United States v. Playboy Entertainment Group, Inc.-Sexually Explicit Signal Bleed and § 505 of the CDA: Unable to Overcome Strict Scrutiny...But Will Strict Scrutiny be Able to Overcome the Future?

• Author: Craig L. Leis
• Pages: 861-910

Page 861

I Introduction

Sex. It seems to be everywhere. Sex is regularly featured in movies, daytime and primetime television programs, music, and advertisements. Many would argue that it is the sex and violence on television that is ruining the youth of America, desensitizing them and transforming them into deviants. Others would suggest that Americans are too uptight about human sexuality and greater exposure would cause Americans' attitudes toward sex to be more consistent with the attitudes of the rest of the world. Either way, the increased exposure of sex in American culture has everyone's attention, including members of Congress. Congress has been hard at work to limit or ban society's access to indecent, sexual speech in the name of protecting the youth of America.¹ It was in this vein that Congress enacted section 505 of the Communications Decency Act of 1996.² Section 505 was designed to protect children from sexually explicit "signal bleed"; the "partial reception of video images and/or audio sounds on a scrambled channel."³ Section 505 requires cable television providers that carry channels "primarily dedicated to sexually-oriented" or otherwise indecent programming to "fully block" the audio or video portions of the channel so that no cable subscriber receives it.⁴ Due to the overwhelming costs to cable providers to switch to consistently effective blocking technology,⁵ cable providers were forced to limit transmission of adult-oriented cable programming to the hours between 10:00 p.m. and 6:00 a.m.⁶

Fortunately, the First Amendment poses a substantial barrier for overzealous legislators who seek to censor indecent speech based on thePage 862 content of its message.⁷ "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal."⁸ Content-based restrictions of speech pose the inherent risk that the Government does not seek to address a legitimate goal, but instead seeks to "suppress unpopular ideas or information."⁹ A content-based restriction of speech generally must meet strict scrutiny.¹⁰ Strict scrutiny requires that a content-based restriction of speech, such as section 505, be narrowly tailored to promote a compelling interest. Therefore, the restriction must be the least restrictive means to further the compelling interest.¹¹ The United States Supreme Court's decisions to apply strict scrutiny to content-based restrictions of speech are limited by the type of medium in which the indecent speech was communicated.¹² This context limitation has led to confusion and a lack of predictability with regard to developing technology. Due to a prior decision of the Supreme Court, the test for a content-based restriction of speech disseminated by cable television was in doubt.¹³ The Court's decision in United States v. Playboy Entertainment Group, Inc.¹⁴ resolved the question that the Court had declined to answer earlier; a content-based restriction of indecent speech in the context of cable television must satisfy strict scrutiny.¹⁵

In Playboy, all members of the Court agreed on strict scrutiny as the proper constitutional standard to be applied to section 505.¹⁶ The majority and dissent differed markedly in their analysis of whether section 505 had,Page 863 in fact, satisfied strict scrutiny.¹⁷ The majority was correct in holding section 505 to be an unconstitutional content-based restriction in violation of the First Amendment.¹⁸ The Government failed to prove that signal bleed was a significant problem throughout the nation that would justify the Government's extremely restrictive regulation.¹⁹ More importantly, another less restrictive alternative existed to section 505 in the form of section 504 of the Communications Decency Act.²⁰ Section 504 allows for parents to actively participate in their child's supervision by requesting the cable provider block the adult channel from entering their home.²¹ Section 504 allows parents to protect their children from exposure to sexually explicit signal bleed without infringing on other individuals' rights to receive constitutionally protected speech.²² Although the Court's decision in Playboy restored some predictability to the role of strict scrutiny in the First Amendment, it also implied that the future integrity of strict scrutiny might be in doubt.

II Relevant Precedent

A Miller v. California

Although the U.S. Supreme Court had already determined in 1957 that sexually explicit material that was obscene garnered no First Amendment protection,²³it was not until Miller v. California ²⁴ in 1973 that the Court formulated the test for obscenity that is still used.²⁵ In Miller, the defendant was convicted of violating section 311.2(a) of the California Penal Code,²⁶ which stated that any person who sent by mail or brought obscenity into the state for sale or distribution would be guilty of a misdemeanor.²⁷ The defendant had aggressively marketed sexually explicit videos and books by mailing unsolicited brochures, which contained pictures depicting men and women engaging in a variety ofPage 864 sexual activities.²⁸ The Court reaffirmed the principle that obscenity did not deserve First Amendment protection,²⁹ and then outlined a three-prong test for obscenity. To determine if material is obscene under Miller, the trier of fact must first determine that the material, taken as a whole, appeals to the prurient interests of an average person, applying contemporary community standards.³⁰ Second, the material must be "patently offensive" as defined specifically by the state's obscenity statute.³¹ Finally, the material must lack "serious literary, artistic, political, or scientific value" when examined as a whole.³²

B Federal Communications Commission v. Pacifica Foundation

Five years after Miller, the Supreme Court held in FCC v. Pacifica Foundation³³ that the Government could prohibit the use of indecent speech in the context of broadcast media.³⁴ The Court upheld the ability of the Federal Communications Commission to prohibit and punish indecent language over television and radio.³⁵ In Pacifica, a radio station in New York made an afternoon broadcast of comedian George Carlin's twelve-minute monologue entitled "Filthy Words."³⁶ The monologue contained the continuous use of several words unfit for broadcasting.³⁷ A father complained to the FCC after hearing the broadcast while driving with his son.³⁸ The FCC responded with a declaratory order holding that Pacifica could be sanctioned.³⁹ The Commission based its authority to regulate indecent speech on "18 U.S.C. 1464 (1976 ed.), which forbids the use of 'any obscene, indecent, or profane language by means of radio communications'" and provided for a penalty of up to $10,000 and/or imprisonment up to two years.⁴⁰

Page 865

In holding that the broadcast was indecent, the Commission identified several words that referred to excretory or sexual activities or organs and determined that the repetitive use of those words in the afternoon when children were likely to be in the audience was patently offensive.⁴¹Pacifica argued that the broadcast was not indecent within the meaning of 1464 due to the absence of "prurient appeal."⁴² The Supreme Court rejected this argument, holding that prurient appeal is an element of obscenity, but the normal definition of indecent is "nonconformance with accepted standards of morality."⁴³ The words "obscene," "indecent" and "profane" in 1461 were written in the disjunctive, implying each has a separate meaning.⁴⁴ Therefore obscene, indecent, or profane speech would qualify under 1464. "Indecent" was not synonymous with "obscene."⁴⁵The Court further stated that of all forms of communication, broadcasting has received the most limited First Amendment protection.⁴⁶

The Court found two important reasons for allowing less protection in the context of broadcasting.⁴⁷ First was the "uniquely pervasive presence" of the medium in the lives of all Americans, which allows indecent material broadcast over the airwaves to reach beyond...