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Spokane, Washington  Est. May 19, 1883

Scrambling Not Enough, Playboy Told Court Upholds Law Consigning Partially Scrambled Adult Programming To Late-Night Hours

Aaron Epstein Knight-Ridder

The Supreme Court, rejecting appeals from the Playboy and Spice networks Monday, permitted the government to enforce a law intended to prevent children from watching sexually explicit - but incompletely scrambled - cable channels.

The law, part of the Communications Decency Act of 1996, requires cable operators to completely block sex-oriented channels to people who are not subscribers or to restrict their broadcasting to “adult” hours between 10 p.m. and 6 a.m.

Without hearing arguments or explaining their reasons, the justices upheld a lower court’s ruling that the law does not violate First Amendment guarantees of free expression.

Congress enacted the provision after hearing numerous complaints from parents who said they do not subscribe to sexually explicit channels but their children could see discernible images of sex acts and hear moans and vulgar language on those channels anyway.

For example, a mother from Cape Coral, Fla., said she found her 8-year-old and 7-year-old sons watching Spice one afternoon. The children, she said, were “transfixed” by scenes of “a naked man sodomizing a woman,” accompanied by assorted “groans and epithets.”

The problem is caused by the technical limitations of scrambling systems, which often enable non-subscribers to receive some or all of the video or audio signals.

The Playboy and Spice channels argued that nearly all cable operators would find it too expensive to eliminate the signal and instead would choose to restrict sexually explicit programs to the adult hours.

Robert Corn-Revere, lawyer for the Playboy Entertainment Group, said the law effectively relegated Playboy programming to “broadcasting Siberia,” in violation of its free-speech right to communicate with willing viewers.

In addition, he said, a nationwide blackout for “two-thirds of the broadcast day” would reduce Playboy channel revenues by 20 percent to 25 percent, or about $4.5 million a year.

But the Supreme Court justices affirmed a ruling against Playboy and Spice by a three-judge panel in Delaware. The two networks could still pursue an injunction against the act, although Delaware judges predicted such a move would have little chance of success. “We’re weighing the options,” said Corn-Revere, the lawyer for Playboy.

Judge Jane R. Roth, writing for the panel last November, cited the Supreme Court’s 1978 decision restricting radio broadcasts of comedian George Carlin’s “Seven Dirty Words” monologue.

In that case, the Supreme Court, likening afternoon broadcasts of Carlin’s vulgar language to “a pig in a parlor instead of a barnyard,” ruled that the broadcasts could be constitutionally restricted to a time period in which children would be unlikely to be listening.

Roth also said that the Communications Decency Act’s reliance on an “indecency standard” was not unconstitutionally vague. The Supreme Court is currently weighing a similar claim of vagueness in a case questioning whether the act can constitutionally make it a crime to transmit indecent material on the Internet.