For over a decade, Time Warner Cable subscribers in Manhattanand their childrenhave been able to tune in hardcore pornography eight hours a night on Channel 35. The porn channel is the perverse consequence of a 1984 federal law requiring cable TV operators to set aside a percentage of their channels for "public access" programming, open to anyone with a video camera and something to say. What if you don't want your kids to watch phone sex ads with full frontal video or Screw publisher Al Goldstein's show, Midnight Blue? The best you can do is program your cable box to lock out the channela technical fix that many adolescents are at least as competent to defeat as their parents are to execute.
In 1992 Congress passed another law, designed to protect children from the lewd programming that was popping up on public access channels in New York and a few other cities. Cable operators now either had to ban indecent programs outright or scramble the signal of any such shows they chose to air. This September Time Warner announced it would comply with the law by scrambling the porn channel starting October 1, unless a subscriber returned a card certifying that he was over 18 and wished to receive the programs.
Uncompromising as always, the ACLU filed a lawsuit on behalf of three of Channel 35's producersGoldstein, stripper Robin Byrd, and Lou Maletta of the Gay Cable Networkaccusing Time Warner of censorship. Federal District Judge Leonard Sandthe same jurist who in 1990 ruled that subway begging was a protected form of political speechissued a preliminary injunction blocking the scrambling policy. Time Warner plans to appeal.
Sand's ruling is yet another reductio ad absurdum of First Amendment absolutism. The argument goes something like this. When Congress established its public access requirements, it created the equivalent of a "public forum," like a town square where citizens make speeches. Having created such a forum, Congress is constitutionally powerless to regulate the content of expression thereinby, say, setting different rules for "indecent" programs. And so, under Judge Sand's in-your-face Constitution, freedom of speech requires Time Warner to pipe pornography into your home unless you take the initiative to stop it.
This ruling flies in the face of established First Amendment law. No one seriously argues that free speech protects live sex shows in the town square, and the Supreme Court has long allowed local governments broad authority to use zoning and other laws to regulate sexually explicit entertainment in private establishments.
Oddly, the ACLU's central argument against the scrambling policy is that it is offensive to some Manhattanites' sensibilitiesthat requiring viewers to sign up for sexually explicit shows might "stigmatize" them. In freewheeling Manhattan this argument seems especially tendentious. But suppose the policy does cause some viewers shame over their choice in programming: that's a small price to pay to protect children from programming that is truly shameful.