## Facts

- Congress enacted §505 of the Telecommunications Act of 1996 (47 U.S.C. § 561) to address “signal bleed,” where nonsubscribers could inadvertently perceive partial audio or video from sexually explicit premium cable channels.
- Section 505 required cable operators carrying channels “primarily dedicated to sexually-oriented programming” to either (1) fully scramble or fully block those channels or (2) limit their transmission to 10:00 p.m. to 6:00 a.m.
- Section 504 of the same Act separately required cable operators, upon a subscriber’s request, to block any channels the subscriber did not wish to receive (household-by-household blocking).
- Playboy Entertainment Group, Inc., an operator of adult cable channels, challenged §505 as a content-based restriction on protected speech.
- A three-judge federal district court held §505 unconstitutional under the First Amendment and enjoined its enforcement, reasoning that §504 was an effective, less restrictive alternative.
- The federal government appealed directly to the Supreme Court.

## Issues

1. Whether §505 is a content-based regulation of speech triggering strict scrutiny under the First Amendment.
2. Whether §505 fails strict scrutiny because a less restrictive alternative—subscriber-initiated blocking under §504—could achieve the government’s objectives.

## Decision

- The Supreme Court affirmed the judgment enjoining §505.
- The Court held §505 is content-based because it restricts speech due to concern about the impact of sexually oriented content on viewers.
- Applying strict scrutiny, the Court accepted the government’s interests (protecting children, supporting parental authority, and protecting residential privacy) as significant and potentially compelling.
- The Court concluded §505 was not narrowly tailored because §504 provided a plausible, less speech-restrictive alternative (household-specific blocking) and the government did not prove that alternative would be ineffective.
- The Court found the record did not establish a pervasive, nationwide problem justifying a blanket daytime restriction on adult cable programming.
- Dissents would have deferred more to Congress’s judgment and treated §504 as practically insufficient because it depended on parental awareness and initiative.

## Legal Principles

- Regulations justified by concern for the effects of a message’s subject matter on listeners are content-based and generally trigger strict scrutiny.
- Under strict scrutiny, a content-based restriction must be narrowly tailored to serve a compelling government interest.
- 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 to show the alternative would be ineffective.
- The First Amendment protects not only the speaker’s right to communicate but also the rights of willing adult viewers to receive protected, non-obscene speech in the home.

## Conclusion

Section 505’s time-channeling or mandatory full-blocking scheme for sexually oriented cable channels was unconstitutional because it imposed a content-based restriction that was not narrowly tailored; subscriber-requested blocking under §504 offered a less restrictive means, and the government failed to show that approach would not adequately protect children and household privacy.


United States v. Playboy Ent. Grp., Inc., 529 U.S. 803 (2000)