United States v. Playboy Entertainment Group
529 U.S. 803 (2000)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A content-based regulation of speech must be narrowly tailored to promote a compelling government interest. If a less restrictive, but equally effective, alternative would serve the government's purpose, the government must use that alternative.
Facts:
- Playboy Entertainment Group, Inc. (Playboy) produces and distributes sexually explicit adult programming through premium cable channels.
- Cable operators transmit these channels in a scrambled format to paying subscribers.
- Imperfect scrambling technology can result in "signal bleed," where discernible audio or video from the sexually explicit programming can be seen or heard by non-subscribers.
- Congress enacted Section 505 of the Telecommunications Act of 1996 to address the problem of signal bleed and shield children from exposure to it.
- Section 505 required cable operators to either "fully scramble or otherwise fully block" the channels or restrict their broadcast to "safe harbor" hours, between 10 p.m. and 6 a.m.
- Due to the difficulty and expense of achieving a "full" scramble, a majority of cable operators complied with Section 505 by limiting broadcasts to the safe harbor hours.
- A separate provision, Section 504 of the same Act, required cable operators, upon subscriber request, to fully block any channel at no charge.
Procedural Posture:
- Playboy Entertainment Group, Inc. obtained a temporary restraining order (TRO) preventing enforcement of Section 505.
- Playboy then sued the United States in a three-judge U.S. District Court for the District of Delaware, seeking a permanent injunction and a declaration that the law was unconstitutional.
- The District Court denied Playboy's motion for a preliminary injunction, and the U.S. Supreme Court summarily affirmed that denial.
- After the TRO was lifted and enforcement began, the District Court held a full trial.
- The District Court found Section 505 unconstitutional under the First Amendment and permanently enjoined its enforcement.
- The United States, as the defendant, filed a direct appeal to the Supreme Court of the United States.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Section 505 of the Telecommunications Act of 1996, which requires cable operators to either fully scramble sexually-oriented channels or limit their broadcast to late-night hours, violate the First Amendment because a less restrictive alternative exists?
Opinions:
Majority - Justice Kennedy
Yes. Section 505 is a content-based restriction on speech that fails strict scrutiny because it is not the least restrictive means of achieving the government's compelling interest in protecting children. The government has a compelling interest in shielding children from potentially harmful speech, but it must do so without unduly restricting the rights of adults. A plausible, less restrictive alternative exists in Section 504 of the Act, which allows individual subscribers to request that any channel be blocked. The government bears the burden of proving that this less restrictive alternative is ineffective, and it failed to meet that burden. The government did not present sufficient evidence of a pervasive, nationwide problem of signal bleed, nor did it demonstrate that a well-publicized Section 504 opt-out program would fail to protect children whose parents wish to block such content. Because a targeted, less burdensome alternative is available, the broad speech restriction of Section 505 is unconstitutional.
Dissenting - Justice Breyer
No. The statute does not violate the First Amendment because it is a narrowly tailored solution to a compelling government interest. The majority understates the seriousness of the signal bleed problem, which the record shows could expose millions of children to sexually explicit content. Furthermore, Section 504's opt-out system is not a "similarly effective" alternative to Section 505's opt-in system. Section 505 protects children whose parents are unaware of the problem, unable to supervise them, or simply neglect to request a block. The low rate of blocking requests under Section 504 demonstrates its ineffectiveness, not the absence of a problem. The statute appropriately burdens speech to a limited degree to achieve the compelling goal of protecting children.
Dissenting - Justice Scalia
No. The statute is constitutional because it regulates the business of obscenity, which is not protected by the First Amendment. Even if the individual programs are not legally obscene, Playboy's business is engaged in the "commercial exploitation of erotica solely for the sake of their prurient appeal," a practice known as pandering, which the Court in Ginzburg v. United States held is unprotected. Since the government is free to ban these transmissions entirely, it may certainly take the less drastic step of regulating the time at which they may be broadcast.
Concurring - Justice Stevens
Yes. Justice Stevens writes separately to rebut Justice Scalia's dissent. He argues that the 'pandering' theory of obscenity from Ginzburg is anachronistic and was established before the Court extended First Amendment protection to commercial speech. Truthful advertising about the content of protected speech should be protected, not used as a justification to penalize the speech itself.
Concurring - Justice Thomas
Yes. Although much of the programming at issue could likely be prosecuted as obscene and thus receive no First Amendment protection, the government chose to litigate this case on the assumption that the speech is merely indecent and constitutionally protected. Given that litigation choice, the court must apply strict scrutiny. Under that standard, Section 505 is unconstitutional because it is not the least restrictive means. The Court should not dilute stringent First Amendment standards to accommodate the government's enforcement strategy.
Analysis:
This case solidifies the principle that when regulating content-based speech, the government bears a heavy burden to prove its chosen method is the least restrictive means available. It establishes that the existence of a viable, targeted alternative—like an opt-out system controlled by individual users—can render a broader, more restrictive regulation unconstitutional. The decision champions individual and parental choice over sweeping governmental censorship, particularly where technology provides a more tailored solution. It significantly impacts how Congress can regulate indecent but not obscene content on media platforms with user-blocking capabilities.
Unlock the full brief for United States v. Playboy Entertainment Group