Washington -- The Department of Justice last week asked the
U.S. Supreme Court to uphold a 1996 federal law that requires cable operators to scramble
adult programming or to air such networks late at night when children won't be
The law, fought from the outset by Playboy Entertainment
Group Inc., was declared in violation of the First Amendment in December by a three-judge
federal panel sitting in Wilmington, Del.
In an April 19 filing with the Supreme Court, the DOJ said
the scrambling law was consistent with the First Amendment, claiming that the lower court
should be reversed mainly because it required the government to meet too high a legal
burden in its defense of the law.
The DOJ filed what's called a jurisdictional statement
-- a necessary step to keep the case alive. It also asked the high court to review the
lower court's decision to reject two posttrial motions that the DOJ had filed.
The law, sponsored by Sen. Diane Feinstein (D-Calif.) and
Senate Majority Leader Trent Lott (R-Miss.), required cable operators to scramble the
audio and video feeds of adult networks in order to prevent signal leakage in cable homes
that do not subscribe to adult networks.
Operators that would not or could not comply were required
to air Playboy TV only from 10 p.m. to 6 a.m., when children are least likely to be
Playboy claimed that because scrambling costs would force
operators to chose the eight-hour "safe harbor," it stood to lose millions of
dollars in revenue as a result of losing two-thirds of the broadcast day.
In its filing, the DOJ said the law -- section 505 of the
Telecommunications Act of 1996 -- was "a very limited restriction on speech, and it
is a very effective approach to the substantial evil that it addresses."
Playboy has 30 days to file a response, including a motion
to affirm the lower court or a motion to dismiss the DOJ's request for review.
"We are still discussing how best to respond,"
said Playboy counsel Robert Corn-Revere, an attorney based here with Hogan & Hartson.
Were the high court to take the case, it would not be
argued during this term, which expires at the end of June, he added.
Corn-Revere said it was possible that the high court might
return the case to the lower court to reconsider the DOJ's two posttrial motions, one
of which was a request to limit its decision only to Playboy.
The lower court dismissed the motions, saying that it had
lost jurisdiction over the case when the DOJ filed a notice of appeal with the Supreme
Court Jan. 20.
Since early 1996, this case has been a seesaw battle
between Playboy and the DOJ.
In March 1996, Playboy won a temporary restraining order
barring Federal Communications Commission enforcement of section 505.
That ban lasted until Nov. 8, 1996, when the same
three-judge panel in Wilmington denied Playboy's motion for a preliminary injunction.
The panel upheld 505 under the most exacting First
Amendment standard, which requires the government to have a compelling interest and to
utilize the least restrictive means in enforcing content-based restrictions.
The case went to trial in March. In a stunning reversal,
the panel decided that section 505 violated Playboy's First Amendment rights, and it
enjoined FCC enforcement of the law.
In the opinion, the court said the government indeed had a
compelling interest in enforcing section 505: to protect children from exposure to
pornographic sounds and images.
But the court said the section failed "strict
scrutiny" because the provision was not the least restrictive means of achieving its
The court said another provision in the law -- section 504
-- was less restrictive. That section required cable operators, upon request and at no
charge, to block or totally scramble cable networks.
The DOJ said the panel should not have analyzed section 505
under strict scrutiny, adding that a more lenient standard that has been used to uphold
regulation of radio and broadcast television should have been employed, "because
indecency on cable television is constitutionally indistinguishable from indecency on