young v. American Mini Theatres (1976); FCC v. Pacifica (1978); City of Erie v. Pap's A.M. (2000)]

It was technologically possible for cable operators to comply with the signal bleed law. Many cable systems completely scramble their signals. Other cable systems voluntarily restrict "adult programming" to the hours of 10 p.m to 6 a.m. Costs and profits were an issue, but in City of Renton v. Playtime Theatres (1986), the Court said, "The inquiry for First Amendment purposes is not concerned with economic impact."

Unlike the law at issue in Sable Communications v. FCC (1989), involving a ban on indecent telephone communications, the signal bleed law did not ban the "expression." It said, in so many words, that garbage must either be packaged so that it doesn't stink up someone else's home or be put on the street only after 10 p.m.

The question of whether children can be harmed by exposure to pornography and other indecent material appeared settled by the Court. [See, e.g., Ginsberg v. N.Y. (1968); FCC v. Pacifica] A description of some of the programming that bleeds uninvitedly into millions of homes can be found in the Government's brief in the Playboy case, at page 5, note 2:

"The Spice network depicts such activities as 'female masturbation/external,' 'girl/girl sex,' 'oral sex/cunnilingus,' 'explicit language,' 'wide shot penis/flacid,' and 'wide shot' vagina.'...[P]rogramming on the even more explicit Spice Hot network depicts 'female masturbation with penetration,' 'male masturbation,' 'medium shot penis/erect,' 'oral sex/fellatio,' 'vaginal penetration/objects,' 'vaginal penetration/penis,' and 'vaginal penetration/tongue.'"

One would have thought that a majority of the Supreme Court would recognize the difference between "ideas for the bringing about of political and social changes desired by the people" and "hard-core sexual conduct for its own sake, and the ensuing commercial gain" [Miller v. California (1973)].

One would have also thought that when the Justices balanced the claimed right to cablecast porn, at all hours of the day and night, into millions of homes that didn't subscribe to it against the rights of homeowners, parents and of every American to live in a "decent society," [Paris Adult Theatre I v. Slaton (1973)], a majority would have come down on the side of the American people.

In brief, the majority refused to recognize any distinction between a government ban on a political speech in a public square and a government regulation of pornographic programming that pours uninvitedly into the privacy of the home, where it is readily accessible to children, even those too young to read. In so doing, the Court ignored the history of the First Amendment, many of its own decisions and common sense.

"The distinction between laws burdening and banning speech is but a matter of degree," wrote Justice Kennedy, who delivered the opinion of the Court. "The government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans."

He added, "It is rare that a regulation restricting speech because of its content will ever be permissible."

The majority treated the findings of fellow judges in the federal District Court as if they were "the truth," while setting aside as inaccurate or irrelevant the substantial evidence submitted by the Government. In response to the majority's conclusion that the Government "has not convinced us that [signal bleed] is a pervasive problem," Justice Breyer in his dissent wrote, "And if...the majority still believes the Government has not proved its case, then it imposes a burden...beyond that suggested in any other First Amendment case of which I am aware."

The majority faulted the Government for failing to prove that a "less restrictive alternative" -- i.e., "a well-promoted blocking provision" -- was ineffective. But the majority did not explain how it expected the Government "to prove" a negative -- namely, that voluntary use of screening technology doesn't work.

Did the majority have in mind some sort of laboratory experiment? A field test in cooperation with a local cable operator? If the latter, how many children should have been used as guinea pigs -- and for how long? What if a "well-promoted blocking provision" proves more effective in telling kids where the porn is than in prompting their parents to request blocking?

Why did the majority apparently assume that virtually all parents will do what they are suppose to, if adequately informed??

Were the majority's law clerks unaware that in 1978 the Supreme Court upheld a ban on broadcast indecency, despite the availability of "a device which will permit them to 'program' their home television set in advance so that it will only receive material selected by the parent" (Pacifica, Brief for Respondent, p. 49, note 40)? Why did the majority discount Dial Info Services v. Barr (2nd Cir. 1991), where the Court of Appeals determined that "voluntary blocking" would not be effective?

Was the majority unaware that availability of blocking technology as a solution to the signal bleed problem is nothing new? In November 1984, Morality in Media's Newsletter reported:

"Playboy Channel is planning a lockout box that will use a rabbit-head key and sell for under $10. The boxes will be tested soon...If successful, Rainbow Programming, which markets Playboy...will begin advertising the lockout box."

As Justice Breyer pointed out in his dissent, the less restrictive means "test" can in fact be "'no test at all.'" It can instead become the means by which a judge can "'enable himself to vote to strike down legislation.'"

The dissent also disagreed strongly with the majority's implication that the Government's "independent interest in...preventing, say an 8-year-old from watching virulent pornography without parental consent--might not be compelling."

Reasonable persons can perhaps differ as to whether our nation's founding fathers intended the Supreme Court to have the final say as to what the Constitution means and whether they intended to give the courts power to overturn acts of Congress. But it is clear that all three branches of government, including the courts, were to be subject to the Constitution.

Undoubtedly, there is often a fine line between interpreting a Constitutional provision -- and rewriting it to reflect the Justices' personal desires and ideologies, irrespective of the history of the provision and the will of the American people.

But the Constitution does not give the Supreme Court the power to amend the Constitution, either officially or by means of specious Court decisions. The power to amend belongs to the people, and it is a power to be used sparingly, not as the only means the people have to keep a rein on the Supreme Court.

There are justices who agree with the ACLU that government should be stripped of most if not all of its power to protect society, family life and children from pornography. But there is a history to the First Amendment [see, e.g., Near v. Minnesota (1931)], and it is clear from history that the First Amendment was never intended to protect pornography [Roth v. U.S. (1957)].

It is also clear that there is a difference between viewpoints, opinions, discussion and debate about sex and the depiction of sex for "its own sake and the ensuing commercial gain" [Miller v. California]. It is also clear that there is a compelling government interest in shielding children from indecent programming and that there is a difference between a public street and the privacy of the home [FCC v. Pacifica].

Through their elected representatives in Congress and in state and local legislative bodies, the American people have also expressed their views about obscenity and indecency. They don't agree that pornography is harmless. They don't agree that all pornography should be legal and that all legal restraints on pornography to protect children should be done away with.

A majority of Supreme Court Justices don't always have to agree with the American people about pornography and the well-being of children, but they do have to abide by the Constitution, just as the other two branches of government must abide by it.

Supreme Court Justices are appointed for life. The reason is obvious: it the job of judges to administer justice, irrespective of whether a just decision is popular at the moment. And one would therefore think that individuals would be appointed to the Supreme Court because of their proved ability to apply (not make) the law to complex factual situations inorder to arrive at just decisions.

But individuals are often appointed to the Court because of their gender, religion or race, judicial philosophies and political views. And the Supreme Court often arrives at its decisions in much the same fashion as Congress often determines the outcome of legislative proposals. It's about power and personal preferences.

I might add that I do not understand how the Supreme Court can, with one swipe of its pen, uphold a law protecting adult women in the work place from vulgar, explicit sex talk and pictures while, with another swipe of its pen, strike down a law intended to protect the privacy of the home and children from similar talk and pictures. Does the Constitution mandate the different treatment, or is it just one more example of politically correct hypocrisy?

I was asked what the likely effect of the Playboy case will be. It would, of course, be a mistake to put the Supreme Court in a box, but Justice Kennedy, who delivered the opinion of the Court, wrote: "It is rare that a regulation restricting speech because of its content will ever be permissible."

It would seem a fair assessment, therefore, to say that the majority's decision will make it difficult, if not impossible, for government to take effective steps to shield children from sex material on TV or the Internet unless the material is obscene for adults. And federal obscenity laws are no longer enforced.

Clearly, the Constitution, as our nation's founding fathers understood the document and as the Supreme Court itself understood it for almost 200 years, did not require such a result.

How then are we to understand the decision? Are we to believe the majority is wiser than the dissenting Justices? Wiser than the vast majority of Justices who have served on the Supreme Court in the past? Wiser than Congress? Wiser than the American people?

As I was on may way home on the day when the majority of the Court concluded that the First Amendment gives pornographers and their media partners the right to beam explicit sex talk and action into millions of homes that didn't order it, I was reminded of the title of a book I read many years ago, "The Arrogance of Power."

If my memory is correct, the book was about the abuse of U.S. power in foreign affairs. I don't remember what the abuses were or what advice the author, former U.S. Senator J.W. Fulbright, gave. I'm sure he didn't advise withdrawal from foreign affairs! I would hope he recommended a strong dose of humility, along with a dire warning about the consequences of abusing a position of power. It would also be very good advice for the Supreme Court.

Top of This Page

Obscenity Enforcement Page