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33 U. Tol. L. Rev. 431 (2001-2002)
United States v. Playboy - Children and Sexually Explicit Material - Whose Problem Is It

handle is hein.journals/utol33 and id is 443 raw text is: UNITED STA TES v PLA YBOY CHILDREN AND
Nicole 1. Khoury
T HE legality of obscenity and sexually explicit materials has been an issue of
debate for years. Obscenity is unprotected speech while the latter is deemed
protected, although subject to government regulation.' Defining obscenity and
sexually explicit is no longer at issue; instead, the focus is on whether these
materials cause harm to children and non-consenting adults. Content based
government regulations on protected speech are subject to a strict scrutiny standard
to determine whether the government's compelling interest was advanced in the
least restrictive way 2 The government asserts that its compelling reason to regulate
sexually explicit material is to protect children from subject matter parents find
inappropriate? Children are often influenced by what they see on television,
particularly when the programming is sexually explicit in nature. The troubling
question is whether a potential harm to children justifies a regulation that burdens
First Amendment rights.
Cable television offers many alternatives to subscribers, including sexually
explicit programming such as the Playboy channel. Problems arise when those who
do not subscribe to a particular channel are exposed to the materials it provides.
When the material is sexually explicit, how much harm occurs to those who do not
consent to any sex scenes appeanng on their televisions? This phenomenon, known
as signal bleed, was the spark behind the U.S. Supreme Court's decision in United
States v. Playboy Entertainment Group, which protected Playboy's right under the
First Amendment to show its programming at all hours of the day4 Because the
case involved content based discrimination, seemingly regulat[ing] the substance
of the message,' the Court applied strict scrutiny to ensure that a compelling
governmental interest was fulfilled in the least restrictive means possible.
In addition to the major arguments regarding harm, a more controversial question
is whether this is a governmental problem at all. Perhaps it is the obligation of
parents to teach and control what their children watch. Parental rights have often
been the topic of Supreme Court decisions.6 According to the Court, parents have
I. See United States v. Playboy, 529 U.S. 803, 811-12 (2000).
2. See id. at 809-10.
3. See id at 811.
4. See id. at 806.
5. Megan G. Rosenberger, Comment, De Facto Censorship: Adult Content Video Scrambling
and the First Amendment, 8 CoMMLAw CONSFECUTUS 99, 105 (2000).
6. See Meyers v. Nebraska, 262 U.S. 390,400 (1923). See generally Pierce v. Soc'y of Sisters,
268 U.S. 510 (1925).

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