The entertainment law in the united states is an area that encompasses aspects of the entertainment industry dealing with television, motion pictures, music, theater and publishing . These sections of the industry have far-reaching involvements in the business and economic sector since they deal with almost every law. Sherri (2012) notes that these law considerations are in copyright, trade secrets, trademarks, publicity, right to privacy, corporate law, tort, tax, security, international and constitutional law among others .
One of the most interesting aspects of the entertainment law is on the issue of publicity because the content which is produced in the industry is intended for public consumption. There have been many controversial cases in the entertainment industry due to the notion of what should be made public depending on the age of viewers, time of viewing and the content to be viewed.
The case of United States v. Playboy Entertainment Group (2000) has been one of the most controversial court cases in the united states in the wake of the new millennium. The case was adjudicated in the Supreme Court of the United States, where the court struck out a long-standing entertainment law which is known as the Section 505 which espoused the Telecommunication Act of 1996. This law had required the operators of cable televisions to block or scramble channels which had content considered to be sexually oriented between 6 am and 10 pm.
Even before the Section 505, cable TV operators were required to have a limitation of access to programs to the paying customers. In an attempt to understand the decision of this case, several cases where referenced and they include the Greater New Orleans Broadcasting Assn., Inc. v. United States (1999), Reno v. American Civil Liberties Union (1997), and Ward v. Rock Against Racism (1989).
The case was filed by the united states in an attempt to protect children from being exposed to signal bleeding. Due to the complaints of the society, the united states congress had enacted the Telecommunication Act of 1996, Section 505. However, during the passing of the enactment, there was no congressional hearing which was held regarding the matter. After its enactment, the Play Boy Entertainment Group launched a challenge in a District Court to challenge the constitutionality of Section 505. In this case, the entertainment group claimed that Section 505 was violation of the First Amendment. It was ruled that Section 505 had restrictions as per the contents of the speech. The court observed that the content-based restriction was up to strict scrutiny. The government in an attempt to satisfy this strict scrutiny, it had to satisfy that Section 505 was tailored for the interest of the government.
To satisfy the scrutiny analysis, the government had given three interests which include
To protect the children from sexually explicit content
To support parents to raise their children in the way they deem fit
To ensure the privacy of individuals at home.
The District court then adjudicated that the matter of interest which the government had offered regarding Section 505 was far more compelling. However, the court observed that Section 505 had contradicted the First Amendment. This is in the manner that Section 504 had offered an alternative and that the government can use the Section 505 to further its interests. The court concluded that the government could pursue a less restrictive alternative to further its interest on how to handle the signal bleeding. A cable operator in Section 504 was required to block or scramble channels which a viewer or buyer did not want to receive, an aspect which the court had observed as to be a less restrictive alternative than the one which Section 505 espoused. In this case, the court had decided that Section 504 was a lesser restrictive alternative than what was being advocated for in Section 505. This is primarily because a person would have the right to choose between the programs they would require subscribing to and those which they would not have on their list of channels.
The united states challenged the decision to the Supreme court to have the judgment be reversed. The Supreme Court affirmed the decision of the District court a ruling which was written by Justice Anthony M. Kennedy. In its ruling, the court observed that Section 505 had singled out some programmers and also specific programs.
In this case, Section 505 was seen as being a content-based restriction. The court agreed with the government on its compelling interests and observed that it violated the First Amendment. This is being because the government in its enactment of Section 505 had failed to prove that the section was to prevent the children from either hearing or seeing resulting from signal bleed. It is in this case that the court had ruled that Section 505 had violated the First Amendment’s clause of free speech. However much the government had the interest of the parents and rearing of children in their compelling interests, they were overstepping in their mandate in Section 505. A parent who wanted his or her children to raise in a fit manner would keep off issues which would be compromising to the children. This is by using the Section 504 and requesting the cable operator to block some specific channels for the sake of their children.
I concur with the ruling of both courts since the government had failed to provide a reasonable doubt that it did not violate the First Amendment. Section 505 was enacted to cater for the signal bleed issue in the united states, but it attempted to override some of the fundamental rights in the First Amendment. Freedom of speech is an inherent right which no other law can overthrow unless it is done by changing the constitution. This is in the case of Greater New Orleans Broadcasting Assn., Inc. v. United States (1999), where if the government had the intention of curtailing the freedom of speech, it had to provide proof beyond reasonable doubt that it will bear the constitutionality burden of its actions. This is the reason the supreme court ruled that Section 505 had failed to prove if it was the hearing or seeing of content which was curtailed in its enactment.
There is a sense in which the signal bleed issue had caused imperfection in the drafting of section 505. In that time, the use of digital technology was not in wide use and therefore would cause imperfect scrambling. The argument of the government was in the idea that viewers who were not subscribers of the Play Boy channels would be still exposed to the explicit content. In this case, the viewer can come across discernable sounds or scenes which are sexually explicit. However, Reno v. American Civil Liberties Union (1997) where the court restricted the dissemination of large content which was for adult viewers. In this case, free speech burden was to be unacceptable if there were less restrictive alternatives would be as effective in achieving a legitimate process. In this case, the court agreed that the government should seek less restrictive alternatives in addressing the issue of protecting minors.
Since Section 505 was annulled due to its violation of freedom of speech, Ward v. Rock Against Racism (1989) was in such a way that it recognized freedom of speech should be concerned on the content which has an impact to the listeners. Therefore, the enactment seemed concerned with content from any other channels or if signal bleed occurs in any otherchannel. Therefore, the enactment had failed in its attempt to single out Play Boy channels as the sole perpetrator of signal bleed, which would look like a ploy to further government interest.
sources
Greater New Orleans Broadcasting Assn., Inc. v. the United States, 527 U. S. 173, 183(1999). [2017].
Reno v. American Civil Liberties Union, 521 U. S. 844, 857 (1997) [2017].
Sherri, B. (2012). Burr's Entertainment Law in a Nutshell. 3rd ed. West Academic, p.440.
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) [2017].
Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) [2017].
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