- The Washington Times - Wednesday, May 31, 2000

The First Amendment should evoke odes, but not sonnets, tulips, but not red roses. The U.S. Supreme Court forgot that maxim in falling head over heels in love with free speech dogma last week in United States vs. Playboy Entertainment Group (May 22).

Crooning for a 5-4 majority, Justice Antony Kennedy rebuffed a featherweight congressional burden on cable access to sexually explicit adult programming as warring with the free marketplace of ideas cherished by the Constitution. But that misbegotten ruling jilted reason more than Congress jilted speech in the Communications Decency Act of 1996.

Title V of the law represented a modest defense against sex-saturated programming that coarsens and titillates, akin to throwing a snowball into hell to cool the flames. Section 505 obligated cable operators offering channels "primarily dedicated to sexually oriented programming" to embrace one of two options to inhibit their receipt by youth: either blocking or fully scrambling the signal or transmitting only between 10 p.m. and 6 a.m. It addressed so-called "signal bleed," or deficient scrambling that enabled non-paying households to receive audio and visual portions of vulgar or raunchy pay-per-view programs. Nothing in the statute impaired the right of cable subscribers to receive sexually arousing programming in the eight safe harbor hours most associated with the erotic. Unlike channels devoted to news or public affairs with short shelf-lives, sexually explicit programming loses none of its allure or contribution to informed debate and democracy through short delays in transmission. In sum, section 505's restriction on cerebral exertions that define free minds was undisturbing, and should have encountered relaxed constitutional scrutiny. Instead, the mild restraint aroused a tigerish review.

Justice Kennedy accepted that legitimate worries over the corruption or emotional immaturity of youngsters inspired section 505. He frowned, however, on its targeting of speech based on its sexually explicit content.

But what was the fretting about? The law did not suppress or disfavor any particular idea. As Justice Antonin Scalia noted in dissent, Playboy promotes its own Spice network programming by highlighting such activities as "female masturbation/external," "girl/girl sex," and "oral sex/cunnilingus." Any fool knows that Playboy's lascivious menu is multiple galaxies away from Great Books orders. No judicial suspicion should have attached to its regulation because it bespoke no hostility toward an unorthodox or aberrant viewpoint, the lifeblood of free speech.

Justice Kennedy, nevertheless, treated Playboy's channels like the Lincoln-Douglas debates. Since the sexually oriented programming fell within the First Amendment's broad universe, he pontificated, any statutory limitation must tumble unless the government shoulders an extremely exacting burden of proof: namely, demonstrating that the law is "the least restrictive means" of promoting a "compelling government interest."

The restraint cannot stand, in other words, "If a less restrictive alternative would serve the government's purpose."

Justice Kennedy chastised section 505 as fatally flawed because the government failed to disprove that blocking unwanted channels on a household-by-household basis at the request of subscribers would not equally protect the morals and psychological vulnerabilities of children and adolescents. Section 504, he emphasized, requires cable operators to block undesired channels at individual households upon request. The observation, however, neglects the legitimate government interest in protecting juveniles from irresponsible parents, which the section leaves unattended.

Justice Kennedy also shortchanged the tiny fractional percentage of subscribers who requested full blocking. The factual record, he declared, was inconclusive on attributing the diminutive blocking requests to either irremediable subscriber ignorance or the absence of a serious problem with unwanted sex-saturated programming. The government was constitutionally required to discredit the latter explanation with empirical evidence, Justice Kennedy maintained, and its failure on that score rendered section 505 unconstitutional because not empirically validated as the "least restrictive" regulatory alternative to protecting the young and impressionable.

He preachingly defended the Playboy Enterprises precedent with lofty general propositions that had little to do with the concrete case: "When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments … can be formed and tested. What the Constitution says is that these judgments are for the individual to make, not for the government to decree."

Left conspicuously unanswered, however, was how a transfixion with oral sex or masturbation expresses a "point of view," or how requiring those so transfixed to satisfy their voyeurism between 10 p.m. and 6 a.m. disabled them from forming and testing their esthetic and moral judgments about art and literature.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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