Going beyond the Internet-centric interpretation of the Supreme Court's decision to strike down indecency provisions of the Communications Decency Act, Playboy has filed for a summary judgment declaring another section of the 1996 Telecommunications Act unconstitutional.
"The CDA decision represents the first time in 19 years that the court has analyzed the indecency standard," said Robert Corn-Revere, attorney for Playboy Entertainment. "It opens a basic First Amendment question of whether or not indecency is in fact a constitutional basis for restricting speech."
Filed in US District Court in Wilmington, Delaware, the Playboy brief represents the second time the company has asked for an injunction on Section 505 of the Telecommunications Act, which requires cable television programmers to scramble or limit the broadcast of sexually explicit programming if they cannot prevent signal bleed from the audio portion of programming. In April of this year, some two months before the Supreme Court handed down its decision in Reno v. the American Civil Liberties Union, the high court rejected Playboy's request to review the district court's refusal to grant an injunction. Playboy has estimated that its losses under Section 505 will be US$1 million a quarter.
The court's June decision, which affirmed the Internet's status as "a unique and wholly new medium of worldwide human communication," has been widely interpreted as applying only to online speech. Nonetheless, observers say the 7-2 majority in the case may create an opening for broadcasters, who have been subject to weakened First Amendment protections since a 1978 ruling that comedian George Carlin's famed "seven dirty words" could not be broadcast during prime time. "The decision definitely raises the question of the indecency standard's viability," said David Sobel of the Electronic Privacy Information Center.
That was the last issue the CDA's supporters hoped to raise. Defending the statute before the Supreme Court in March, the Justice Department said the law's prohibition on indecency was no more vague than the three-part obscenity test created by a 1973 court decision. That defense of the CDA, which relied on the argument that the act's indecency standard relied on one part of the test - that material be "patently offensive" - was a crucial mistake, said Daniel Weitzner of the Center for Democracy and Technology.
"The court's analysis cast doubt on the applicability of that standard to broadcast. It's ironic that the anti-porn groups' argument came back around and now it's biting them on the butt."
