Order Code RL33170
CRS Report for Congress
Received through the CRS Web
Constitutionality of Applying the FCC’s Indecency
Restriction to Cable Television
December 1, 2005
Henry Cohen
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Constitutionality of Applying the FCC’s Indecency
Restriction to Cable Television
Summary
Various federal officials have spoken in favor of extending the Federal
Communication Commission’s indecency restriction, which currently applies to
broadcast television and radio, to cable and satellite television. This report examines
whether such an extension would violate the First Amendment’s guarantee of
freedom of speech.
The FCC’s indecency restriction was enacted pursuant to a federal statute that,
insofar as it was found constitutional, requires the FCC to promulgate regulations to
prohibit the broadcast of indecent programming from 6 a.m. to 10 p.m. The FCC has
found that, for material to be “indecent,” it “must describe or depict sexual or
excretory organs or activities,” and “must be patently offensive as measured by
contemporary community standards for the broadcast medium.”
In 1978, in Pacifica, the Supreme Court held that, because broadcast radio and
television have a “uniquely pervasive presence” and are “uniquely accessible to
children,” the government may, during certain times of day, prohibit “[p]atently
offensive, indecent material” on these media. In 1996, however, a Supreme Court
plurality held that, with respect to “how pervasive and intrusive [television]
programming is . . . cable and broadcast television differ little, if at all.”
Then, in 2000, the Court held that governmental restrictions on speech on cable
television are, unlike those on broadcast media, entitled to strict scrutiny. Thus,
whereas, in Pacifica, the Court upheld a restriction on “indecent” material on
broadcast media without applying strict scrutiny, the Court apparently would not
uphold a comparable restriction on “indecent” material on cable television unless the
restriction served a compelling governmental interest by the least restrictive means.
It seems uncertain whether the Court would find that denying minors access to
“indecent” material on cable television would constitute a compelling governmental
interest. Assuming that it would, then, whether or not there is a less restrictive means
than a 6 a.m.-to-10 p.m. ban by which to deny minors access to “indecent” material
on cable television, it appears that a strong case may be made that applying the
FCC’s indecency restrictions to cable television would violate the First Amendment.
This is because, as the Supreme Court wrote when it struck down the ban on
“indecent” material on the Internet, “the Government may not ‘reduc[e] the adult
population . . . to . . . only what is fit for children.’” In addition, the Court, in the
2000 case mentioned above, struck down a speech restriction on cable television, in
part because “for two-thirds of the day no household in those service areas could
receive the programming, whether or not the household or the viewer wanted to do
so.”

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Constitutionality of Applying the FCC’s Indecency Restriction to Cable
Television . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Applying Strict Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Compelling Governmental Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Least Restrictive Means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Summary and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Constitutionality of Applying the FCC’s
Indecency Restriction to Cable Television
Various federal officials have spoken in favor of extending the Federal
Communication Commission’s indecency restriction,1 which currently applies to
broadcast television and radio, to cable and satellite television.2 This report examines
whether such an extension would violate the First Amendment’s guarantee of
freedom of speech.
Introduction
The FCC’s indecency restriction was enacted pursuant to a federal statute that,
insofar as it was found constitutional, requires the FCC to promulgate regulations to
prohibit the broadcast of indecent programming from 6 a.m. to 10 p.m.3 The FCC
has found that, for material to be “indecent,” it “must describe or depict sexual or
excretory organs or activities,” and “must be patently offensive as measured by
contemporary community standards for the broadcast medium.”4
Another federal statute makes it a crime to utter “any obscene, indecent, or
profane language by means of radio communication.”5 This statute has been applied
to pictures as well as words and to broadcast television as well as radio.6 In Federal
Communications Commission v. Pacifica Foundation
, the Supreme Court held that
1 47 C.F.R. § 73.3999(b).
2 This report hereinafter does not refer to satellite television, but its references to cable
television to may read to include satellite television. For references to support for applying
the indecency restriction to cable television, see, e.g., Paul K. McMasters, Inside the First
Amendment: Surrendering our choices to a sense of decency
, Gannet News Service (Apr.
11, 2005); Drew Clark, Lawmakers May Only Be Partially Pleased by Cable, National
Journal’s Technology Daily (Apr. 4, 2005).
3 47 U.S.C. § 303 note; Action for Children’s Television v. Federal Communications
Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996)
(striking down the statute insofar as it banned “indecent programming” on non-public
broadcast stations from 10 p.m. to midnight).
4 In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C.
§ 1464 and Enforcement Policies Regarding Broadcast Indecency
, File No. EB-00-IH-0089
(April 6, 2001). [http://www.fcc.gov/eb/Orders/2001/fcc01090.html]
5 18 U.S.C. § 1464.
6 See, e.g., Complaints Against Various Television Licensees Concerning Their February
1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show
, File No. EB-04-IH-0011
(Sept. 22, 2004).

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the statute does not violate the First Amendment when enforced during hours when
children are likely to be in the audience.7
The Court in Pacifica explained:
[O]f all forms of communication, it is broadcasting that has received the most
limited First Amendment protection. Thus, although other speakers cannot be
licensed except under laws that carefully define and narrow official discretion,
a broadcaster may be deprived of his license and his forum if the Commission
decides that such an action would serve “the public interest, convenience, and
necessity.” Similarly, although the First Amendment protects newspaper
publishers from being required to print the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such
protection to broadcasters; on the contrary, they must give free time to the
victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
The reasons for these distinctions are complex, but two have relevance to
the present case. First, the broadcast media have established a uniquely
pervasive presence in the lives of all Americans. Patently offensive,
indecent material presented over the airwaves confronts the citizen, not
only in public, but in the privacy of the home, where the individual’s right
to be left alone plainly outweighs the First Amendment rights of an
intruder. . . . To say that one may avoid further offense by turning off the
radio when he hears indecent language is like saying that the remedy for
an assault is to run away after the first blow.
Second, broadcasting is uniquely accessible to children, even those too
young to read. . . . Bookstores and motion picture theaters, for example,
may be prohibited from making indecent material available to children.
We held in Ginsberg v. New York, 390 U.S. 629, that the government’s
interest in the “well-being of its youth” and in supporting “parents’ claim
to authority in their own household” justified the regulation of otherwise
protected expression. . . .8
In sum, the Court held that, because broadcast radio and television have a
“uniquely pervasive presence” and are “uniquely accessible to children,” the
government may, during certain times of day, prohibit “[p]atently offensive, indecent
material” on these media, as such material threatens the well-being of minors and
their parents’ authority in their own household. Since 1978, however, when the
Court decided Pacifica, cable television has become more pervasive, thereby
rendering broadcast media a less “uniquely pervasive presence.” In Denver Area
Educational Telecommunications Consortium, Inc. v. Federal Communications

7 438 U.S. 726 (1978) (“It is appropriate, in conclusion, to emphasize the narrowness of our
holding. . . . The time of day was emphasized by the Commission. The content of the
program in which the language is used will also affect the composition of the audience.”
Id. at 750). A federal court of appeals later declared a 24-hour-a-day ban unconstitutional.
Action for Children’s Television v. Federal Communications Commission, 932 F.2d 1504
(D.C. Cir. 1991), cert denied, 503 U.S. 913 (1992).
8 Id. at 748-749.

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Commission, a Supreme Court plurality held that, with respect to “how pervasive and
intrusive [television] programming is . . . cable and broadcast television differ little,
if at all.”9
If cable and broadcast television differ little, if at all, then, one might argue, they
should be treated alike with regard to indecency restrictions. But does this mean, if
one accepts that argument, that cable should be treated like broadcast or that
broadcast should be treated like cable? In other words, should cable be made subject
to the FCC’s indecency restriction, or should broadcast no longer be subject to them?
This report will consider these questions from a constitutional standpoint, not from
a policy standpoint.
Although one might argue that the fact that broadcast media is no longer
uniquely pervasive should render Pacifica invalid, no court has found that to be the
case, and the Supreme Court has cited Pacifica with approval in recent years.10 The
FCC’s indecency restriction, therefore, appears to remain constitutional as applied
to broadcast media.11 But would it be constitutional to apply the indecency restriction
to cable?
Constitutionality of Applying the FCC’s Indecency
Restriction to Cable Television
In United States v. Playboy Entertainment Group, Inc., the Supreme Court held
that a content-based speech restriction on cable television “can stand only if it
satisfies strict scrutiny. If a statute regulates speech based on its content, it must be
narrowly tailored to promote a compelling Government interest. If a less restrictive
alternative would serve the Government’s purpose, the legislature must use that
alternative. To do otherwise would be to restrict speech without an adequate
9 518 U.S. 727, 748 (1996). The plurality, quoting words from Pacifica that appear in the
indented quotation above, added that cable television “is as ‘accessible to children’ as over-
the-air broadcasting, if not more so,” has also “established a uniquely pervasive presence
in the lives of all Americans,” and can also “‘confron[t] the citizen’ in ‘the privacy of the
home,’ . . . with little or no prior warning.” Id. at 744-745. Justice Souter concurred that
“today’s plurality opinion rightly observes that the characteristics of broadcast radio that
rendered indecency particularly threatening in Pacifica, that is, its intrusion into the house
and accessibility to children, are also present in the case of cable television. . . .” Id. at 776.
10 Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1997); United States v.
Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000); Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 245 (2002).
11 This is not to say that every application of them by the FCC is necessarily constitutional.
The FCC’s application of the restrictions to Bono’s single use of a four-letter word as a
modifier, and to Janet Jackson’s “wardrobe malfunction” during a Superbowl halftime show,
are being challenged; see CRS Report RL32222, Regulation of Broadcast Indecency:
Background and Legal Analysis
, by Angie A. Welborn and Henry Cohen.

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justification, a course the First Amendment does not permit. . . . It is rare that a
regulation restricting speech because of its content will ever be permissible.”12
The indecency restriction is content-based; therefore, for its application to cable
television to be constitutional, it must meet “strict scrutiny,” which means that it
must promote a compelling governmental interest and be the least restrictive means
to do so. This is the same standard that the Supreme Court applies to speech in
newspapers, the Internet, and every other medium except broadcast radio and
television.13 The Court does not apply strict scrutiny to broadcast media because, as
noted in the above quotation from Pacifica, the Court holds that broadcast media
have less First Amendment protection than other media.14 The Court, therefore, did
not apply strict scrutiny in Pacifica, and the fact that in Pacifica it upheld the
constitutionality of the indecency restriction as applied to broadcast media does not
imply that it would uphold its constitutionality as applied to cable.
Playboy concerned federal restrictions on a type of “indecent” material on cable
television: “signal bleed,” which refers to images or sounds that come through to
non-subscribers, even though cable operators have “used scrambling in the regular
course of business, so that only paying customers had access to certain programs.”15
These restrictions, which are found in section 505 of the Communications Decency
Act of 1996, require operators of cable channels “primarily dedicated to sexually-
oriented programming” to implement more effective scrambling — to fully scramble
or otherwise fully block programming so that non-subscribers do not receive it — or
12 Playboy, supra note 10, at 813, 818 (citations omitted).
13 The Court in Playboy wrote, however, “Cable television, like broadcast media, presents
unique problems, which inform our assessment of the interests at stake, and which may
justify restrictions that would be unacceptable in other contexts.” Id. Nevertheless, because
the Court applied strict scrutiny in Playboy, this comment apparently means not that the
Court would apply less than strict scrutiny to restrictions on cable television, but that
applying strict scrutiny to restrictions on cable television might involve considerations not
present when applying it to restrictions on other media.
14 The lower level of First Amendment protection for broadcast media dates back to Red
Lion Broadcasting Co. v. Federal Communications Commission
, 395 U.S. 367, 369 (1969),
in which the Supreme Court upheld the FCC’s “fairness doctrine,” which “imposed on radio
and television broadcasters the requirement that discussion of public issues be presented on
broadcast stations, and that each side of those issues must be given fair coverage.” The
reason that the Court upheld the imposition of the fairness doctrine on broadcast media,
though it would not uphold its imposition on print media, is that “[w]here there are
substantially more individuals who want to broadcast than there are frequencies to allocate,
it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the
right of every individual to speak, write, or publish.” Id. at 388. In Turner Broadcasting
System, Inc. v. Federal Communications Commission
, 512 U.S. 622, 639 (1994), the Court
held that this “spectrum scarcity” problem does not apply to cable television. In Denver
Area
, supra note 9, 518 U.S. at 748, the Court noted that spectrum scarcity, in any event,
“has little to do with a case that involves the effects of television viewing on children.
Those effects are the result of . . . how pervasive and intrusive that programming is.”
15 Id. at 806.

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to “time channel,” which, under an FCC regulation meant to transmit the
programming only from 10 p.m. to 6 a.m.16
“To comply with the statute,” the Court noted, “the majority of cable operators
adopted the second, or ‘time channeling,’ approach. The effect . . . was to eliminate
altogether the transmission of the targeted programming outside the safe harbor
period [6 a.m. to 10 p.m.] in affected cable service areas. In other words, for two-
thirds of the day no household in those service areas could receive the programming,
whether or not the household or the viewer wanted to do so.”17 The Court also noted
that “[t]he speech in question was not thought by Congress to be so harmful that all
channels were subject to restriction. Instead, the statutory disability applies only to
channels ‘primarily dedicated to sexually-oriented programming.’”18
The Court then applied strict scrutiny to section 505. It did not explicitly say
that shielding children from sexually oriented signal bleed was a compelling interest,
but it would “not discount the possibility that a graphic image could have a negative
impact on a young child.”19 This suggests the possibility that, even if shielding
young children from seeing graphic images on cable television is a compelling
governmental interest, the Court might not find that shielding older children from
such images is a compelling governmental interest. In addition, the Court rejected
another interest as compelling: “Even upon the assumption that the Government has
an interest in substituting itself for informed and empowered parents, its interest is
not sufficiently compelling to justify this widespread restriction on speech.”20 In any
case, it was not necessary for the Court to make an explicit finding of a compelling
governmental interest, because it held the statute unconstitutional for not constituting
the least restrictive means to advance any such interest.
The Court noted that there is “a key difference between cable television and the
broadcasting media, which is the point on which this case turns: Cable systems have
the capacity to block unwanted channels on a household-by-household basis. . . .
[T]argeted blocking enables the Government to support parental authority without
affecting the First Amendment interests of speakers and willing listeners . . . .”21
Furthermore, targeted blocking is already required — by section 504 of the
Communications Decency Act, which requires cable operators, upon request by a
cable service subscriber, to, without charge, fully scramble or otherwise fully block
audio and video programming that the subscriber does not wish to receive.22 “When
a plausible, less restrictive alternative is offered to a content-based speech restriction,
it is the Government’s obligation to prove that the alternative will be ineffective to
16 47 U.S.C. § 561.
17 Playboy, supra note 10, at 806-807.
18 Id. at 812.
19 Id. at 826.
20 Id. at 825.
21 Id. at 815.
22 47 U.S.C. § 560.

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achieve its goal. The Government has not met that burden here.”23 The Court
concluded, therefore, that section 504, with adequate publicity to parents of their
rights under it, constituted a less restrictive alternative to section 505.
Applying Strict Scrutiny
We now consider how a court might apply strict scrutiny in determining whether
applying the FCC’s indecency restriction to cable television would be constitutional.
We consider first whether a court would find that applying the restriction to cable
television would serve a compelling governmental interest, and then, on the
assumption that it would, we consider whether a court would find it the least
restrictive means to advance that interest.
Compelling Governmental Interest. When the Court considers the
constitutionality of a restriction on speech, it ordinarily — even when the speech that
is restricted lacks full First Amendment protection and the Court applies less than
strict scrutiny — requires the government to “demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in fact alleviate these harms
in a direct and material way.”24 With respect to restrictions designed to deny minors
access to sexually explicit material, by contrast, the courts appear to assume, without
requiring evidence, that such material is harmful to minors, or to consider it “obscene
as to minors,” even if it is not obscene as to adults,25 and therefore not entitled to
First Amendment protection with respect to minors, whether it is harmful to them or
23 Playboy, supra note 10, 529 U.S. at 816.
24 Turner Broadcasting, supra note 14, 512 U.S. at 664 (incidental restriction on speech).
See also, Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial
speech); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction
on campaign contributions). In all three of these cases, the government had restricted less-
than-fully protected speech, so the Court did not apply strict scrutiny. Because “indecent”
material is generally entitled to full First Amendment protection (except on broadcast
media), one might expect that the Court, in determining the constitutionality of applying the
FCC’s indecency restriction to cable television, would be all the more likely to require the
government to demonstrate that harms it recites are real and that the indecency restriction
would alleviate these harms in a direct and material way. But see the next sentence in the
text.
25 Material that is obscene as to adults is not entitled to First Amendment protection,
whether or not it is harmful to adults. Miller v. California, 413 U.S. 15 (1973); see CRS
Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes,
by Henry Cohen.

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not.26 In Pacifica, as quoted above, the Court implied that making “indecent”
material unavailable to children serves their “well-being.”27
This is not to say with certainty that the Supreme Court would find a compelling
governmental interest in denying minors access to “indecent” material. It might, for
example, distinguish among different types of “indecent” material, and, even if it
26 Interactive Digital Software Association v. St. Louis County, Missouri, 329 F.3d 954, 959
(8th Cir. 2003). The Supreme Court has “recognized that there is a compelling interest in
protecting the physical and psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not obscene by adult standards.”
Sable Communications of California v. Federal Communications Commission, 492 U.S.
115, 126 (1989). The Court has also upheld a state law banning the distribution to minors
of “so-called ‘girlie’ magazines,” even as it acknowledged that “[i]t is very doubtful that this
finding [that such magazines are “a basic factor in impairing the ethical and moral
development of our youth”] expresses an accepted scientific fact.” Ginsberg v. New York,
390 U.S. 629, 631, 641. “To sustain state power to exclude [such material from minors],”
the Court wrote, “requires only that we be able to say that it was not irrational for the
legislature to find that exposure to material condemned by the statute is harmful to minors.”
Id. at 641. Ginsberg thus “invokes the much less exacting ‘rational basis’ standard of
review,” rather than strict scrutiny. Interactive Digital Software Association, supra, 329
F.3d at 959.
In addition, before Playboy reached the Supreme Court, a federal district court wrote:
We are troubled by the absence of evidence of harm presented both before
Congress and before us that the viewing of signal bleed of sexually explicit
programming causes harm to children and that the avoidance of this harm can be
recognized as a compelling State interest. We recognize that the Supreme
Court’s jurisprudence does not require empirical evidence. Only some minimal
amount of evidence is required when sexually explicit programming and children
are involved.
Playboy Entertainment Group, Inc. v. United States, 30 F. Supp.2d 702, 716 (D. Del. 1998),
aff’d, 529 U.S. 803 (2000). The district court therefore found that the statute served a
compelling governmental interest, though it held it unconstitutional because it found that
the statute did not constitute the least restrictive means to advance the interest. As noted in
the text above, the Supreme Court affirmed on the same ground.
In another case, a federal court of appeals, upholding the FCC’s indecency restrictions
as applied to broadcast media, noted “that the Supreme Court has recognized that the
Government’s interest in protecting children extends beyond shielding them from physical
and psychological harm. The statute that the Court found constitutional in Ginsberg sought
to protect children from exposure to materials that would ‘impair[ ] [their] ethical and moral
development. . . . Congress does not need the testimony of psychiatrists and social scientists
in order to take note of the coarsening of impressionable minds that can result from a
persistent exposure to sexually explicit material. . . .’” Action for Children’s Television v.
Federal Communications Commission
, supra note 3, 58 F.3d at 662 (brackets and italics
supplied by the court of appeals). A dissenting judge in the case noted that, “[t]here is not
one iota of evidence in the record . . . to support the claim that exposure to indecency is
harmful — indeed, the nature of the alleged ‘harm’ is never explained.” Id. at 671
(Edwards, C.J., dissenting).
27 See, note 8, supra.

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found a compelling governmental interest in denying minors access to sexually
explicit material, it might find otherwise with respect to four-letter words, in light of
the fact that minors generally hear such words elsewhere than on cable television, and
in light of the fact that such words may be used as adjectives or expletives, arguably
with no sexual or excretory connotation.28 The Court might also distinguish among
minors of different ages, even with respect to access to sexually explicit material. As
noted above, in Playboy the Court seemed to leave open the possibility that it might
not find a compelling governmental interest in shielding older children from sexually
oriented material. In addition, when the Court struck down the portion of the
Communications Decency Act of 1996 that prohibited “indecent” material on the
Internet, the Court would “neither accept nor reject the Government’s submission
that the First Amendment does not forbid a blanket prohibition on all ‘indecent’ and
‘patently offensive’ messages communicated to a 17-year-old — no matter how much
value the message may have and regardless of parental approval. It is at least clear
that the strength of the Government’s interest in protecting minors is not equally
strong throughout the coverage of this broad statute.”29
The Supreme Court has cited another governmental interest that might be
asserted to justify applying the FCC’s indecency restriction to cable, but the Court
has not stated whether it is “compelling”: it is the interest “in supporting ‘parents’
claim to authority in their own household.’”30 A dissenting judge has argued that “a
law that effectively bans all indecent programming . . . does not facilitate parental
supervision. In my view, my right as a parent has been preempted, not facilitated, if
I am told that certain programming will be banned from my . . . television. Congress
cannot take away my right to decide what my children watch, absent some showing
that my children are in fact at risk of harm from exposure to indecent
programming.”31
Perhaps, however, the Supreme Court would take the approach it did in Playboy
and focus on the second aspect of strict scrutiny: whether the FCC’s indecency
restriction is the least restrictive means available to advance the government’s
interest.
Least Restrictive Means. Assuming for the sake of argument that applying
the FCC’s indecency restriction to cable television would serve a compelling
governmental interest, is there a less restrictive means by which that interest could
be served? If so, then applying the FCC’s indecency restriction to cable television
would be unconstitutional. The Court in Playboy, as quoted above, noted that there
28 The FCC, however, has ruled that “given the core meaning of the ‘F-Word,’ any use of
that word, or a variation, in any context, inherently has a sexual connotation. . . .” In the
Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the
“Golden Globe Awards” Program, File No. EB-03-IH-0110 (Mar. 18, 2004).
29 Reno v. American Civil Liberties Union, supra note 10, 521 U.S. at 878.
30 Pacifica, supra note 7, 438 U.S. at 749, quoting Ginsberg, supra note 26, 390 U.S. at 639.
See also, Playboy, supra note 10, 529 U.S. at 815.
31 Action for Children’s Television v. Federal Communications Commission, supra note 3,
58 F.3d at 670 (emphasis in original) (Edwards, C.J., dissenting).

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is “a key difference between cable television and the broadcasting media, which is
the point on which this case turns: Cable systems have the capacity to block
unwanted channels on a household-by-household basis. . . . [T]argeted blocking
enables the Government to support parental authority without affecting the First
Amendment interests of speakers and willing listeners . . . .”32
The targeted blocking, however, that the Court in Playboy found to be a less
restrictive means to keep signal bleed from viewers who object to it, would not seem
as feasible to keep “indecent” material from viewers who object to it. In the case of
signal bleed, a viewer could request blocking of channels that he knows to present
pornography. By contrast, in order for targeted blocking to keep “indecent”
programming from viewers who object to it, viewers would have to know what
channels would ever, between 6 a.m. and 10 p.m., allow on any program the
utterance of a four-letter word or the exposure of a woman’s breast, among other
things. For viewers to know this would seem to entail that every channel be required
to state whether it will refrain from transmitting “indecent” material on all future
programming, and, if a channel stated that it would, to be bound by that statement.
This requirement would appear to burden freedom of speech to the extent that it
might well violate the First Amendment.33 It might even be viewed as a prior
restraint, and prior restraints are almost always unconstitutional.34
To the extent that technology allows viewers to block particular programs as
opposed to entire channels, the same First Amendment difficulties would apparently
arise. For such blocking to be effective, producers who did not wish to be blocked
for transmitting “indecent” programming would have to agree to refrain from ever
allowing the utterance of a four-letter word on a program, even if the program
ordinarily contained nothing deemed “indecent.”
Thus, there may be no less restrictive means that would be constitutional to keep
“indecent” material off cable television during certain hours than to apply the FCC’s
indecency restrictions.35 This, however, would not necessarily mean that to apply
them to cable television would be constitutional. Two federal courts of appeals have
written that “[t]he State may not regulate at all if it turns out that even the least
restrictive means of regulation is still unreasonable when its limitations on freedom
of speech are balanced against the benefits gained from those limitations.”36 The
32 Playboy, supra note 10, 529 U.S. at 815.
33 “The distinction between laws burdening and laws banning speech is but a matter of
degree. The Government’s content-based burdens must satisfy the same rigorous scrutiny
as it content-based bans.” Playboy, supra note 10, at 812.
34 See CRS Report 95-815, Freedom of Speech and Press: Exceptions to the First
Amendment,
by Henry Cohen.
35 The government could, of course, reduce the numbers of hours per day that it bans
“indecent” material, though the Supreme Court might be less likely to find a compelling
governmental interest in a shorter ban, because a shorter ban would be less effective in
denying minors access to “indecent” material.
36 American Civil Liberties Union v. Reno, 217 F.3d 162, 179 (3d Cir. 2000), vacated and
(continued...)

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more recent of these cases affirmed a preliminary injunction against the enforcement
of the Child Online Protection Act, which banned material that is “harmful to
minors” from the Internet.37 The older case upheld FCC regulations that
implemented a statute that restricted minors’ access to obscene “dial-a-porn”
services.
It appears that a strong case may be made that applying the FCC’s indecency
restriction to cable television would be “unreasonable” under the above court of
appeals’ formulation. This is because, as the Supreme Court wrote when it struck
down the ban on “indecent” material on the Internet, “the Government may not
‘reduc[e] the adult population . . . to . . . only what is fit for children.’ ‘[R]egardless
of the strength of the government’s interest’ in protecting children, ‘[t]he level of
discourse reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox.’”38
One might reply that to apply the FCC’s indecency restriction to cable would
limit the adult population’s discourse only from 6 a.m. to 10 p.m. But the fact the
Supreme Court in Pacifica upheld such a limitation on broadcast media does not
mean that it would uphold it on cable television. In Pacifica, as noted, the Court did
not apply strict scrutiny. In Playboy, where the Court did apply strict scrutiny to a
speech restriction on cable television, it held the speech restriction unconstitutional,
in part because, as quoted above, “for two-thirds of the day no household in those
service areas could receive the programming, whether or not the household or the
viewer wanted to do so.”39 In addition, the Court struck down the ban in the
Communications Decency Act of 1996 on “indecent” material on the Internet,
notwithstanding that such material is available to adults in other media.40 It seems
clear that governmental restrictions of fully protected speech, including “indecent”
material on cable television, are unconstitutional unless they pass strict scrutiny, even
if they do not close all outlets for such speech.
36 (...continued)
remanded on other grounds sub nom., Ashcroft v. American Civil Liberties Union, 535 U.S.
564 (2002), quoting Carlin Communications, Inc. v. Federal Communications Commission,
837 F.2d 546, 555 (2d Cir. 1988), cert. denied, 488 U.S. 924 (1988).
37 In Reno v. American Civil Liberties Union, supra note 10, 521 U.S. 844 (1997), the
Supreme Court struck down the Communications Decency Act of 1996, which banned
“indecent” material on the Internet, and, in Ashcroft v. American Civil Liberties Union, 124
S. Ct. 2783 (2004) (a second Supreme Court decision in American Civil Liberties Union v.
Reno
, supra note 36), the Court upheld a preliminary injunction against enforcement of the
Child Online Protection Act, which banned “harmful to minors” material on the Internet.
In both cases, the Court applied strict scrutiny and suggested that filtering software might
be a less restrictive alternative. 521 U.S. at 844; 124 S. Ct. at 2792. This alternative, of
course, would not be an option with respect to cable television.
38 Reno, supra note 10, 521 U.S. at 875 (citations omitted).
39 Playboy, supra note 10, at 806-807.
40 Reno, supra note 10.

CRS-11
Summary and Conclusion

In 1978, in Pacifica, the Supreme Court held that, because broadcast radio and
television have a “uniquely pervasive presence” and are “uniquely accessible to
children,” the government may, during certain times of day, prohibit “[p]atently
offensive, indecent material” on these media. In 1996, however, in Denver Area
Consortium,
a Supreme Court plurality held that, with respect to “how pervasive and
intrusive [television] programming is . . . cable and broadcast television differ little,
if at all.”
The fact that a plurality of the Court views cable and broadcast television as
differing little with respect to their pervasiveness and intrusiveness might suggest
that the Court would apply the First Amendment to both media in the same way. The
Court, however, continues to cite Pacifica with approval, but, in Playboy, it held that
governmental restrictions on cable television are, unlike those on broadcast media,
entitled to strict scrutiny. Thus, whereas, in Pacifica, the Court upheld a restriction
on “indecent” material on broadcast media without applying strict scrutiny, the Court
apparently would not uphold a comparable restriction on “indecent” material on cable
television unless the restriction served a compelling governmental interest by the
least restrictive means.
It seems uncertain whether the Court would find that denying minors access to
“indecent” material on cable television would constitute a compelling governmental
interest. Although the Court has held that denying minors access to sexually explicit
material constitutes a compelling governmental interest, not all “indecent” material
is sexually explicit. In addition, the Court has suggested that it may not view minors
of all ages identically for First Amendment purposes.
Assuming for the sake of argument that the Court would find a compelling
governmental interest in denying minors access to “indecent” material on cable
television, there does not appear to be a less restrictive means than the FCC’s
restrictions to advance this interest, other than banning “indecent” material for fewer
hours per day. The lack of a less restrictive means, however, would not necessarily
mean that to apply the FCC’s restrictions to cable television would be constitutional.
This is because, as two federal courts of appeals have written, “[t]he State may not
regulate at all if it turns out that even the least restrictive means of regulation is still
unreasonable when its limitations on freedom of speech are balanced against the
benefits gained from those limitations.” The Supreme Court has not spoken on this
proposition, however.
It appears that a strong case may be made that applying the FCC’s indecency
restriction to cable television would be “unreasonable” under this formulation. This
is because, as the Supreme Court wrote when it struck down the ban on “indecent”
material in the Internet, “the Government may not ‘reduc[e] the adult population . . .
to . . . only what is fit for children.’” In Playboy, the Court, applying strict scrutiny,
struck down a speech restriction on cable television, in part because “for two-thirds
of the day no household in those service areas could receive the programming,
whether or not the household or the viewer wanted to do so.” Thus, it appears likely
that a court would find that to apply the FCC’s indecency restriction to cable
television would be unconstitutional.