Playboy decision could protect ads

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The Supreme Court's decision overturning a curb on the Playboy TV Network could have a significant impact on other attempts by the government to regulate content and advertising on TV and the Internet.

First Amendment and advertising lawyers said last week's 5-4 decision in favor of Playboy Entertainment Group could make it more difficult for Congress to impose limits on "violent" programming and could also affect advertising law, forcing the government to go further to prove its curbs could not be more narrowly drawn.

"It reaffirms that the mere indication that children can be affected does not mean laws don't have to withstand First Amendment scrutiny," said Dan Troy, a Washington attorney who has handled a number of First Amendment cases.

The high court decision on May 22 struck down a provision of the 1996 Telecommunications Act that required cable companies that were unable to fully block access to adult-oriented channels--including Playboy's Playboy Channel and Spice--to limit such channels' availability to between 10 p.m. and 6 a.m.

Enacted when few cable companies offered digital cable boxes, the legislation put forth by Sen. Diane Feinstein (D., Calif.) aimed at overcoming "signal bleed," a problem with inadequately scrambled system signals that allowed kids to catch momentary glances of adult programming.

Playboy, which challenged the law, argued that it unconstitutionally restricted free speech.


The high court majority opinion, written by Justice Anthony M. Kennedy, said the law had the effect of turning off the channels for adults for two-thirds of the day, including times when adults were most likely to view them, and in effect was a ban on free speech.

The court said the government had not adequately proved that less extreme measures were not available.

"To prohibit this much speech is a significant restriction of communication . . . which enjoys First Amendment protection," Justice Kennedy wrote. "It is of no moment that the statute does not impose a complete prohibition. . . . The government's content-burdens must satisfy the same rigorous scrutiny as its content-based bans."

"Even where speech alone is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative."

Justice Kennedy said courts also should be careful in looking at government claims that a broad curb of speech is needed.

"A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act," he wrote.

Advertising and First Amendment lawyers said those statements make the Playboy case one of the court's clearest on First Amendment law. The majority comments, together with a dissenting minority opinion, gives clear guidance to lower courts, they said.

"It is one of the most important First Amendment cases," said Robert Corn-Revere, a Washington First Amendment lawyer who represented Playboy. "The points of view in the court are crystal clear, and there is no ambiguity about what the majority held.

"This case speaks to the level of proof that is necessary before the government can restrict speech."

Cameron DeVore, a Seattle First Amendment lawyer, said the case is important because the court lessened any distinction between various categories of speech.

"It applies general First Amendment principles to all speech," he said. "The majority of the court is not going to compartmentalize speech. It raises the bar . . . in a way that seems to apply to all content-based restrictions."


Dan Jaffe, exec VP of the Association of National Advertisers, said the case has some immediate effects, putting in doubt attempts to bring back TV's "family hour" through legislation and, perhaps, attempts to limit Internet content.

"What the case clearly states is where the viewer can protect himself, the court is going to support that type of approach," Mr. Jaffe said.

Mr. Jaffe said it may also prevent the government from blocking Internet content unless the government can show that various computer blocking programs do not work.

Mr. Troy suggested the court has again said that there is no exception to the First Amendment for so-called vice-oriented speech and further that the government cannot just say a problem exists.

"The government must present more than anecdote and supposition. Essentially they have got to prove a problem [exists]," he said.

Copyright May 2000, Crain Communications Inc.

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