Today in 2000: Supreme Court strikes down federal block of adult cable channels

May 22, 2015

Today in Legal HistoryIf you were in your teenage years in the 1990s, you may be familiar with a cable TV phenomenon called “signal bleed” in which, due to imprecise signal scrambling, audio and/or visual portions of scrambled channels might be heard or seen.

Signal bleed allowed underage minors to view pornographic content that was distorted or partially obscured.  Apparently, this became such a problem that Congress felt compelled to act, which it did by adding § 505 to the 1996 Telecommunications Act.  Section 505 required cable providers to “fully scramble or otherwise fully block the video and audio portion” of any channel of its service “primarily dedicated to sexually-oriented programming” from 6 a.m. until 10 p.m. – presumably the time period during which children may be watching TV.

Naturally, one of the largest providers of “sexually-oriented programming” – Playboy – sued the government, claiming the provision was an unconstitutional infringement on its First Amendment freedom of speech rights.  The challenge eventually made it all the way to the U.S. Supreme Court, which ruled on the matter 15 years ago today, in its U.S. v. Playboy decision.

In Playboy, the Court sided with the adult entertainment provider 5-to-4, with the majority decision written by Justice Kennedy and joined by Justices Stevens, Souter, Thomas, and Ginsburg.  The majority noted that, although there are legitimate reasons for regulating “signal bleed” from adult content, Playboy’s content nevertheless has First Amendment protection.  Furthermore, because § 505 singles out particular programmers for regulation, the regulation is content-based and must be able to survive strict scrutiny.  Specifically, the Court noted that § 505 “must be narrowly tailored to promote a compelling Government interest, and if a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”

Unfortunately for the government, the Telecommunications Act contained § 504, which required cable providers to “fully scramble or otherwise fully block” channels specifically requested to be blocked by subscribers.  In other words, where § 505 required cable providers to constantly block sexually-oriented channels during the specified time period – regardless of whether the subscribers themselves wanted the channel blocked – § 504 only required cable providers to block the channels upon subscriber request.

As such, the Court found that § 504 was a sufficiently “less restrictive” alternative to § 505 that still served the same governmental purpose (so long as cable providers were to provide subscribers “adequate notice” about the possibility of signal bleed and the option to have the channels blocked upon request).  Since § 505 didn’t survive the strict scrutiny inquiry, the Court struck down the provision as unconstitutional.

Interestingly, the Court noted that digital technology “eliminate[s] the signal bleed problem,” and this is the exact reason why the phenomenon of “signal bleed” will leave future generations scratching their heads in bewilderment.  Accordingly, it seems that Congress and the Court are both owed a debt of gratitude for memorializing the distinctly 90’s experience of chancing upon distorted “sexually-oriented” content while channel surfing.