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Court Strikes Down Utah Law Banning ‘Indecent’ Programs On Cable TV

March 23, 1987

WASHINGTON (AP) _ The Supreme Court on Monday tied the hands of state officials seeking to ban sexually explicit material and nudity from cable television.

By a 7-2 vote, the court struck down a Utah law that prohibited ″indecent″ programs on cable broadcasts except during the hours of midnight to 7 a.m.

Utah officials, conceding their drive against sexually explicit material has been thwarted, said their only hope may be a change some day in the composition of the high court.

In other action, the court:

-Rejected an appeal by major league baseball players seeking a legal right to millions of dollars in revenue from televised games. The court let stand a ruling that major league baseball’s 26 team owners have a copyright on the telecasts.

-Agreed to hear a Reagan administration appeal aimed at making it easier for the government to deport illegal aliens. The court said it will review a decision ordering further administrative hearings for a California man trying to avoid return to his native Ghana.

-Ruled that federal judges may suspend extra prison terms a 1984 federal law requires for people who commit crimes while awaiting trial on a previous charge.

-Cleared the way for prosecution in California on child-stealing charges of a fundamentalist Christian woman who said her son should not be living with the boy’s homosexual father.

-Let stand a ruling from Pennsylvania that states may place strict controls on the sales and marketing practices of motion picture distributors.

-Left intact an affirmative action plan for the promotion of blacks to lieutenant in the Cincinnati Fire Department.

In the cable TV case, the court issued a one-sentence decision upholding a federal appeals court ruling. Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor voted to hear arguments in the case, but four votes are needed to grant such review.

Utah Attorney General David Wilkinson said, ″I would think most legislatures are going to want to wait and see what changes take place on the court in the next two or three years before they do anything further.″

State Sen. Paul Rogers of Utah, sponsor of the law struck down Monday, said, ″The Supreme Court has spoken. The states have been given their signals. I don’t see myself or the legislature being involved in an overture.″

Bryan McDougal, a lawyer for the cable companies that challenged the law, said, ″I think it (Monday’s ruling) was a monumental decision for cable operators and subscribers.″

Ten states joined Utah in urging the Supreme Court to permit regulation of indecent material on cable TV. They are Arizona, Kansas, Mississippi, Missouri, New Hampshire, New Mexico, Pennsylvania, South Carolina, Washington and West Virginia.

″The transmission of sexually explicit programs by cable television into homes where cable television is desired but sexually explicit programming is not has become in recent years a matter of grave concern to many states,″ they said.

The Utah Legislature passed the Cable Decency Act in 1983, making it a public nuisance for cable TV to show indecent material. The law carried fines of up to $10,000 for repeat offenders.

The statute defined indecent material to include ″the visual or verbal depiction or description of human sexual or excretory organs or functions ... exposure of genitals, pubic area, buttocks, or the showing of any portion of the female breast below the top of the nipple.″

The law banned such material if ″the average person applying contemporary community standards for cable television ... would find (it) is presented in a patently offensive way.″

The Utah attorney general’s office, in setting guidelines for the law, imposed the ban for all hours except midnight to 7 a.m.

U.S. District Judge Aldon J. Anderson declared the law unconstitutional in 1985 after cable companies sued. The 10th U.S. Circuit Court of Appeals upheld the ruling last September.

Anderson said the Utah act seeks to ban more than obscenity and violates the Constitution because it is too broad.

″The scope of the language is so uncertain as to chill legitimate expression in a way that the (Constitution’s) overbreadth doctrine forbids,″ he said.

The Supreme Court ruled in 1978 that the Federal Communications Commision may restrict the broadcast of indecent language over the airwaves.

That ruling, in a case involving the use of seven ″dirty words″ by comedian George Carlin, gave the FCC power to punish radio stations broadcasting his monologue at certain times of day.

Anderson said there are many distinctions between Utah’s law and the FCC action.

Cable TV viewers, unlike radio listeners, invite the programming into their homes by being paid subcribers, Anderson said.

Also, he said, a limited number of radio frequencies makes that medium subject to greater regulation. Cable TV is not limited to a finite number of channels the way over-the-air broadcasting is, he said.

Anderson also rejected arguments by Utah officials that the state law is aimed at protecting children.

″The act itself does not mention children anywhere,″ he said. ″It does not provide any systematic procedure for protecting children.″

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