Playboy Advocate Fights for Speech, Not Porn

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Washington-Why was an esteemed member of the District of Columbia bar and a proud father of four demanding that the Supreme Court overturn a law that stopped kids from viewing, as conservative Justice Antonin Scalia put it, "Ravin' nymphos tear down the barn and light up the big country sky?"

For First Amendment lawyer Robert Corn-Revere, the issue wasn't about pornography, but about principle.

Corn-Revere led Playboy Entertainment Group Inc.'s four-year effort to overturn a channel-scrambling law aimed at adult cable networks. On May 22, the Supreme Court held in a 5-4 decision that the law violated Playboy's free-speech rights.

The decision was the first from the court to say that cable programming, however racy and indecent, enjoyed the same protections as the news columns of The New York Times when a law has a content-based purpose.

For Corn-Revere-a relative unknown outside of communications law circles here-the victory catapulted him into the front ranks of First Amendment lawyers, joining such notables as Bruce Ennis of Jenner & Block and Floyd Abrams of Cahill Gordon & Reindel.

"With this Supreme Court decision in his favor, this will make him the leading First Amendment lawyer in Washington," said former Federal Communications Commission chairman James Quello, who hired Corn-Revere as his chief counsel and legal advisor in the early 1990s. "It's a well-earned victory for him."

PRO-SPEECH COURT

For the Department of Justice, the case sent another signal that the high court will routinely side with speakers against paternalistic government when a law like the one Playboy fought fails to inflict the least amount of harm on protected speech.

"One of the significant aspects of the ruling is that the court applied strict scrutiny," said David L. Hudson, an attorney with the First Amendment Center at Vanderbilt University. "If there is another alternative that does not restrict speech nearly as much, then that can be a fatal flaw in the regulation."

In an attempt to rid cable systems of signal bleed-a transmission flaw that partially descrambled Playboy's content-section 505 of the Telecommunications Act of 1996 required cable operators to air adult networks between 10 p.m. and 6 a.m. if they could not or would not fully scramble the channel's audio and video feed.

Fearing fines and even criminal sanctions, cable operators took Playboy down in droves for two-thirds of the broadcast day-a sweeping ban that the court said went too far when a less restrictive alternative was available.

The court looked favorably upon another provision of the law-section 504-which gave each subscribing household the opportunity to block Playboy on an individual basis at the expense of the cable operator.

In a key finding for Playboy, the court said per-channel blocking was every bit as effective at safeguarding children from indecent programming as the time-channeling approach, but without preventing Playboy from reaching adult subscribers for 16 hours per day.

"The First Amendment requires that you tailor the solution to fit the problem," Corn-Revere said. "There is a government interest in doing something. The question then is whether or not the government then gets to engage in overkill that prevents willing adults from engaging in communication."

Corn-Revere is not a First Amendment purist, but he comes razor-close.

For instance, he would not allow a reporter rushing to cover a story to rely on the First Amendment to break the speed limit or blow through red lights. Nor would he support the view that a newspaper can use the First Amendment to shield itself from environmental and antitrust laws.

EXTENDS PROTECTION

But in the realm of content, Corn-Revere sees few, if any, distinctions: The Sound of Music and Debbie Does Dallas have absolutely the same constitutional rights under the First Amendment.

"I describe myself as a First Amendment traditionalist," he said. "I believe that the traditional protections that exist under the First Amendment apply to all media, or should apply to all media. We've inched closer to that goal."

Quello, however, said Corn-Revere "goes close to being on the libertarian side."

After leaving the FCC, Corn-Revere became a partner at Hogan & Hartson. He has a law degree from Catholic University's Columbus School of Law, a master's degree from the University of Massachusetts-Amherst and a bachelor's from Eastern Illinois University.

He has three sons and a daughter. In the Corn-Revere home, the parents police the TV-viewing habits of the children. "When I restrict what information comes into my household, I call that parenting. When the government does that for me, I call it censorship," he said.

Friends and former colleagues said the First Amendment is Corn-Revere's passion. Having Playboy as a client, they said, was not a surprise. Some said he can be ornery when dealing with those on the opposite side of the debate.

"It's really been gratifying to see him pursue what he really cares about so much," a former colleague said. "I think he believes that the First Amendment is the best legacy he can give his kids. It's not about the speaker; it's about the principle."

DEFENDED STERN

At the FCC, Quello and Corn-Revere had a strong disagreement in 1993 over Howard Stern, the raunchy radio shock jock who told crude jokes with strong sexual content. The FCC ended up fining Stern $1.7 million, the largest such fine in the agency's 66-year history.

Quello thought Stern had violated the FCC's rules on indecent speech, which barred Stern from saying the things he said prior to 10 p.m., when children are likely to be in the audience.

"It had to go pretty far to get to me. After all, I'm a beat-up war veteran," the 86-year-old Quello recalled. "As far as that overused sexually oriented 'F-word' is concerned, I've heard it, used it and done it, but not in front of the kids."

Corn-Revere took the opposite view-that Stern could say whatever he wished because all an offended listener had to do was change the channel or turn the radio off. Instead of trying to recruit Quello to his side, Corn-Revere declined to participate in the Stern enforcement action.

"There was really no way for the FCC's policy to be enforced in a constitutional manner," Corn-Revere said. "To fine people millions of bucks for having a potty mouth is a bit extreme."

One the issues in the Playboy case involved the government's "independent interest" in protecting the moral health of children on the theory that parents can't be around every second to ensure that their kids are not seeing porn on cable television.

But Kennedy, writing for the majority, said the DOJ failed to demonstrate that its "independent interest" was "sufficiently compelling to justify this widespread restriction" on Playboy's access to adults.

"This is critical," Corn-Revere said. "When the government talked about an independent interest, what it was seeking from the Supreme Court was an interest in censoring adults in the name of children. That's something the constitution doesn't permit."

OBSCENE OR INDECENT?

All along, the case had been about the scope of the government's authority to restrict indecent speech, which is constitutionally protected.

But Scalia, writing separately, said section 505 should have been sustained because Playboy's programming was obscene. Obscenity-defined as speech with no serious literary, artistic, political or scientific value-is not protected by the First Amendment, and it is criminally prosecutable.

"Since the government is entirely free to block these transmissions, it may certainly take the less drastic step of dictating how, and during what times, they may occur," Scalia said.

Scalia, however, was alone among the nine justices to advance the obscenity rationale. "This case was never about obscenity, and there is absolutely no plausible complaint that Playboy's programming is obscene," Corn-Revere said.

Few legal-policy battles ever end in Washington.

Sen. Dianne Feinstein (D-Calif.), co-sponsor of the now-voided time-channeling law, is considering her options in response to the court's ruling, a spokesman for the senator said.

"This is too politically hot for Congress to let it alone," said Bruce Fein, a former FCC general counsel and conservative legal commentator. "They will try to go back and rewrite something again. The public clamor to do something is too vocal in my judgment for them to just give up."

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