At a time when indecency is a hot topic in congressional legislation and the nascent presidential campaigns, the U.S. Supreme Court has agreed to decide the constitutionality of restrictions on indecent cable television programs.
The court said Monday it will hear a free-speech challenge to a 1992 law, spearheaded by Sen. Jesse Helms, R-N.C., that allows cable operators to prohibit indecent programs on channels leased to independent and local programmers.
The Clinton administration’s Justice Department, defending the regulation, told the court that Helms and others lawmakers wanted to protect children from the harmful effects of indecent television programming.
But a group of cable programmers, media organizations and civil libertarians argues that the regulation’s vague terms will lead to “arbitrary enforcement” and the loss of “important and valuable programming … simply because it may have some sexual content or vulgar words.”
One of the lead challengers, the Denver Area Educational Telecommunications Consortium, produces “The 90s Channel” and has shown segments on self-help gynecological exams, a controversial exhibit of sexually explicit photographs by the late Robert Mapplethorpe and a Japanese fertility festival with marchers carrying images of genitalia.
The regulation, which never has taken effect because of lawsuits, covers only “leased access” channels, which carry shows by independent programmers, and “public access” channels, which are set aside for the public and local education and government groups.
Part of the Cable Television Consumer Protection and Competition Act of 1992, the regulation allows cable operators to ban programming “that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.” If a cable company permits indecent leased-access programming, it must be segregated on a blocked channel and blocked out until the subscriber requests it in writing.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit had struck down most of the regulation as a violation of free speech, but last June, the full appeals court reversed the panel. By a 7-4 vote, the court said the regulation simply allows - rather than “commands” - private cable companies to ban indecent programming. As such, the court said, the regulation is not “state action” to which the First Amendment applies.
Judge A. Raymond Randolph, who wrote for the majority, said the indecency definition essentially tracks the definition of broadcast indecency the court previously has upheld. He said indecency is properly left to the “editorial discretion” and “responsibility” of cable operators.
But Judge Patricia M. Wald, who dissented, asserted that “under the broad definition of “indecency,” … affected speech could include programs on the AIDS epidemic, abortion, childbirth or practically any aspect of human sexuality.”
Marjorie Heins of the American Civil Liberties Union, representing the Denver consortium, said that as the number of cable systems increases nationwide, “this case has added significance because of the real risk that self-censorship by programmers and censorship by cable operators” will grow if the appeals court is not reversed.