United States v Playboy
...ium channel” (USDOJ 3). The problem with RF scrambling is that it does not scramble the audio, and sometimes the picture momentarily clears. The second method to block premium channels is by using a baseband scrambling system. Baseband makes the video image so scrambled that it can rarely be made out. Some of the baseband scramblers also are capable of scrambling the audio. “The limitations of these scrambling systems give rise to “signal bleed” in any system that carries premium programming. All customers of the system receive the scrambled signal on all televisions that are connected to the cable system. As a result, the cables in those systems that carry premium programming, but do not conform to the scrambling and blocking requirements of Section 505, typically carry a partially scrambled video signal and a completely clear audio signal of the programming, including, when offered, sexually explicit programming” (USDOJ 4). The plaintiffs of this case were the United States of America, Janet Reno, Attorney General, the United States Department of Justice, and the Federal Communications Commission (FCC). The defendants were Playboy Entertainment Group Inc. and Spice Entertainment Companies, Inc. Spice Entertainment Companies Inc. chose not to participate in the litigation after not receiving a preliminary (summary) judgment. Playboy filed its case on February 26, 1996 “seeking declaratory and injunctive relief against the operation of Section 505. The complaint alleged that Section 505 violates Playboy’s rights under the First Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment” (USDOJ 5). The First Amendment states that, “Congress shall make no law abridging the freedom of speech.” Playboy believed that the Communications Decency Act section 505 limited their right to free speech because it was now censored. Spice Entertainment Companies, Inc. also filed the same suit. On November 8, 1996, the district court of Delaware denied Playboy and Spice a motion for a preliminary (summary) judgment. The court said that Section 505 “does not seek to ban sexually explicit programming, nor does it prohibit consenting adults from viewing erotic material on premium cable networks if they so desire. Instead, Section 505 permits cable operators to provide sexually explicit programming to willing subscribers if the operators avail themselves of either of two alternative approaches to protecting non-subscribers-full scrambling of audio and video, or time-channeling” (USDOJ 5). The case was then heard on March 4-6, 1998. On December 28, 1998, the district court came to a conclusion that Section 505 is unconstitutional under the First Amendment. They said that it is only constitutional if the government proves that it “is the least restrictive alternative” (USDOJ 6). Meaning that the government must prove that there is no other way to censor it so that it is less restraining. The government provided three reasons supporting its constitutionality: “the Government’s interest in the well-being of the nation’s youth-need to protect children from exposure to patently offensive sex-related material”; ”the Government’s interest in supporting parental claims of authority in their own household-the need top protect parents’ right to inculcate morals and beliefs in their children”; “the Government’s interest in ensuring the individual’s right to be left alone in the privacy of his or her own households from unwanted communications” (USDOJ 6). Despite the governments arguments the court still ruled that it is not the least restrictive alternative. The court said that time channeling was extremely restrictive because 30%-50% of Playboy’s viewers viewed prior to 10 pm. The court then went on to suggest that Section 504 might be less restrictive. Section 504 says that it permits subscribers to request a free blocking device, which eliminates the need for full scrambling or time channeling. They also recommended that a new part of Section 504 be added. The new part would require adequate notice. This means that the cabl...