High court to rule on smut law Justices to examine effort by Congress in 1992 to clean up cable TV, radio

November 14, 1995|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court stepped yesterday into the quarter-century-long constitutional dispute over the government's efforts to keep dirty words and sex scenes off television and radio.

After standing on the sidelines for years while lower courts refereed, the justices said they would rule on the constitutionality of Congress' move three years ago against "indecency" on cable television.

Congress has declined to censor sexually explicit cable programs on its own. Instead, it gave the nation's cable-TV station operators the power, when they let outsiders use their channels, to ban programs those operators deem indecent.

The 1992 law does not apply to the channels that station operators themselves use. Rather, it covers only so-called "dedicated channels" -- those leased to outsiders, and those that local governments use for public service or education.

Those channels make up as much as 10 percent of individual stations' overall programming. There is at least one such channel on each of the 11,000 cable systems.

Industry sources insist that indecency is not a pervasive problem on dedicated channels. But operators have long sought authority to reject programs they consider too sexually explicit for their customers.

Under a 1984 law, cable stations were required to set aside those channels, but were barred from control over programming. In 1992, Congress gave the stations authority at least to veto indecency.

For channels leased to others, stations may permit such programs. But the stations must offer them on a separate channel and block them unless customers ask to view them. No such separation and blocking is required for indecent programs on government access channels; Congress did not regard that sector as a problem.

Organizations that prepare programs for access channels, and groups whose members watch cable TV, contended in their constitutional challenge that Congress had set up a system of censorship over cable TV, making the stations the censors on its behalf.

A lower federal court ruled, however, that the stations were not part of the government, and thus had no duty to obey the First Amendment's free-speech clause.

Although Congress ordered cable systems to set up separate channels for indecent programs, the lower court ruled that did not violate the First Amendment.

A decision by the Supreme Court on the 1992 law's restrictions is expected by summer. The court also is expected to act on a constitutional challenge by the regular, non-cable broadcast industry to a separate 1992 law that restricted the hours when regular TV and radio could broadcast indecent programs.

All the restrictions at issue involve "indecency," rather than outright obscenity. Obscene programs are banned from cable and broadcast programming.

The Supreme Court, in other orders yesterday, chose to bypass several new legal issues.

Political rhetoric

The court refused to be drawn into a constitutional conflict over the use of harsh personal attacks as a political campaign tactic. It declined to hear a plea by a defeated congressional candidate in Florida for the right to use a state libel law to curb a local newspaper's accusations of scandal.

Magda Montiel Davis, a Miami lawyer who was defeated in 1992, contended in her appeal that the the First Amendment does not give campaign commentators immunity from libel for personal attacks not based on fact.

A Spanish-language newspaper had accused Ms. Davis and her husband of being supporters of Cuban leader Fidel Castro -- a damaging assessment in South Florida's community of Cuban exiles.

A Miami judge had thrown out Ms. Davis' libel claim.

Rights of gays

By refusing to hear a case from Wisconsin, the court silently contributed to a trend in state courts to give homosexuals the right to establish formal legal relationships with children for whom they have acted as parents.

The Wisconsin Supreme Court ruled in June that a former partner in a lesbian relationship with a child's mother has the right under state law to seek visitation privileges with the child. The women's relationship had broken up.

The mother of the child had challenged the Wisconsin ruling, urging the Supreme Court to rule that she alone could control her child's contacts.

The state court, while allowing former homosexual partners to seek visitation rights, ruled that state law did not allow them to seek legal custody of the children in the household.

Last week, New York's highest state court ruled that a lesbian mother may adopt her partner's child, thus keeping the family together with a full legal relationship.

State high courts in Massachusetts and Vermont have ruled the same way.

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