Porn Free
“Signal bleed.” I can’t define it, but I know it when I see it.
Signal bleed occurs whenever you find yourself idling on Channel 69–paralyzed between Biography and SportsCenter–and encounter flickery-blurry images of porn people doing porn things in full porn Surroundsound. Parents often discover “signal bleed” for the first time when they deposit little Ashley-Caitlin or Tyler-Trevor in front of Tinky Winky on Channel 9 and return, horrified, to the rapturous groans of Trixie Tumble on Channel 10.
Congress enacted Section 505 of the Telecommunications Act of 1996, to address signal bleed–both audio and imperfectly scrambled video–which occasionally displays a distinct boob shot. The provision requires cable operators either to “fully scramble” sexually explicit “indecent” programming or to limit their broadcasts to the hours between 10 p.m. and 6 a.m.–when children are either sleeping or stockpiling semi-automatic weapons in their garages. Playboy Entertainment Group Inc., which operates the Playboy TV sex channel, sued the government in 1996, claiming Section 505 violated its rights under the First Amendment. Playboy won in District Court when a three-judge panel agreed. The court used “strict scrutiny” to review the provision.
Strict scrutiny is to constitutional analysis what “go ask your father” is to the rest of us. It usually means no. Strict scrutiny has been used to evaluate most government attempts to regulate speech (except for a limited class of “low value” speech). Thus, speech that’s defamatory, obscene, or “fighting words” can be regulated under the looser “go ask your mother” intermediate scrutiny standard.
After applying strict scrutiny in the Playboy case, the District Court more or less invented a “less restrictive alternative” to control signal bleed. It ruled that cable companies would be required to give notice to parents that lockboxes, which fully block adult programming, would be provided free of charge with a simple phone call to the cable operator.
The government appealed this decision and–due to a fast-track provision in the Telecommunications Act–it went straight to the U.S. Supreme Court. The main issue on appeal: what level of scrutiny to use on “indecent” but not “obscene” speech to which children are exposed. The subtext of oral argument: What the heck is the difference between “indecent” and “obscene” speech?
A few matters of stage business before the opening gavel: Christie Hefner (Hugh’s heir) sits in the audience to the left of the justices. Kenneth Starr (heir to the Church Lady) sits to the right. When life gives a writer props like these, you know it’s going to be a good day. A cynic might accuse Starr of only watching the naughty cases before the high court. But your dispatcher is compelled to report that Starr was supervising 10 African-American high-school students, evidently as part of some civics class. Hefner, for the record, does not have 10 Bunnies in tow.
James Feldman, an assistant to the solicitor general, quickly discovers that Justice Scalia is not going to be riding in the same rodeo as the rest of the court today. Scalia wants Feldman to explain why Playboy programs are being regulated as “indecent” as opposed to “obscene.” Feldman tries to explain that “obscene” television is already unlawful. Scalia wants none of that. Feldman tries again. He explains how the constitutional test for “obscenity” is a doctrinal nightmare, involving community standards that cannot be measured for national broadcasts.
“Maybe it should,” snaps Scalia. Justice Stevens reminds Scalia that if Playboy programming were indeed obscene, it could be regulated elsewhere, and this statute would be moot. “Are you going to prosecute them one by one to protect the children?” Scalia retorts. One gets the feeling Justice Scalia isn’t going to receive one of those coveted invites to Hef’s millennium bash. While Justices Souter, Ginsberg, Kennedy, and Rehnquist grill Feldman over the extent of the signal bleed problem (39 million homes, 29 million children), Scalia won’t let up on the obscenity thing. Because he is having trouble imagining a Playboy channel that is “indecent” without being “obscene,” he asks Feldman if his job here today is to “posit in our minds a dirty-word channel?”
Speaking of dirty words, the court starts talking about Pacifica. FCC vs.Pacifica is the 1978 case that started the court down the road of “go ask your mother” scrutiny for speech once deemed protected. The case involved a radio broadcast of George Carlin’s “Filthy Words” skit and FCC regulations requiring “indecent” speech to be “time channeled” into hours when children would not be apt to listen. After Pacifica, you can still say, “Fuck the draft” on the radio. Unless it’s intended to be funny. In which case you can only say it after midnight.
Pacifica seemed to allow for lower levels of scrutiny to protect children against lower classes of speech. The “protection of minors” rationale articulated in Pacifica sometimes threatens to swamp not only First Amendment doctrine but also parents’ rights to make choices for their own children. Justice Ginsburg asks Feldman why the state should act as Superparent for parents who don’t elect to obtain lockboxes. Feldman makes a nice point here: Parents shouldn’t have to obtain lockboxes. They already chose not to subscribe to Playboy.
Justice Breyer runs with this analysis in his questioning of Playboy’s lawyer, Robert Corn-Revere. Corn-Revere, all silvery goatee and charm, looks like he may well have worked his way up from the Playboy magazine mailroom via its movies. While Breyer pounds at him about why parents should have to “opt out” of scrambled porn, Souter calls the lockbox solution “Utopian.” The District Court acknowledged that only a small fraction of parents make the effort to get lockboxes from their cable companies. The government infers from this that parents want lockboxes but either cannot or will not make the effort to obtain them. Playboy infers that parents don’t have a problem with their kids watching wavering porn.
Justice Kennedy is bothered by the fact that the government’s solutions–either ban the porn or segregate it into wee hours of the morning–appear more restrictive than just shifting the burden to parents to order lockboxes. He doesn’t like the government speculation as to what cable companies can and cannot afford to do. The crux of the fight: Who decides whether burdening parents or burdening cable companies is less burdensome? I count four justices who seem disinclined to shift the burden to parents. Justice Thomas does not talk.
We do glean a few judicial secrets today. Questioning Feldman, Justice Kennedy cracks up the gallery when he suggests that cable subscribers opt for basic cable “and hope you get the sports on the bleed.” Justice Scalia tells us how his clerks were horrified at having to view the porn videos in evidence. (What does a white male federalist wear to view porn with a Supreme Court justice?) And Justice Breyer’s naked hostility toward TV repairmen who don’t show up as promised is the predicate for much of his opt-in/opt-out analysis above.
Critics of Pacifica and its progeny say parents now have greater control over what kids watch than they did back when George Carlin said “tit” on the radio. Right. And kids today don’t know where dad hides the Playboy either. (“Go ask your mother.”) My guess is that so long as kids have glands and a set of needle-nosed pliers, they will devote their days to unscrambling that which the government has deemed “indecent.” Hotwiring the lockbox is just part of the game. We are curious about secrets and taboos. That’s why this court is still the hottest show in town.
