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In a broad First Amendment decision, United States v. Playboy EntertainmentGroup (No. 98-1682), the Supreme Court struck down limits on sexuallyoriented but nonobscene cable television programming. Although the May 22 decision focused on cable television provisions of the Communications Decency Act of 1996, Justice Anthony Kennedy’s majority opinion should make it substantially harder for the government to defend restrictions on Internet speech and commercial speech, especially restrictions that limit speech to adults in order to protect children. Justice Kennedy clearly wrote with the Internet in mind, and his anti-regulatory approach bodes well for speech in cyberspace. The challenged CDA provision, Section 505, required cable television operators who provide channels “primarily dedicated to sexually-oriented programming” to “fully scramble or otherwise fully block” those channels unless a subscriber opted to receive it. Full scrambling was required to avoid “signal bleed,” whereby audio or video portions of an incompletely scrambled program might be heard or seen. The “opt in” approach of Section 505, requiring operators to scramble an adult channel unless a subscriber asked to receive it, contrasted with the “opt out” approach of Section 504, which requires operators to scramble nonadult channels only if a subscriber asks not to receive it. Operators who could not comply with the scrambling requirement of Section 505 were required to “limit the access of children to [such] programming” by providing it only between 10 p.m. and 6 a.m. Because analog cable systems cannot ensure full scrambling, and conversion to other systems to avoid “signal bleed” is not yet economical, a majority of operators responded by “time channeling” — limiting their transmissions to the specified late-night hours. As the Court noted: “The effect of the widespread adoption of time channeling was to eliminate altogether the transmission of the targeted programming outside the safe harbor period in affected cable service areas. In other words, for two-thirds of the day, no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so.” With 30 to 50 percent of adult programming viewed by households before 10 p.m., the Court considered this result “a significant restriction on communication.” Because nonobscene programming is protected by the First Amendment and Section 505 was a content-based restriction, the Court applied “strict scrutiny.” Under that standard, “if a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” The Court held that Section 505 did not survive strict scrutiny because the government had failed to prove that signal bleed was a serious problem and that the less restrictive opt-out approach of Section 504 would not achieve the government’s child-protection goals. The manner in which Justice Kennedy applied this analysis and the markers he laid down along the way are notable. He toppled several rationales commonly used to defend Internet and commercial speech restrictions and made the government’s task in justifying such restrictions more difficult. The Court’s reasoning was foreshadowed in its earlier Internet and commercial speech cases. The decision reflects an encouraging convergence of First Amendment doctrine. Adult Speech Rights Playboy advances speech rights in six notable ways. First, the Court affirmed that the importance of the government’s objective — shielding children from indecent speech entering the home — did not justify a relaxed standard of First Amendment review. The Court had previously affirmed this principle in Reno v. ACLU (1997), striking down another CDA provision that prohibited the knowing transmission to minors of “indecent” communications over the Internet. Citing Bolger v. Youngs Drug Products Corp. (1983) (in which the justices struck down a ban on the mailing of unsolicited contraceptive advertisements), the Playboy Court ruled that the government may not restrict speech to protect children if the result is a significant curtailment of speech that adults have a right to receive. Second, the Court affirmed that the lack of “importance” of the speech in question does not justify a relaxed standard of First Amendment review. “We cannot be influenced,” the Court stated, “by the perception that the regulation in question is not a major one because the speech is not very important.” The Court noted that this is often the rationale for government restrictions. But as Justice Kennedy wrote, “the citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.” Obviously with the Internet in mind, Kennedy stated: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume that the Government is best positioned to make these choices for us.” These themes have been sounded before. As the Court stated in Edenfield v. Fane, a 1993 commercial speech decision, “the general rule is that the speaker and the audience, not the government, assess the value of the information presented.” Likewise, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court observed that “no line between publicly ‘interesting’ or ‘important’ commercial advertising and the opposite kind could ever be drawn.” This anti-paternalist principle precludes restrictions on advertising and Internet speech, including both content and format restrictions, that are premised on the government’s view that the speech does not convey “useful” or “necessary” information. Third, the Court did not apply a relaxed standard of First Amendment review, because Section 505 merely restricted, and did not completely ban, adult programming. It found that, because Section 505 prohibited a “significant” amount of speech (30 percent to 50 percent of adult programming) based on its content, the restriction was subject to “the same rigorous scrutiny” as a complete ban. “When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression.” Under this reasoning, restrictions on advertising for particular products or services should not be able to escape rigorous First Amendment scrutiny simply because they do not entirely prohibit such advertising in a particular medium or do not prohibit such advertising in other media. Although the Court has stressed the availability of alternatives in cases involving truly minimal restrictions on commercial speech ( Friedman v. Rogers (1979) and Florida Bar v. Went For It (1995)), the Court has treated such alternatives as immaterial in cases where the commercial speech restriction was significant. See Virginia State Board of Pharmacy (1976), Linmark Associates v. Township of Willingboro (1977), and Cincinnati v. Discovery Network (1993). In a similar vein, the Playboy Court rejected the government’s argument that Section 505 was analogous to the adult bookstore zoning ordinances upheld in Renton v. Playtime Theatres (1986), and Young v. American Mini Theatres (1976). Such ordinances, the Court explained, survive First Amendment review when enacted to prevent harmful “secondary effects” of such establishments (e.g., crime and declining property values), not harmful effects of the speech itself. This aspect of Playboy rejects Justice Sandra Day O’Connor’s suggestion in her Reno concurrence that these cases allow the government to confine speech inappropriate for minors to “adult zones” on the Internet. CONVERGING DOCTRINE Fourth, in considering whether Section 505 was the least restrictive means of achieving the government’s goals, the Court conspicuously cited three commercial speech cases as establishing the applicable burden of proof. The Court’s reliance on these rulings (as well as the Bolger contraceptive advertising decision) reflects a de-emphasis of the distinction between commercial and noncommercial speech in First Amendment analysis. Since the early 1990s, the Court has subjected commercial speech restrictions to scrutiny that increasingly resembles the review applied to restrictions on noncommercial speech. The Court is now relying on principles from commercial speech cases as precedents in “strict scrutiny” noncommercial speech cases. This convergence of First Amendment doctrine makes sense. It has never been apparent why sexually oriented or “indecent” speech — simply because it is classified as “noncommercial” — should receive more protection than commercial speech. As the Court has noted, a “particular consumer’s interest [in commercial speech] may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Virginia State Board of Pharmacy. Fifth, the Court emphasized that the government had failed to provide “hard evidence” of the signal bleed problem and had provided no “proof” that a well-promoted voluntary blocking policy under Section 504 would not be an effective alternative to Section 505. The Court rejected the government’s reliance on “anecdote,” “supposition,” and “assumption,” and dismissed a government expert’s calculation of the number of children potentially exposed to signal bleed because the government had “made no attempt to confirm the accuracy of [this] estimate through surveys or other field tests.” The Court’s demand for “hard evidence” is highly welcome. In Florida Bar v. Went For It, the Court upheld an advertising restriction based in part on anecdotal evidence, noting that even in a strict scrutiny case the government could rely on “history, consensus, and ‘simple common sense.’ ” In Playboy, Justice Kennedy effectively overruled this aspect of Florida Bar, substantially increasing the government’s evidentiary burden in justifying content-based restrictions. The Court also stated: “[W]hen First Amendment compliance is the point to be proved, the risk of non-persuasion — operative in all trials — must rest with the Government, not with the citizen.” And when the case is “at best is a draw, … the tie goes to free expression.” ANALYTICAL SHIFT Sixth, the Court worked a subtle, but potentially significant speech-protective revision in least-restrictive-alternatives analysis. As Justice Stephen Breyer observed in dissent, this analysis traditionally requires the government, in defending a challenged speech restriction, to demonstrate that any less restrictive alternatives would not serve the government’s interests as effectively. In Reno, for example, the Court had stated that the CDA’s ban on “indecent” speech would be unacceptable “if less restrictive alternatives would be at least as effective” in achieving the government’s purpose. In Playboy, by contrast, the Court appeared uninterested in how effectively Section 504 would serve the government’s interests as compared with Section 505, and focused instead on whether the government had shown that Section 504 would not effectively serve those interests in some absolute sense. The significance of this shift is uncertain. It may simply reflect the Court’s preference for mechanisms that depend on elective individual self-protection rather than automatic government-imposed protection. Involuntary mechanisms, by definition, are likely to be more “effective” because they provide protection whether it is wanted or not, while voluntary mechanisms require individuals to go to the trouble of invoking them. On the other hand, Playboy may signal that the Court is further reducing the leeway the government has in choosing among possible speech restrictions. Such a cutback would be entirely consistent with the Court’s other speech-protective conclusions in this case. Cable television operators, Internet content and service providers, commercial advertisers, and ordinary citizens all have reason to applaud this important decision. David H. Remes, a partner with D.C.’s Covington & Burling, specializes in Internet regulation and First Amendment law. He has represented manufacturers in various industries in connection with advertising restrictions and proposed Internet sales bans.

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