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New York Law Journal
Communications and Media
Friday, June 2, 2000
Playboy Escapes from Breyer's Patch
By James C. Goodale
One of the more fascinating stories of the present Supreme Court is the battle
between Justices Breyer and Kennedy as to what the First Amendment means. After last
week's Playboy cable decision, Kennedy and the First Amendment appear to be the clear
It could be said Justice Kennedy beat Justice Breyer 5 to 4 because that was the
margin of Playboy's victory. Playboy sought from the Supreme Court the right to deliver
its cable channel all day long in scrambled form in order to market it better. Congress,
however, permitted Playboy to deliver its channel all day long only if it was effectively
Playboy could not scramble effectively. The signal “bled,” which means that you
could see part of the channel and hear audio during daytime hours. And so, under §505
of the Communications Decency Act, Playboy could not run the channel at all except at
night when children could not see it.
Justice Kennedy decided §505 was unconstitutional. There was no need to knock
Playboy off the cablewaves altogether in the daytime, albeit only in bleeding form, when
there was a less draconian way to deal with the problem — namely by relying on a
blocking request made by parents.
Justice Breyer, who dissented with three other Justices, would have left the law in
place. Playboy's loss of speech rights was minimal and the requirement that Playboy go
dark in the daytime was a more effective and practical way to protect children from
sexually oriented programming than a blocking device.
Believe it or not, many of the First Amendment battles of today are fought over
how laws affecting speech are implemented. Everyone on the Court agreed — or
assumed — Playboy not only had full First Amendment rights (like a newspaper) but also
had the right to distribute its programming since it was not obscene (only indecent). The
disagreement was over how to protect children in the process.
Justice Breyer apparently sees a much larger role for government in this process
than Justice Kennedy. The government can force Playboy (a) to scramble so that it does
not bleed, and (b) if not, Playboy can wait until night time when the children are in bed.
If there is a less restrictive alternative available such as channel blocking, it must be
proved to be similarly effective as making Playboy go dark. He seemingly does not
believe parents can be made sufficiently aware of the blocking possibility so that they
will be energized to use it.
Justice Breyer was deeply concerned in another indecency cable case (Denver)
about inert parents (who do not supervise their children). In Playboy, he addressed this
concern by requesting the government to step in to protect children against unwanted
programming. Kennedy's solution: Parents can take care of their children themselves.
At issue in this dialogue between Justices Kennedy and Breyer is an important
question as to how the First Amendment is applied today in the real world. Forget that
the First Amendment is about clear and present danger or shouting fire in a crowded
theater. Those days are long past.
What the Court does generally now when a First Amendment challenge has been
made to a law, is to scrutinize it up and down to see if there is a compelling interest for
the government to have passed it in the first place and, if so, to see if it is written in the
narrowest way – that is to say, whether it is narrowly tailored. Technically lawyers call
this “Strict Scrutiny.”
Justices Breyer and Kennedy disagree as to what “full First Amendment”
protection means or, in effect, what “Strict Scrutiny” means and how it works.
When Justice Kennedy looks at a law which interferes with Playboy's speech
rights, he looks for the least restrictive way to curtail those rights – e.g., in the case of
cable TV, through the use of channel blockers. When Justice Breyer looks at the same
kind of law he looks at which alternative is the most effective, regardless of its impact on
speech or whether it is the least restrictive.
Justice Breyer is, however, really the new boy on the block. “Strict Scrutiny” has
for years been held by the Court to mean exactly what Justice Kennedy says it means.
Justice Breyer tried to change all that in Denver, an absolutely disastrous case for
the First Amendment, which also involved cable television. He wrote a plurality opinion
in Denver where he changed “Strict Scrutiny” to mean close scrutiny which only requires
that laws be “appropriately tailored,” “sufficiently tailored” or “carefully and
appropriately addressed,” not narrowly tailored.
His opinion drew a withering attack from Justice Kennedy who suggested,
because Justice Breyer departed from precedent, that Justice Breyer should consult An
Introduction to Legal Reasoning, a text for first-year law students. Critics were also not
kind to the opinion (see e.g. “Caught in Breyer's Patch,” (New York Law Journal, July 21,
1996, p.1)).
When Reno was decided, it was a huge national story because the Court treated
the Net so favorably for First Amendment purposes. On close inspection, however, it
appeared the Court waffled on what full First Amendment protection meant. Instead of
using the magic phrase “least restrictive alternative” it said: “[the] burden on adult speech
is unacceptable if less restrictive alternatives would be at least as effective in achieving
the legitimate purpose that the statute was enacted to serve.” Accordingly, the Court
appeared to still be caught in the patch created by Justice Breyer in Denver. With the
Playboy case, the Court, the First Amendment and Playboy itself, all seem to have
escaped Justice Breyer's patch unscathed.
Which leaves the question of how to account for Justice Breyer's views. His
disagreement with Justice Kennedy is a classic liberal-conservative argument over the
role of government in the regulation of speech. But Justice Breyer, the supposed liberal,
is taking the conservative view (more regulation) and Justice Kennedy, the conservative,
the liberal one (less regulation).
A quick answer to this question is that labels for those on the Court probably do
not mean that much.
Another is that Justice Breyer, whose background is in administrative law where
deference to government is its essence, is still under its spell.
Time will tell.
After all Justice Blackmun seemed to be once under Chief Justice Warren
Burger's spell when they were known as the “Minnesota Twins,” yet he later became a
champion of civil liberties. In the meantime, the First Amendment community will have
to rely on Justice Kennedy and his view of the First Amendment for its protection.
James C. Goodale, a Debevoise & Plimpton lawyer, is the former vice-chairman of The
New York Times.