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The First Amendment

    The First Amendment to the Constitution guarantees freedom of speech and press, religious freedom and freedom from government establishing a state religion. Despite the Speech Clause’s prohibition on government imposing speech restrictions, it’s clear that government must be able to restrict speech in some ways. As legal doctrine has evolved, a key part of the Speech Clause has become the rule that government ordinarily cannot restrict speech because it disagrees with the content of that speech.

    UNITED STATES v. PLAYBOY ENTERTAINMENT GROUP, INC.

    120 S.Ct.1878 (2000)

    Justice KENNEDY delivered the opinion of the Court.

    This case presents a challenge to § 505 of the Telecommunications Act of 1996. Section 505 requires cable television operators who provide channels “primarily dedicated to sexually-oriented programming” either to “fully scramble or otherwise fully block” those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as the time between 10 p.m. and 6 a.m. Even before enactment of the statute, signal scrambling was already in use. Cable operators used scrambling in the regular course of business, so that only paying customers had access to certain programs. Scrambling could be imprecise, however; and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as “signal bleed.” The purpose of § 505 is to shield children from hearing or seeing images resulting from signal bleed.

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