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High court lifts curb on adult cable TV

Again, the court tells Congress that it went too far in regulating telecommunications.

A closely divided Supreme Court struck down a provision of a 1996 law that was designed to protect children from exposure to sexually explicit programming on cable television, marking the second time in three years that the court has ruled Congress overstepped its bounds in regulating information technology.

In a 5-4 decision Monday, the court ruled that the provision of the Telecommunications Act, which required cable providers of sexually explicit material to "fully scramble" their signals or show such programming only when children are unlikely to be watching, violated the First Amendment's free speech guarantees.

The court said another section of the same law, which requires cable operators to block any cable channel at the request of a subscriber, offered an equally effective and "less restrictive" means to achieve the same goal.

In First Amendment matters, "if a less restrictive means is available for the government to achieve its goals, the government must use it," Justice Anthony Kennedy wrote for the court majority.

Monday's decision represented a victory for Playboy Entertainment Group, which operates the Playboy TV Network and the Spice Network, the dominant adult entertainment cable channels.

It was also another sign that a slim court majority is more willing than Congress to apply strict First Amendment protections to evolving information technology.

In 1997, the justices invalidated another section of the same federal law that restricted the transmission of sexually explicit material over the Internet. The ruling delighted civil libertarians and the cable television industry, but dismayed a variety of conservative organizations that are working to restrict children's exposure to sexually oriented material.

Christie Hefner, chairman and chief executive of Playboy Enterprises, said, "The beauty of the decision was to endorse the rights of parents to control what comes into their home without limiting the rights of adults to see constitutionally protected programming."

But Janet LaRue, senior director of legal studies at the Family Research Council, said, "It's a sad day when the protection of children and unconsenting adults takes a back seat to the profit of cable pornographers." She said the court's decision "places the burden on cable subscribers rather than the sexually explicit cable providers" to keep the material out of homes.

The case, U.S. vs. Playboy Entertainment Group Inc., arose from the problem of "signal bleed": cable TV signals sometimes becoming available to non-subscribers.

Congress responded in the 1996 Telecommunications Act by requiring cable providers of sexually explicit material to scramble those signals or confine the programming to times when children are unlikely to be watching. The Federal Communications Commission later set the acceptable time as between 10 p.m. and 6 a.m.

According to Playboy, most cable operators chose to restrict the time they would show adult programming rather than risk lawsuits stemming from signal bleed or incurring the expense of creating a foolproof scrambling system.

Playboy challenged the restrictions, and in 1998 a special federal district court in Delaware ruled that the rules violated the First Amendment by targeting a certain kind of speech, sexually explicit material, based on its content, and banning that type of programming for most of the day.

Unlike obscene material, sexually explicit programming is protected under the First Amendment.

Kennedy, who was joined by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg, agreed with that decision, saying the only "reasonable way" for many cable operators to comply with the law was to restrict adult programming to a few hours a day.

That, Kennedy wrote, "silences the protected speech for two-thirds of the day in every home in a cable service area, regardless of the presence or likely presence of children or of the wishes of the viewers. . . . To prohibit this much speech is a significant restriction of communication between speakers and willing adult listeners, communication which enjoys First Amendment protection."

Kennedy also emphasized that because the case involved free speech guarantees, it was up to the government to prove that the proposed alternative method of protecting children from sexually explicit material would be ineffective.

He said the government had failed to do so.

It was on this point that Justice Stephen Breyer based the main dissent in the case. He argued there was no evidence that allowing cable subscribers to request complete blocking of certain programming would be equally effective in shielding children.

Citing the millions of children left alone at home after school, Breyer said the restrictions struck down Monday offered more certain protections for "a large number of families."

"By finding "adequate alternatives' where there are none, the court reduces Congress' protective power to the vanishing point," Breyer wrote.

Other dissenters were Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia.

There is little agreement on the pervasiveness of signal bleed.

The Justice Department estimated that 39-million homes with 29.5-million children could be affected. But Robert Corn-Revere, a lawyer for Playboy, said that in 16 years of transmitting adult entertainment, the company had heard only a handful of complaints and did not believe it was a significant problem.

Hefner said about 25-million households view Playboy TV and 14-million receive theSpice Network, which Playboy acquired last year. Playboy projected that the federal law would cost it $25-million in lost revenue over a decade.

In other cases decided Monday, the court:

Set the stage for a major environmental ruling, agreeing to decide whether the government went too far in adopting tougher nationwide clean-air standards. A lower court blocked the Environmental Protection Agency from enforcing rules adopted in 1997 to reduce smog and soot nationwide. A ruling is expected next year. The government said the case carries "profound implications for the health of the American public."

Narrowed a key whistle-blower law, saying people cannot use the federal False Claims Act to file lawsuits that accuse a state of cheating the federal government. The 7-2 decision in a Vermont case upheld the right of private citizens to file fraud lawsuits on the federal government's behalf. But the justices said the law protects the states from being sued.

Ruled 5-4 that people injured in accidents involving cars built before federal rules required air bags cannot sue automakers for failing to install air bags. The ruling in a District of Columbia case said federal auto-safety regulations block such lawsuits filed under state product-liability laws.

Let stand a ruling that may force airlines to pay a lot more to some passengers whose luggage was lost or damaged. The justices turned down an American Airlines appeal that sought to limit how much it may have to pay for suitcases that disappeared, or arrived empty, during a family's trip from the District of Columbia to the Dominican Republic.

Turned down the tobacco industry's attempt to replace the Florida judge presiding over the nation's only statewide lawsuit that seeks damages for hundreds of thousands of people with smoking-related injuries.

Narrowed the scope of a federal anti-arson law, throwing out an Indiana man's federal conviction for setting a fire at his cousin's home. Arson of a private home generally is not subject to federal prosecution, the court's unanimous ruling said.

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