United States v. Playboy Entertainment Group, Inc.
Supreme Court of the United States · 2000 · Constitutional Law
Constitutional LawFirst AmendmentFreedom of SpeechContent-Based RegulationCable Televisionstrict scrutinycontent-based regulationleast restrictive means
Facts
Section 505 required cable operators carrying channels primarily dedicated to sexually oriented programming either to fully scramble or fully block those channels or to limit their transmission to the hours between 10 p.m. and 6 a.m. Because many operators could not ensure perfect scrambling, most complied by time channeling, which eliminated the programming for two-thirds of the day in affected service areas, including for willing adults. Playboy's programming was conceded to be protected, not obscene, speech. Another statutory provision, § 504, required cable operators upon subscriber request to block unwanted channels on a household-by-household basis without charge.
Issue
Whether § 505, which restricts transmission of sexually explicit cable programming because of its content, violates the First Amendment when a less restrictive alternative exists in the form of household-by-household blocking under § 504.
Rule
A content-based restriction on protected speech must satisfy strict scrutiny: it must be narrowly tailored to serve a compelling government interest, and if a less restrictive alternative would serve the government's purpose, the government must use that alternative. When a plausible less restrictive alternative is identified, the government bears the burden of proving that the alternative would be ineffective.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Congress enacts a law requiring satellite television providers to transmit channels devoted primarily to graphic horror programming only between 11 p.m. and 5 a.m., citing concern that children may glimpse frightening scenes while channel surfing. Providers already offer free household-by-household channel blocking on request in Phoenix, Arizona and nationwide. The covered films are concededly protected speech.
If a provider challenges the statute under the First Amendment, which is the strongest argument for invalidating it?
Explanation. The majority held that a law targeting speech because of its content is presumptively invalid and subject to strict scrutiny, even if it burdens rather than completely bans speech. If a plausible less restrictive alternative exists, such as household-by-household blocking, the government must prove that alternative would be ineffective. A daytime or evening time-channeling rule that restricts willing adults' access to protected speech is unconstitutional unless the government carries that burden. (Derived from United States v. Playboy Entertainment Group, Inc. (2000).)