Parental initiative in the age of signal bleed.

• Author: Beebe, Barton
• Position: Television pornography

Playboy Entertainment Group v. United States, 30 F. Supp. 2d 702 (D. Del. 1998), prob. juris, noted, 119 S. Ct. 2365 (June 21, 1999) (No. 98-1682).

"Signal bleed" describes the partial reception of sexually explicit premium cable-television programming in the homes of non-subscribers to that programming.(1) A colloquial term for the often grotesquely distorted images and "assorted orgiastic moans and groans"(2) that are transmitted as a result of inadequate scrambling technology is "Picasso porn."(3) Some have viewed the phenomenon more skeptically as a deliberate "tease."(4) Three years ago, in an effort to protect American children from exposure to indecent signal bleed, Congress enacted section 505 of the Communications Decency Act of 1996 (CDA).(5) Entitled "Scrambling of Sexually Explicit Adult Video Service Programming," section 505 requires cable-system operators either (i) to scramble fully the transmission to non-subscribers of "sexually explicit" or otherwise "indecent" programming on any channels that are "primarily dedicated to sexually-oriented programming,"(6) or (ii) to time-channel the transmission of such programming to a "safe harbor" period between 10 p.m. and 6 a.m.(7) To comply with section 505, most cable operators have resorted to time-channeling rather than bear the greater cost of overhauling their scrambling technology.(8) Since February of 1996, Playboy Entertainment Group has sought a declaratory judgment that the provisions of section 505 violate the First Amendment and injunctive relief preventing their enforcement. In the process, Playboy has been granted a temporary restraining order,(9) denied a preliminary injunction,(10) and granted a permanent injunction.(11) Now, for the second time,(12) United States v. Playboy Entertainment Group(13) is before the Supreme Court.

This case deserves more attention than it has received. Signal bleed represents what may become an all-too-familiar phenomenon: diffusive indecent speech and a technology designed to filter that speech that is only partially effective, that allows traces of indecency to "bleed" through. From the beginning, the hinge on which Playboy has turned is the question of whether a less restrictive fix for signal bleed is available in section 504 of the CDA, which enables cable subscribers to request the complete scrambling of any channel, indecent or otherwise, free of charge.(14) Students of Reno v. ACLU(15) may recognize in this question a conventional dichotomy of First Amendment thinking on indecency filtering: Is the facilitation of parent-initiated filtering sufficient to protect minors from indecent speech, or should providers be required themselves to implement costly, systemic, and possibly ruinous filtering regimes? Underlying both sides of this dichotomy is a more fundamental question, one that confounded the lower courts in Playboy and that has not yet been adequately addressed by the Supreme Court: What degree of parental initiative should First Amendment doctrine demand or expect? The Reno Court evaded this question by betting that "reasonably effective" or "at least as effective" parent-initiated filtering regimes "will soon be widely available."(16) But in section 504 that regime is available. The future of parental initiative is now. Playboy puts Reno's technological meliorism to the test and asks the question that Reno deferred.

This Case Note analyzes and endorses the Playboy district court's innovative, if sometimes inconsistent, approach to the issue of parental initiative. Confronted with parents' near total failure to take advantage of section 504's full-scrambling provisions, the court that issued the permanent injunction in Playboy expanded the concept of parental initiative to include the possibility of parental abstention, or informed parental inaction. This is an important advance in current First Amendment doctrine. As less restrictive parent-initiated filtering mechanisms become "widely available" throughout the electronic media, it is likely that many parents will elect not to use them, and will do so notwithstanding government claims that indecency harms their children. Lest the momentum of Reno be reversed, least-restrictive-alternative analysis needs to be prepared to defend this result. In its development of the concept of informed parental abstention, the Playboy district court demonstrates how this defense may succeed.

I

Though Playboy is properly understood as a sequel to Reno, it arrives at the Supreme Court from a different but no less troubled region of the First Amendment landscape, the "doctrinal wasteland"(17) of the cable-television medium. The current state of the art in First Amendment doctrine relating to cable is Denver Area Educational Telecommunications Consortium v. FCC,(18) a case which one commentator has called "arguably ... the nadir of the Court's First Amendment jurisprudence."(19) The fractured authorities of Denver Area failed to clarify whether content-based regulations of cable television should receive strict scrutiny, as apparently endorsed by Turner Broadcasting System v. FCC,(20) or some lower standard of scrutiny, such as that applied to the radio-broadcast medium in FCC v. Pacifica Foundation.(21) For...