Supreme Court Watch
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GWEN IFILL: So, Jan, today it was Playboy versus the United States Government. What was this case about?
JAN CRAWFORD GREENBURG: Well, Playboy won. This involved a provision in the 1996 Telecommunications Act that was targeted at a problem called signal bleed. That’s where when you don’t subscribe to a premium channel you can still see audio and hear, hear the audio and see the visual bleeding through. Congress got some complaints from parents that they would walk in the room and see their kids looking at this signal bleed and they thought that these premium channels like Playboy had been fully blocked.
So congress passed this law to address that problem. Specifically the law said that these kind of cable companies that offer these kind of premium channels like Playboy had to fully block their programming. And if they didn’t have the technological ability to do that, as most don’t because that’s why you get the signal bleed, then they had to limit it to the hours of 10 PM and 6 AM. In other words, when most kids are sleeping and many adults.
GWEN IFILL: So the court decided that congress had overreached on this?
JAN CRAWFORD GREENBURG: Right. They said that in the interest of protecting children, congress had gone too far and infringed on the first amendment speech rights of adults. It said that the court, I mean that Congress hadn’t really shown there was a compelling problem, that millions of children were watching this kind of signal bleed, to hear and look at these fuzzy images. And it also said there were better ways to address this problem that wouldn’t be so restrictive.
GWEN IFILL: It almost sounded like Congress and the government has an interest in protecting children that is upstaged by the court’s interest in preserving the free speech protection of the Constitution.
JAN CRAWFORD GREENBURG: Well, it’s a delicate balance in the court today acknowledged that the government does have a strong interest in protecting children and insuring that children don’t have access to indecent and offensive materials, particularly when parents are at work, when both parents may not be home. But it emphasized Congress can’t go too far and infringe on adults’ free speech rights. Even though we may think or some people may think that Playboy is offering indecent programming that a lot of people may not want to see. It’s still protected by the first amendment. It’s not considered obscene. And obscene speech is what’s not protected.
GWEN IFILL: Is that a big problem, signal breed?
JAN CRAWFORD GREENBURG: The signal bleed, yes, is a big problem, because 75% of cable television companies say that they really have that happen on some occasion, sometimes it happens more than others, depending on for example the weather, or the time of day.
GWEN IFILL: But you said a few parents had complained to congress. Are a lot of parents affected by this?
JAN CRAWFORD GREENBURG: Justice Anthony Kennedy in his opinion today questioned whether or not putting the problem of the general problem of signal bleed aside, whether it was a problem that kids were sitting there watching it. He said you would think if this were a widespread problem that we’d hear from millions people or certainly many more than the handful of examples that the government has put forward.
GWEN IFILL: So theoretically there are other ways that parents could control access to this kind of information. What are those alternatives?
JAN CRAWFORD GREENBURG: Right. And the court pointed to another provision in the Telecommunications Act that requires cable companies to offer specific blocking devices to parents who request them for their individual house. So the court said today, look, that’s good enough to protect children. If a parent is concerned about it, they can call up their cable company, and under the law the cable company has to come and install this blocking device or fix it so their signals are fully blocked, and we don’t need this broad law that would limit everyone’s access to this kind of programming.
GWEN IFILL: But I gather that Justice Breyer writing in the minority argued that this is too much of a burden for parents, this idea of getting, of affirmatively having to block this information?
JAN CRAWFORD GREENBURG: Right. And let me just say, it was a very unusual lineup. Justice Breyer wrote a dissent, it was a 5-4 ruling. And in the dissent, Justice Breyer was joined by Justices O’Connor and Scalia, Rehnquist. Not normally the Justices he goes along with. But the four dissenters today, led by Justice Breyer, said there is a compelling problem. We have 28 million kids who, you know, could have act says or could potentially see this kind of signal bleed, whether or not the government has documented each and every case.
He referred to the 5 million kids who are home at some point without supervision. And he said the other alternative, making parents actually pick up the phone and call the cable company, wasn’t as effective. Sometimes parents may not realize that their kids are doing it, and it’s obvious that the better way is the broader way.
GWEN IFILL: You use the term earlier, indecent speech. Is there a distinction between what’s considered to be indecent and constitutional protected, and what considered obscene and therefore is not?
JAN CRAWFORD GREENBURG: Yes, absolutely. In this case, as the majority made clear from the beginning, turned on the notion that this speech was considered indecent, and not the bad, much more offensive obscene speech, which isn’t protected or doesn’t get that kind of first amendment protection. This speech is indecent and therefore gets some, gets a high degree of first amendment protection.
GWEN IFILL: Is cable different from broadcast, different from radio, different from print in these kinds of cases?
JAN CRAWFORD GREENBURG: That was also interesting, because this case made clear that cable is different than broadcast for the reasons that we’ve been talking about, that people can control it. Broadcast can’t air this kind of indecent programming, by law. Cable can air it, and people can control the access that they’re going to subscribe to. And today as the court made clear, they can get these blocking devices, the parents can, to further restrict even that signal bleed that, you know, scrolls through that you can kind of make out fuzzy images.
GWEN IFILL: And Playboy Magazine is different than the Playboy Channel under this interpretation of the law?
JAN CRAWFORD GREENBURG: Right. This was completely focused on Playboy Channel as it is an cable television. I spoke with Christy Heffner today, the CEO of Playboy Enterprises, and she hailed the ruling, she said this was costing Playboy millions of dollars in lost revenues and it was important that the court had recognized that adults’ speech must be protected, even though it’s important to protect children, parents have a real in that, and they can step in and ask the cable companies to do so.
GWEN IFILL: But isn’t the technology at some point going to outpace this kind of ruling? There are abilities to block it fully now, aren’t there?
JAN CRAWFORD GREENBURG: There will be, yes, and as we get further down the road and the majority makes this clear, as we get further down the road, companies will even have different kinds of technology for broadcasting their programming, so that the whole notion of signal bleed and whether or not something is fully scrambled and we can kind of make it out, that was ultimately become obsolete.
GWEN IFILL: So the big victory Christy Heffner is talking about is short term, because it won’t be an issue soon.
JAN CRAWFORD GREENBURG: Right, but it’s a victory she’s certainly glad to have, it will be rendered obsolete down the road. But in the short term, sure, this is certainly one they’re happy with.
GWEN IFILL: Okay, Jan, thanks a lot.