February 22, 1996

Justices Wrestle With TV Indecency Issue


WASHINGTON -- The Clinton administration's defense of a federal law intended to curb children's access to sexually explicit programming on cable television got a skeptical hearing from the Supreme Court on Wednesday in a case that could help shape the legal framework for regulation of indecency on the Internet as well as on television.

The justices wrestled with the intricate provisions of a law that Congress adopted, with little debate or explanation, as a last-minute floor amendment to a cable television bill in 1992.

Known as the Helms Amendment, for its sponsor, Sen. Jesse Helms, R-N.C., the law delegates to cable system operators the authority to ban indecent programming from the channels they make available to community groups without charge and to commercial programmers who lease them for a fee. If the operators choose to permit indecent programming on a leased channel, they must scramble the signal for all subscribers who do not request access in writing.

There seemed little support on the court on Wednesday for the administration's argument that because the choice was left to cable operators whether to carry the programming, the Helms Amendment should be viewed not as a government restriction on speech but simply as a "redistribution of editorial discretion between the operators and the programmers" as Deputy Solicitor General Lawrence G. Wallace described the law on Wednesday.

With the government involved remotely, if at all, in the private parties' choice, the law posed no First Amendment problem, Wallace said.

Several justices objected that this description did not take account of the law's intended effect. "Wasn't it Congress' purpose to restrict and regulate indecent programming?" Justice Anthony M. Kennedy asked Wallace, adding, "Under your characterization, Congress acted for no purpose whatsoever."

"Congress wanted to make sure a cable operator was not required against its will to become a purveyor of indecent programming," Wallace replied. The law simply "makes it more clear who is accountable," he said. Under a 1984 law, which the Helms Amendment repealed, cable systems were forbidden to regulate the content of their community-access and leased channels.

The case came before the court at a time of growing debate over sexually explicit material on television, in the movies and over on-line computer services. Last week, in a case that is almost certainly headed for the Supreme Court, a federal district judge temporarily blocked enforcement of a new law that makes it a crime to send indecent material over the Internet computer communications network if the material might be seen by children.

The U.S. Circuit Court of Appeals for the District of Columbia upheld the Helms Amendment last year on the ground that the lack of government involvement in the operators' choice meant that the law should not be subjected to constitutional analysis. The Constitution restricts only government action, not private behavior. Because of the continuing legal challenges, the law has not taken effect.

In defending the Helms Amendment against an appeal by two groups of cable programmers, the Clinton administration has backed away somewhat from the appeals court's analysis. The part of the law requiring operators to choose between banning indecent programming on leased channels or scrambling the signal does entail government action, Wallace conceded. But he insisted that the burden placed on operators was "not substantial enough" to violate the Constitution. Cable operators are accustomed to scrambling the signals of premium channels for subscribers who have not paid for the extra service, he said.

Justice Ruth Bader Ginsburg objected that the need to request access in writing in order to unscramble a channel specializing in indecent material would place a customer "in the uncomfortable position of having to list herself as someone who wants to subscribe to indecent programming." The government would not have access to subscriber lists, Wallace said.

While it appeared likely that the justices would reject the appeals court's analysis and subject the law to some level of First Amendment scrutiny, it was not clear from the argument on Wednesday how the constitutional analysis would proceed.

I. Michael Greenberger, arguing the appeal for two coalitions of cable programmers, said that by regulating speech on the basis of content, the Helms Amendment fell into the category of First Amendment restrictions that could be justified only by a "compelling interest" on the part of the government and by evidence that the restriction was the "least restrictive means available" to accomplish the goal.

His argument, on behalf of groups called the Denver Area Educational Telecommunications Consortium and the Alliance for Community Media, raised objections from Justice Antonin Scalia and Chief Justice William H. Rehnquist, who both said that the court had never required Congress to provide explicit justifications for its actions.

Other justices more sympathetic to Greenberger's position had questions of their own. Justices John Paul Stevens and David H. Souter questioned whether evidence that parents generally failed to shield their children from access to indecent programming might justify a regulatory approach that took the decision out of parents' hands.

This case, Denver Area Consortium v. Federal Communications Commission, No. 95-124, is likely to be only the first of several Supreme Court cases created by the current interest in Congress in curbing indecency on television and on computer on-line services.

In the decision last week, a federal district judge in Philadelphia temporarily blocked enforcement of a new law, the Communications Decency Act. Special appeal provisions in that law are designed to insure quick Supreme Court review.

In his ruling, Judge Ronald L. Buckwalter said the concept of "indecency" was too vague to be understood or applied by "reasonable people." While the definition of indecency received no attention during the Supreme Court argument on Wednesday, the question of whether the term is unconstitutionally vague is part of the challenge to the Helms Amendment, and the justices may have to address the question either in this case or another one.

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