United States v. Playboy Entertainment Group, Inc.

529 U.S. 803, 120 S. Ct. 1878, 146 L. Ed. 2d 865, 13 Fla. L. Weekly Fed. S 325, 2000 D.A.R. 5305, 20 Communications Reg. (P&F) 551, 2000 Colo. J. C.A.R. 2765, 2000 Daily Journal DAR 5305, 28 Media L. Rep. (BNA) 1801, 2000 Cal. Daily Op. Serv. 3966, 68 U.S.L.W. 4409, 2000 U.S. LEXIS 3427
CourtSupreme Court of the United States
DecidedMay 22, 2000
Docket98-1682
StatusPublished
Cited by942 cases

This text of 529 U.S. 803 (United States v. Playboy Entertainment Group, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L. Ed. 2d 865, 13 Fla. L. Weekly Fed. S 325, 2000 D.A.R. 5305, 20 Communications Reg. (P&F) 551, 2000 Colo. J. C.A.R. 2765, 2000 Daily Journal DAR 5305, 28 Media L. Rep. (BNA) 1801, 2000 Cal. Daily Op. Serv. 3966, 68 U.S.L.W. 4409, 2000 U.S. LEXIS 3427 (2000).

Opinions

Justice Kennedy

delivered the opinion of the Court.

This case presents a challenge to § 505 of the Telecommunications Act of 1996, Pub. L. 104-104,110 Stat. 136,47 U. S. C. § 561 (1994 ed., Supp. III). Section 505 requires cable television operators who provide channels “primarily dedicated to sexually-oriented programming” either to “fully scramble or otherwise fully block” those channels or to limit their transmission to hours when children are unlikely to be viewing,

' set by administrative regulation as the time between 10 p.m. and 6 a.m. 47 U. S. C. § 561(a) (1994 ed., Supp. Ill); 47 CFR § 76.227 (1999). Even before enactment of the statute, signal scrambling was already in use. Cable operators used scrambling in the regular course of business, so that only paying customers had access to certain programs; Scrambling could be imprecise, however; and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as “signal bleed.” The purpose of § 505 is to shield children from hearing or seeing images resulting from signal bleed.

To comply with the statute, the majority of cable operators adopted the second, or “time channeling,” approach. The effect of the widespread adoption of time channeling was to [807]*807eliminate altogether the transmission of the targeted programming outside the safe harbor period in affected cable service areas. In other words, for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so.

Appellee Playboy Entertainment Group, Inc., challenged the statute as unnecessarily restrictive content-based legislation violative of the First Amendment. After a trial, a three-judge District Court concluded that a regime in which viewers could order signal blocking on a household-by-household basis presented an effective, less restrictive alternative to § 505. 30 F. Supp. 2d 702,719 (Del. 1998). Finding no error in this conclusion, we affirm.

I

Playboy Entertainment Group owns and prepares programs for adult television networks, including Playboy Television and Spice. Playboy transmits its programming to cable television operators, who retransmit it to their subscribers, either through monthly subscriptions to premium channels or on a so-called “pay-per-view” basis. Cable operators transmit Playboy’s signal, like other premium channel signals, in scrambled form. The operators then provide paying subscribers with an “addressable converter,” a box placed on the home television set. The converter permits the viewer to see 'and hear the descrambled signal. It is conceded that almost all of Playboy’s programming consists of sexually explicit material as defined by the statute.

The statute was enacted because not all scrambling technology is perfect. Analog cable television systems may use either “RF” or “baseband” scrambling systems, which may not prevent signal bleed, so discernible pictures may appear from time to time on the scrambled screen. Furthermore, the listener might hear the audio portion of the program.

[808]*808These imperfections are not inevitable. The problem is that at present it appears not to be economical to convert simpler RP or baseband scrambling systems to alternative scrambling technologies on a systemwide scale. Digital technology may one day provide another solution, as it presents no bleed problem at all. Indeed, digital systems are projected to become the technology of choice, which would eliminate the signal bleed problem. Digital technology is not yet in widespread use, however. With imperfect scrambling, viewers who have not paid to receive Playboy’s channels may happen across discernible images of a sexually explicit nature. How many viewers, how discernible the scene or sound, and how often this may occur are at issue in this case.

Section 505 was enacted to address the signal bleed phenomenon. As noted, the statute and its implementing regulations require cable operators either to scramble a sexually explicit channel in full or to limit the channel’s programming to the hours between 10 p.m. and 6 a.m. 47 U. S. C. § 561 (1994 ed., Supp. III); 47 CFR §76.227 (1999). Section 505 was added by floor amendment, without significant debate, to the Telecommunications Act of 1996 (Act), a major legislative effort designed "to reduce regulation and encourage ‘the rapid deployment of new telecommunications technologies.’ ” Reno v. American Civil Liberties Union, 521 U. S. 844, 857 (1997) (quoting 110 Stat. 56). "The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives.” Reno, supra, at 858. Section 505 is found in Title V of the Act, which is itself known as the Communications Decency Act of 1996 (CDA). 110 Stat. 133. Section 505 was to become effective on March 9,1996, 30 days after the Act was signed by the President. Note following 47 U. S. C. §561 (1994 ed., Supp. III).

[809]*809On March 7,1996, Playboy obtained a temporary restraining order (TRO) enjoining the enforcement of §505. 918 E Supp. 813 (Del.), and brought this suit in a three-judge District Court pursuant to § 561 of the Act, 110 Stat. 142, note following 47 U. S. C. § 223 (1994 ed., Supp. III). Playboy sought a declaration that § 505 violates the Constitution and an injunction prohibiting the law’s enforcement. The District Court denied Playboy a preliminary injunction, 945 E Supp. 772 (Del. 1996), and we summarily affirmed, 520 U. S. 1141 (1997). The TRO was lifted, and the Federal Communications Commission announced it would begin enforcing § 505 on May 18,1997. In re Implementation of Section 505 of the Telecommunications Act of 1996, 12 FCC Red. 5212, 5214 (1997).

When the statute became operative, most cable operators had “no practical choice but to curtail [the targeted] programming during the [regulated] sixteen hours or risk the penalties imposed ... if any audio or video signal bleed occurred] during [those] times.” 30 F. Supp. 2d, at 711. The majority of operators — “in one survey, 69%” — complied with § 505 by time channeling the targeted programmers. Ibid. Since “30 to 50% of all adult programming is viewed by households prior to 10 p.m.,” the result was a significant restriction of communication, with a corresponding reduction in Playboy’s revenues. Ibid.

In March 1998, the District Court held a full trial and concluded that § 505 violates the First Amendment. Id., at 702. The District Court observed that §505 imposed a content-based restriction on speech. Id., at 714-715. It agreed that the interests the statute advanced were compelling but concluded the Government might further those interests in less restrictive ways. Id.,

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529 U.S. 803, 120 S. Ct. 1878, 146 L. Ed. 2d 865, 13 Fla. L. Weekly Fed. S 325, 2000 D.A.R. 5305, 20 Communications Reg. (P&F) 551, 2000 Colo. J. C.A.R. 2765, 2000 Daily Journal DAR 5305, 28 Media L. Rep. (BNA) 1801, 2000 Cal. Daily Op. Serv. 3966, 68 U.S.L.W. 4409, 2000 U.S. LEXIS 3427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-playboy-entertainment-group-inc-scotus-2000.