Parental Initiative in the Age of Signal Bleed

The Yale Law Journal [Vol. 109: 627 of overhauling their scrambling technology. 8 Since February of 1996, Playboy Entertainment Group has sought a declaratory judgment that the provisions of section 505 violate the First Amendment and injunctive relief preventing their enforcement. In the process, Playboy has been granted a temporary restraining order, 9 denied a preliminary injunction, 10 and granted a permanent injunction. 11 Now, for the second time, 12 United States v. Playboy Entertainment Group 13 is before the Supreme Court.

This case deserves more attention than it has received. Signal bleed represents what may become an all-too-familiar phenomenon: diffusive indecent speech and a technology designed to filter that speech that is only partially effective, that allows traces of indecency to "bleed" through. From the beginning, the hinge on which Playboy has turned is the question of whether a less restrictive fix for signal bleed is available in section 504 of the CDA, which enables cable subscribers to request the complete scrambling of any channel, indecent or otherwise, free of charge. 14 Students of Reno v. ACLU 15 may recognize in this question a conventional dichotomy of First Amendment thinking on indecency filtering: Is the facilitation of parent-initiated filtering sufficient to protect minors from indecent speech, or should providers be required themselves to implement costly, systemic, and possibly ruinous filtering regimes? Underlying both sides of this d ichotomy is a more fundamental question, one that confounded the lower courts in Playboy and that has not yet been adequately addressed by the Supreme Court: What degree of parental initiative should First Amendment doctrine demand or expect? The Reno Court evaded this question by betting that "reasonably effective" or "at least as effective" parent-initiated filtering regimes "will soon be widely available." 16 But in section 504 that regime is available. The future of parental initiative is now. section 504's full-scrambling provisions, the court that issued the permanent injunction in Playboy expanded the concept of parental initiative to include the possibility of parental abstention, or informed parental inaction. This is an important advance in current First Amendment doctrine. As less restrictive parent-initiated filtering mechanisms become "widely available" throughout the electronic media, it is likely that many parents will elect not to use them, and will do so notwithstanding government claims that indecency harms their children. Lest the momentum of Reno be reversed, least-restrictive-alternative analysis needs to be prepared to defend this result. In its development of the concept of informed parental abstention, the Playboy district court demonstrates how this defense may succeed.

Though Playboy is properly understood as a sequel to Reno, it arrives at the Supreme Court from a different but no less troubled region of the First Amendment landscape, the "doctrinal wasteland" 17 of the cable -television medium. The current state of the art in First Amendment doctrine relating to cable is Denver Area Educational Telecommunications Consortium v. FCC, 18 a case which one commentator has called "arguably . . . the nadir of the Court's First Amendment jurisprudence." 19 The fractured authorities of Denver Area failed to clarify whether content-based regulations of cable television should receive strict scrutiny, as apparently endorsed by Turner Broadcasting System v. FCC, 20 or some lower standard of scrutiny, such as that applied to the radio-broadcast medium in FCC v. Pacifica Foundation. 21 For better or worse, Denver Area was handed down as a work in progress. Its plurality urged caution before the new media but, in doing so, produced a cautionary object lesson in support of the proposition that medium-specific considerations are properly analyzed through the application of strict scrutiny. 22 Playboy has proven to be another such object lesson. It has confirmed Justice Kennedy's prediction that the Denver Area plurality's "flight from 17. Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 813 (1996) (Thomas, J., concurring in the judgment in part and dissenting in part).

18. 518 U.S. at 727. 19. James C. Goodale, Caught in Breyer's Patch, 216 N.Y. L.J. 1 (1996). 20. 512 U.S. 622, 637 (1994) ("[T]he rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation . . . does not apply in the context of cable regulation.").

21. 438 U.S. 726 (1978) (holding that, in light of the "pervasiveness" of the medium, the FCC could use administrative sanctions to regulate indecent speech in radio programming).

22. See Denver Area, 518 U.S. at 804 (Kennedy, J., concurring in part and dissenting in part) ("[Pervasive-medium] concerns are weighty and will be relevant to whether the law passes strict scrutiny. They do not justify, however, a blanket rule of lesser protection for indecent speech."). The Yale Law Journal [Vol. 109: 627 standards" 23 would "sow confusion in the courts bound by our precedents." 24 After postponing its preliminary injunction decision until the Supreme Court's ruling in Denver Area, the three-judge district court was clearly somewhat mystified as to how to proceed in its "aftermath." 25 In quick succession, the Playboy court noted the plurality's unwillingness to "declare a 'rigid single standard,'" acknowledged the strict scrutiny standard endorsed by the "other five members of the Court," and then settled upon "strict scrutiny or something very close to strict scrutiny." 26 "[W]hatever the standard of scrutiny," 27 the district court upheld section 505 "[b]ecause the Supreme Court endorsed a time-channeling solution in very similar circumstances in Pacifica Foundation." 28 This method did not survive in the opinion granting the permanent injunction. There, the court made only passing reference to Pacifica and Denver Area and cited the later case as authority for the application of conventional least-restrictive-alternative analysis. 29

If it is true, as many have argued, that the age of medium-specificity is in its twilight, 30 then Turner and Pacifica form a dialectic waiting to be transcended. Denver Area implies as much, and the lower-court history of Playboy suggests a certain ripeness. The new synthesis for content-based regulations of the electronic media will likely be called "strict scrutiny," perhaps in Playboy, perhaps elsewhere. If parental initiative is to play any role in this new synthesis, Pacifica's notion of pervasiveness must be reformulated to reflect "the new technology." 31 This reformulation should take two forms.

First, notwithstanding three decades of McLuhanesque hype, 32 First Amendment jurisprudence should consider the pervasiveness of the content, not of the medium. The opinion granting the permanent injunction in Playboy properly demonstrated the importance of this distinction. For the district court, the gravamen of the case was not whether cable television was a pervasive medium, but whether the specific indecent content at issue was itself pervasive. The court discounted the Government's evidence of households with the "potential to be exposed" (pervasive-medium evidence) and demanded instead some quantitative evidence of households "actually exposed" (pervasive-content evidence). 33 In qualitative terms, the court implied that even when exposure to signal bleed does occur, its indecent content is often garbled beyond recognit ion, rendering the images harmless to children. 34 Thus, notwithstanding the pervasiveness of the medium, the court concluded that signal bleed was not a "pervasive problem." 35 As we "approach the day of using a common receiver" 36 for all content, for CNN as well as for an individual's dead letter to the web, this distinction between the medium and the varying reach of its messages becomes all the more meaningful.

Second, indecency jurisprudence should calibrate pervasiveness according to the extent of control that an individual can exert over the receipt of content through the medium at issue. 37 From this follows a "spectrum of control . . . for the electronic media," 38 with broadcasting at one extreme and the telephone or the World Wide Web at the other. 39 Though Playboy would appear to present classic broadcast-medium facts, in that a child may encounter signal bleed accidentally by browsing through cable channels, a "spectrum of control" analysis of section 504 urges a different, more promising result. Indeed, t he Playboy district court demonstrated the potential of this analysis when it speculated that section 504 might control children's exposure to signal bleed more effectively than the broadcast-era time channeling provisions of section 505, since "a resourceful minor can still watch signal bleed after the safe-harbour hours," whereas "parental vigilance" can eliminate signal bleed altogether. 39. The Supreme Court has already begun to move toward this theory of pervasiveness, though indirectly, in its application of "affirmative steps" analysis to the Internet and dial-a-porn. See Reno v. ACLU, 521 U.S. 844, 867 (1997) (noting the district court's finding that "the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material."); Sable Communications v. FCC, 492 U.S. 115, 127-28 (1989) (" [T]he dial-it medium requires the listener to take affirmative steps to receive the communication. There is no 'captive audience' problem here; callers will generally not be unwilling listeners."). 40. Playboy III, 30 F. Supp. 2d at 719. The Yale Law Journal [Vol. 109: 627 III Taken together, sections 504 and 505 form a "multi-layered" 41 contentbased regulatory scheme. As a filtering mechanism initiated and controlled by the receiver of content, section 504 is said to be the likely future of indecency regulation. As a filtering mechanism initiated and controlled by the transmitter, section 505 is said to be its likely past. 42 When the Playboy permanent-injunction court applied "strict scrutiny or something very close to strict scrutiny," it found itself wandering between these two worlds. In enjoining section 505, the court arrived at the right result. It did so, however, by finessing a question that continues to confuse indecency jurisprudence: How should least-restrictive-alternative analysis interpret parents' failure to take advantage of the indecency controls made available to them?

The issue came last in the opinion and nearly unraveled everything before it. The court noted that the Government had supplemented the record with survey evidence concerning a fourteen-month period when section 504 was in effect and section 505 was not. During this period, cable system operators distributed section 504 blocking technology to only 0.5% of their subscribers. While the Government presented this statistic as evidence of the ineffectiveness of section 504, Playboy argued that it showed only the "lack of parents' concern." 43 The court agreed with Playboy. The 0.5% statistic was "consistent . . . with a societal response that signal bleed is not a pervasive problem." 44 Such a result must have surprised the Government. In the Playboy court's preliminary-injunction opinion, the section 504 alternative failed for want of adequate notice to or adequate response by parents, yet here it somehow thrived. Perhaps more suprisingly, the court then pointed to an additional problem with the Government's interpretation of its survey evidence: The interpretation was "premised on adequate notice to subscribers. It is not clear, however, from the record that notices of the provisions of § 504 have been adequate." 45 Accordingly, the court volunteered a shorthand version of "adequate notice" and specified appropriate venues for its broadcast and publication. 46 41. See J.M. Balkin, Media Filters, the V -Chip, and the Foundations of Broadcast Regulation, 45 DUKE L.J. 1131, 1155 (1996) ("What I fear is that the V-chip will be used instead to impose an additional layer of content-based regulation on top of existing indecency prohibitions and safe harbor provisions. . . . Courts must be especially vigilant to ensure that a 'multi-layered' approach to broadcast regulation does not result.").

This reasoning is as distorted as signal bleed itself. It attests to the fact that First Amendment doctrine lacks an authoritative model of parental initiative. The Supreme Court has recognized that parents have the "primary responsibility for children's well-being [and] are entitled to the support of laws designed to aid discharge of that responsibility." 47 But the Court has never clearly stated where governmental "support" should end and parental "responsibility" should begin. A number of models have taken shape despite the Court's silence. In a somewhat notorious passage in its brief for Denver Area, the Government provided a strong form of one model, which rejected the viability of subscriber-initiated filtering technology because of the condition of "absence, distraction, indifference, inertia, or insufficient information" that besets "innumerable parents" in America. 48 Chief Judge Harry Edwards of the D.C. Circuit is the champion of a contrasting model, which denies that "parents are unavailable and inept at the task of parenting" 49 and seeks to protect parental choice from encroachment by censors acting in its name. 50 But the problem is not one of modeling parental responsibility. The problem is the persistence of a "mult i-layered" compelling-interest framework in which the old and the new uneasily coexist. Indecency jurisprudence has long held that the government has an "independent" interest in protecting American youth from indecency. 51 As Chief Judge Edwards has argued, this independent interest tends to override the government's interest in facilitating or "support[ing] parental supervision of children." 52 Playboy demonstrates one way in which this can occur. When, as with section 504, parents fail to take advantage of indecency controls, the independent interest assumes misinformed or even negligent parents, for to do otherwise would cut against the authority of its own claims concerning harm. Like Justice Thomas's peculiar, broadcast-era version of parental facilitation in Denver Area, 53 the independent interest's "default" is censorship. It operates according to the government censor's vision of an identity between governmental and parental interests. At its core, it assumes For decades, the independent interest has occupied a seemingly unassailable position in indecency jurisprudence. With the rise of parentinitiated filtering technology, however, this position may well find itself under siege. As filtering technology improves and its capabilities become widely publicized, the probability that parents suffer from "insufficient information" decreases, and the degree of parental initiative necessary to control indecency declines. With a low threshold for parent-initiated filtering, the argument that the government should act on behalf of inactive parents who are too "distracted" or "inert" to cross that threshold loses much of its force. It yields to the probability that inactive parents have made a passive judgment that the controls available to them are simply unnecessary. In this sense, by devolving competence upon parents, parent-initiated filtering technology creates the conditions for an informal referendum on indecency control, some of whose results may refute the identity of governmental and parental interests.

In Playboy, the district court sought to create the conditions for just such a referendum. The court's strategy was straightforward: "With adequate notice of the issue of signal bleed, parents can decide for themselves whether it is a problem. Thus to any parent for whom signal bleed is a concern, § 504, along with 'adequate notice,' is an effective solution." 54 In essence, this is a traditional "more speech" remedy. 55 Comparable in effect to the Denver Area majority's notion of "informational requirements," 56 "adequate notice" redefines parental initiative as a matter of information, not action. Under its terms, if parents are informed, then they are sufficiently "initiated" to preclude government intervention on their behalf. This model of parental initiation represents a shift away from the independent interest, which demands that parents act (or else the government will act for them), and toward the facilitation interest, which demands simply that parents know. The result is that notice is no longer judged adequate according to how many parents act on it. Rather, notice is judged adequate according to the extent to which it enhances a parent's authority and, perhaps more importantly, legitimates a parent's decision not to act in the way that the government would.

-Barton Beebe 54. Playboy III, 30 F. Supp. 2d at 719. 55. See Whitney v. California, 274 U.S. 357, 375, 377 (1927) (Brandeis, J., concurring) ("[T]he fitting remedy for evil counsels is good ones . . . . If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence."), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969).