United States v. Playboy Entertainment Group, Inc. - Oral Argument - November 30, 1999

United States v. Playboy Entertainment Group, Inc.

Media for United States v. Playboy Entertainment Group, Inc.

Audio Transcription for Opinion Announcement - May 22, 2000 in United States v. Playboy Entertainment Group, Inc.

Audio Transcription for Oral Argument - November 30, 1999 in United States v. Playboy Entertainment Group, Inc.

William H. Rehnquist:

We'll hear argument now in No. 98-1682, the United States v. Playboy Entertainment Group.

Mr. Feldman.

James A. Feldman:

Mr. Chief Justice, and may it please the Court:

This case concerns Congress' attempt to address the problem of graphic sexually explicit adult programming that is available on cable televisions... on cable television to minors with merely the flip of a dial.

It's available to children even though their parents have not subscribed to the cable channels carrying the programming and therefore have every reason to believe that they're not receiving that programming on their televisions.

The phenomenon is known as signal bleed, and it occurs when a cable operator scrambles partially the video portion of a premium channel like that operated by appellee, but... and... but meanwhile the soundtrack from that channel and other portions of the video programming are allowed to get through, even to non-subscribers.

As a result, children with access to cable television gain access intentionally or accidentally to what the district court termed the virtually 100 percent sexually explicit programming.

Sandra Day O'Connor:

Mr. Feldman, is there evidence in the record of actual signal bleed as opposed to the potential for it?

I mean, what... what does the record show?

James A. Feldman:

There's very substantial evidence of that.

In the first place... and I think the easiest way to approach that is the district court found that on most cable television systems... and there's some variation, to be sure, but on most cable television systems, the audio portion of programming on channels like those that Playboy or Spice or Spice Hot operates... the audio portion goes through unhindered.

So, that... that's there and that's a finding of the district court.

Sandra Day O'Connor:

While I have you interrupted, what level of scrutiny do you think our precedents dictate... govern our analysis here in light of the fact that we've said that cable television and the Internet are entitled to strict scrutiny?

James A. Feldman:

The Court has never said that with respect to the question of indecency on cable television, and in fact, the Court has specifically declined to decide that question in the past on a number... several occasions.

In our view, the right answer, for the reasons given in our brief, is not quite strict scrutiny; that is, there should be a showing of a compelling interest because it is a content-based regulation.

But some deference should be given in light of the factors that the Court has noted in Pacifica and later cases, the pervasiveness into the... in the home, the harm to children.

Some deference should be given to Congress' choice among alternatives of... of how to deal with the problem.

And especially that's true where what the... the alternative that Congress has chosen is time-channeling as one option, which permits the cable operator to show the... show the material from 10:00 p.m. to 6:00 a.m. unhindered and with no restrictions.

That is the... that's the solution that the Court approved in Pacifica, and it's a reasonable accommodation of the competing interests.

It keeps--

Antonin Scalia:

Mr. Feldman, do... do I have to... do I have to assume, for purposes of this case, that what is at issue here is just what you call indecency and not obscenity?

I mean, I've read some of the footnotes in... in your brief that describe... describe these matters.

My law clerks have looked at the videos that were lodged, and I wouldn't even read the descriptions in... in public.

It seems to me obscenity.

James A. Feldman:

--I think that for purposes of this case you have to assume that it's indecency.

Antonin Scalia:

Why do I have to assume that?

James A. Feldman:

Well, because... I suppose because that's... that's what... insofar as... insofar as there's obscenity that's being broadcast on cable television, it's already independently unlawful under the statute.

Antonin Scalia:

Well, you... you can have... you can have more than one means of... of preventing that evil, it seems to me.

There's no factual finding of the court below that this was not obscenity, is there?

And even if there were, I just can't... can't imagine that what you describe in your brief doesn't qualify as obscenity.