The Supreme Court last week told Congress and the president-a president who used to teach constitutional law, no less-what they should have known and probably did know already: that the Communications Decency Act of 1996 was unconstitutional.
The court's holding releases adult pay channels such as Spice and The Playboy Channel from restrictions that kept them off the air for much of the day unless their signals to nonsubscribers were completely scrambled. Because many cable operators lacked that technology, the sexually oriented programming could only be offered from 10 p.m. to 6 a.m.
The Constitution exists, the court said, "precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed." These judgments are for the individual to make "not for the Government to decree, even with the mandate or approval of a majority." In other words, the Constitution protects free speech, even when the majority disapproves of the speech in question. Where technology exists to expand choice, the court noted, it is not for the government to limit it.
Much of Congress and certainly the president know this, of course. Perhaps that's why their case was so embarrassingly weak. Not only was there little effort to fashion a solution with the least impact on free speech, the high court noted, there was no showing of evidence that the exposure of children to signal bleed was a problem at all, much less one that required federal law. The court noted that the less restrictive alternative to limiting the transmission of sexually oriented pay channels-a blocking of individual households-was barely ever requested. "The uncomfortable fact," wrote the court, is that the public response to this perceived problem was "a collective yawn."
It is remarkable how quickly the commitment to freedom of speech vanishes when the speech in question is unpopular-either in the eyes of a majority, a vocal minority or the leaders themselves. Fortunately, the Supreme Court has the last word on these matters, and, lately, it has been giving the First Amendment greater deference than the other two branches of the federal government.
So chalk up one for the First Amendment, but don't put down your guard. Last week a group of senators, who also should know better, asked the FCC, in essence, not to renew the licenses of digital TV stations that, in the government's opinion, show too much sex or violence. We can't think of a more direct and intrusive infringement of broadcasters' free-speech rights. If the FCC takes this one seriously-and we cannot believe it will-then all we can say is, we'll see you in court.