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Burden of Proof

Supreme Court: Laws on Sex-Oriented TV Too Restrictive; Ruling on Liability in Pre-Airbag Cars

Aired May 22, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The Playboy Channel and other adult television programming will not have to fully block their signals. Plus: Automakers are not liable for injuries which airbags could have avoided in cars built before the safety device was required. These and other cases were announced today by the highest court in the land, the United States Supreme Court.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

Today in Washington, the United States Supreme Court ruled that Congress violated free speech rights when it passed laws designed to protect children from sex-oriented television.

ROGER COSSACK, CO-HOST: The case involves the Playboy Channel, which provides adult programming on cable and satellite systems. In a 5-4 ruling, the Justices said that Congress went too far when it required channels like Playboy to restrict its programming to overnight hours if they don't fully scramble their signal to non- subscribers.

VAN SUSTEREN: The Playboy Channel and other adult television channels are marketed like premium movie channels, requiring additional fees. In its ruling, the Supreme Court upheld a lower court ruling that less restrictive measures are available to address the issue.

COSSACK: Joining us today from Chicago is Christie Hefner, chairman and CEO of Playboy Enterprises.

VAN SUSTEREN: And here in Washington, Kelly Williams (ph), constitutional law professor Michael Tigar and constitutional law scholar Bruce Fein. In our back row, Noble Pendergraf (ph), Greg Leatherberry (ph) and Forrest Allen (ph).

COSSACK: And also joining us from the U.S. Supreme Court is CNN Senior -- CNN Supreme Court correspondent Charles Bierbauer.

Well, Charles, the Supreme Court decided today that Playboy doesn't have to fully jam their signal. What does that all mean? CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Well, it's 1st Amendment free speech, and one of the principles of the Constitution. And the Court, though it split 5 to 4, came out with a ruling that said it is very difficult and always going to be very difficult for the government to try to restrict speech based on its content.

This is not obscene material. It may be objectionable to many adults, Justice Kennedy, in delivering the opinion, said. But nonetheless, there are adults who may want to see it, and Playboy and other operations have a right to broadcast it. In fact, Justice Kennedy, in his opinion, said, "We are expected to protect our own sensibilities simply by averting our eyes."

Now, this Communications Decency Act, which preceded this, the Telecommunications Act, pretty much aimed at keeping this kind of material away from children, but the Court found that there is an easy alternative or relatively easy alternative within the cable world, where this kind of material is presented, and that would be simply by blocking out those channels.

You know, you can call your cable operator and say, "I don't want this channel," and the cable operator's responsible to block that out or to provide you with the means at no cost, although cable operators indicate very few people actually ask for this. But that, the Court said, would be the least restrictive means, and it would not intrude on the 1st Amendment rights of Playboy and others.


VAN SUSTEREN: All right, let's go to Chicago to the CEO of Playboy, Christie Hefner.

Christie, what's your reaction to today's decision?

CHRISTIE HEFNER, CHAIRMAN AND CEO, PLAYBOY ENTERPRISES: Well, we're very pleased to see what we think is an important principle upheld. As the commentator was saying, there's a very high, and intentionally so, standard that the government must meet when it restricts constitutionally protected speech. And in this case, that was not met because there is a technologically easy solution for parents to stop channels that they don't want to have come into their home from coming into their homes.

And I think, particularly, as we live in a world where, particularly on the Internet, but also on television, so much is available that can't be stopped, the key is to empower parents to control what they want to come into their home, rather than to try and stop the signals that are disseminated.

VAN SUSTEREN: Christie, wasn't one of the problems, though, that it can't be completely, perfectly scrambled, so that even non- subscribers, sometimes their children could have access to at least a portion of your channel?

HEFNER: Well, that's what section 504 was designed to address, which was the section that the majority of the Court indicated was the appropriate solution to the problem. So you're right that in old analog systems, there can sometimes be a problem of signal bleed, but the 504 provision that allows people to call and get that blocked solves that problem completely.

COSSACK: Michael Tigar, they say that politics makes strange bedfellows, but I think sometimes Supreme Court decisions do also. In this case, you had -- you had Supreme Court Justice Breyer voting for the dissent, and you had Supreme Court Justice Clarence Thomas voting in favor of this opinion in a 5-4 opinion. Usually, you'd have the reverse.

MICHAEL TIGAR, CONSTITUTIONAL LAW PROFESSOR: Well, actually, I don't think so, Roger. Justice Breyer comes onto the Court as a fan of federal regulation of all sorts of industries, as the other case we're going to talk about today indicates. Justice Thomas's view about the right of anybody to watch porn movies if they want to was demonstrated during his hearings.

And the author of the opinion, Justice Kennedy -- very interesting. I've spent a great deal of time with Justice Kennedy talking about things, and one of the things he stressed is that when he came on the Court, he regarded himself as a firm ally of Justice Brennan's views on free speech. And he said to me informally many times, "You know, I don't think I'm ever going to vote against the 1st Amendment. It'd be a hard thing to imagine me doing." And I know a case I argued up there, Gentile (ph) against the state bar, he certainly bore that out. And that's what today's decision does. So I think that all of these votes can, let us say, be accounted for, if one doesn't take a simplistic view.



FEIN: ... it's a little bit surprising because Justice Breyer wrote the opinion in a Denver cable case that struck down the predecessor of this law, so his jumping ship is at least a little more routine than might be expected.

The second thing that's important with regard to the case is it seemed to abandon the idea that previously had been upheld of a right of the state to worry about child rearing independent of the parent. This decision seemed to suggest as long as you're entrusting the decision to the parent, then the state has no authority, under the 1st Amendment or otherwise, to be concerned about how the morals of youth would be affected.

VAN SUSTEREN: Christie, I'm curious how your corporation sort of polices what you put on the air. There's a whole range of what can be objectionable and not objectionable, what violates the law and what doesn't. How do you do that?

HEFNER: Well, we have the benefit of over 45 years of experience in creating Playboy-style content, first in print, now in television and video and on-line. And frankly, I think the success of the company has come from its unique ability to create a category of content that is almost the Good Housekeeping Seal of Approval for content for grown-ups. As was referenced in the majority opinion, a number of the shows that Playboy produces also air on HBO, Showtime and even some of the broadcast standard cable services on a slightly edited basis.

So in an ironic way, I think Playboy carried the ball on this decision over the last five years, but really is the one example of a service that stands for a promise to the consumer that what is aired is going to be comfortable for not just men but couples, who are most of the viewers of Playboy TV.

VAN SUSTEREN: Mike, is there a...

COSSACK: Christie...

VAN SUSTEREN: ... bright-line test in terms of, you know, what can be even put on cable and not -- I mean, is there -- can you go too far?

TIGAR: Oh, I think one can go too far. The Court's decision...

VAN SUSTEREN: I mean, does the Supreme Court say that -- does the Supreme Court ever put a bright-line test, or can you?

TIGAR: No, I don't think so. Bruce and I were talking about this before. This "least restrictive alternatives" test is fact- bound. That is, the key to Justice Kennedy's decision is a finding that the lower court did not make a clear error in finding that this section 504, which permits parents to call up and block, is unduly burdensome or difficult, so it is a least -- a less restrictive alternative that makes sense.

When you get into the question of what is a less restrictive alternative that makes sense, I don't think the Court has ever come up with a line. So I think you're going to have these 5-4 decisions.

FEIN: I think that's right. I think there's -- there's two ways to answer your question. One is yes, the Court has made it clear that you can ban obscene material from cable...

VAN SUSTEREN: Where -- and how...

FEIN: ... as it can from newspapers.

VAN SUSTEREN: ... is "obscene" defined?

FEIN: Well, it's under a 1973 Miller test. It has to have a -- it has to appeal to the prurient interest. There can be no -- it has to explicitly describe an excretory function or a genital organ, and there has to be no serious redeeming social, educational or other value. Now, that's a rather permeable test, but nevertheless, it's there.

It's where you're trying to go beyond the obscene, which clearly, the Court has held is not protected by the 1st Amendment, that the Court has become very fuzzy in the cable area, groping because of the technology that makes it very difficult to simultaneously try to protect children but yet leave adults free to have access to all non- obscene material, and that is what the Congress encountered in this case, where the Court said "You're blocking out material that would be acceptable to an adult audience in order to save children's morals. That's not permissible, at least when you have a better alternative to try to make a boundary line between the two."

COSSACK: All right, let's take a break. Christie Hefner, thank you for joining us today from Chicago.

When we come back: The Supreme Court weighs in on airbag safety in cars built before the safety device was required by law. Stay with us.


Branch Davidian attorney Mike Caddell says he's spent more than $4 million worth of time and $1 million out of his own pocket preparing a wrongful death lawsuit against the federal government. The trial, stemming from the 1993 siege at Waco, is set to begin June 19.



VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video on demand. You can also interact with our show and even join our chat room.

COSSACK: Americans who drive cars built before airbags were required by law cannot recover damages from automakers if the suffer injuries which could have been avoided by the safety device. The Supreme Court by a 5-4 vote threw out a lawsuit filed by a woman injured in her 1987 Honda. The laws didn't go into effect until after the 1987 Honda was built.

Well, Charles, the Supreme Court -- another close case by the Supreme Court, and they decided this really on a preemption statute, preemption idea, didn't they?

BIERBAUER: That's exactly what this is. This is a preemption case, which says you can't file this, in particular, in this instance, in the District of Columbia or any state based on a federal law which set a sort of a phase-in period for requiring auto manufacturers to put airbags.

And what happened in this instance is a Washington, D.C., woman was severely injured driving a 1987 Honda, which was in that sort of transition period when automaker were required to only put airbags on 10 percent of their production. Her car did not have an airbag. It had seatbelts. But because the federal law did not require it, she really has no case, the Court has ruled today. And the extension of that is that neither does anyone else who might fall into a similar category, Roger.

VAN SUSTEREN: Mike, both Charles and Roger used the term "preemption." What's preemption?

TIGAR: The doctrine of preemption here says that a state cannot make a rule, or the District of Columbia cannot make a rule that conflicts with a requirement established by federal law. That's called "conflict preemption." There's another kind called "occupying the field preemption," which is not at issue here. So that's what the Court said today, that Congress, by setting this standard, prohibited the states from doing something inconsistent.

FEIN: Well, is it...

VAN SUSTEREN: But if they had the technology, even though the -- even though the automakers weren't required to have airbags at a certain date, if they had the technology and didn't use it, why doesn't that allow someone to sue in state court for the automaker simply looking the other way?

TIGAR: Well, I think this is a wrong decision. Indeed, I think it's a ridiculous decision. In the early part of this century, Louis Brandeis spoke of the states as laboratories within which basic ideas about civil liability and torts and social conditions could be worked out. And the idea that by lobbying the Congress and getting airbags phased in, auto manufacturers can thereby insulate themselves from liability, even though their best knowledge is that they can save lives by doing more than the minimum standard, I think is ridiculous.


FEIN: But I think that's -- that's a little misplaced. After all, Congress could authorize the states to adopt higher standards than what was done by the...

VAN SUSTEREN: But let me stop you right there...

FEIN: ... Department of Transportation...

VAN SUSTEREN: But let me stop you right there. My guess is that the automakers are far better lobbyists and are far better organized than the drivers of America who are driving around in cars without airbags.

FEIN: They don't have nearly the same number of votes. And remember, this was a Department of Transportation rule, promulgated and enforced and championed by the Clinton administration. And one of the reasons wasn't simply a mindless desire to lower standards to do a favor for auto manufacturers...


FEIN: ... it was said that at that time, there wasn't certainty that passive restraints might not be superior to airbags, that in order to drive down the cost of...

VAN SUSTEREN: Well, why not...

FEIN: ... these passive restraints...

VAN SUSTEREN: Why not...

FEIN: ... a uniform rule...

VAN SUSTEREN: Why not let the jury decide, though?

FEIN: ... a uniform rule was preferable.

VAN SUSTEREN: Why not? You want to get into this, Mike?

TIGAR: Well, that's it. Let's let the jury decide. That's what a negligence case is about, to find out what really was known. The interesting thing is that today's 5-4 decision reflects a social policy choice by the Court. There is a provision in the statute that the Court held did not support preemption, the Court has said had to really reach for it to get these five votes to have preemption in this case. So this is not an instance in which you can say with certainty that the Congress intended to shield manufacturers in this way.

VAN SUSTEREN: Charles -- go ahead, Roger.

COSSACK: I was just going to say, Charles, the Supreme Court also decided another case today about airline luggage. You know, no more passengers not recovering, right?

BIERBAUER: Well, and just as the summer travel season is about to dawn on us and we can all worry about losing our luggage, what the Court has done is allow a lower court ruling to stand against American Airlines. This is a case which was not heard by the Supreme Court itself, but it held American Airlines responsible for having lost five pieces of luggage for a large family traveling to South America to go to a wedding, and the bags didn't show up. And the airline said it was only responsible for the $9.07 a pound which is written into the Warsaw Convention, multiplied times whatever number of bags there might have been, times the number of pounds -- in other words, not a whole lot of money. This family sued for $15,000 -- probably could have sued for more -- because what the airline failed to do was to note how many pounds the luggage weighed. So there is no ceiling that they could have imposed because there was no weight provided there.

And basically, what the Court is allowing to stand here is a restriction that says the airlines have to be a little bit more dutiful in taking care of our luggage and noting just what they're dealing with.

VAN SUSTEREN: We're going to take a break. Up next: the changing faces of justice. Will this year's presidential election make a legal impact on the highest court in the land?

Stay with us.


Q: Which lawyer from the O.J. Simpson case has been hired by the former groom-to-be?

A: Christopher Darden



VAN SUSTEREN: In less than six months, Americans will elect a new president. That election could make an impact on the United States Supreme Court, as several justices could be approaching retirement.

Mike, how important is the next presidential election as it relates to the Supreme Court? We just went over three 5-to-4 decisions.

TIGAR: Well, I think it's very important. I think it's vital. Although Justice Stevens will be on the Court, I think, as long as he's able, he is 80 years old. There are rumors that Justice Scalia has said that if a Democrat is elected, he would retire from the Court. Whether that's true or not, Justices Rehnquist -- Justice -- Chief Justice Rehnquist's health has always been -- has recently been a matter of debate and concern.

So I would predict that a new president will have at least two appointments to the Supreme Court during his first term in office.

COSSACK: Bruce, can you really -- if you're the president of the United States, and you're making an appointment, can you really tell what you're getting, or is it -- is it pretty much that you hope for the best?

FEIN: Well, you know -- you know, the answer is both yes and no, Roger. Certainly, you can have some general ideological screening that can reduce the chance of missing how you'd like them to vote, but the history of the Court is replete with instances where Justices voted the opposite way that their presidential benefactor would have liked. I supposed the clearest examples is Dwight Eisenhower appointing Earl Warren and William Brennan.

But even in other cases, more recent vintage, we have David Souter, who was appointed by President Bush, and then Clarence Thomas appointed by President Bush, and they vote opposite in virtually every important case. So I think there's an exaggeration of believing you can appoint someone there who simply will ape the president's desires.

Moreover, you also have to be very alert to what the composition of the Senate will be. If the Senate shifts to Democratic hands and Bush comes in as president, he will not be able to appoint someone with as stark a hue as a Bob Bork or, say, on the circuit court level, a Dick Posner or a Frank Easterbrook (ph). On the other hand, if there's a Republican-controlled Senate and a Republican-controlled White House, then you're going to get a far more, let's say, predictable justice, in my view. And the same would hold true if Gore wins and he ends up with a Democratic Senate. But the Senate role cannot be understated.

VAN SUSTEREN: Mike, looking at the Court now, when these issues come before the Court, can you pretty much predict who's going to go which way? I mean, is it so etched in stone on their viewpoints?

TIGAR: Not with respect to the issues we talked about earlier, such as these 1st Amendment issues or preemption. But with respect, for example, to death penalty issues, yes; 11th Amendment issues, yes; states' rights issues, as in Alden (ph) against Maine, yes. This conservative majority of five is predictably embarked upon the dismantling of a great deal of progressive legislation on 11th Amendment and state sovereignty grounds, and that's predictable.

VAN SUSTEREN: You know, when Bruce talks about the election, if you have a Republican-controlled Senate and a Republican in the White House, or a Democratic-controlled Senate and Democrat in the White House, it almost is sort of a terrifying picture in terms of, like, the fix being in, rather than looking for the most qualified. It almost looks like it's such an imposition of a political agenda in the Court. Do you agree or disagree?

TIGAR: Well, certainly, the stalemate between the Republican- controlled Senate and the White House on many judicial appointments would tell you that that's true. If, however, Al Gore is elected, even with a Republican Senate, there are going to be four years' worth of appointments at all levels of the judiciary to make, and I think that that would provoke the Republicans in the Senate to sit down and do something.

Bruce's valid point -- and we disagree about a lot -- is that that label -- Republican, Democrat -- doesn't tell you everything. There's a lot of room...

VAN SUSTEREN: Is it a good sign, though...

TIGAR: ... for compromise.

VAN SUSTEREN: ... the fact that you can predict a lot -- I mean, we have the surprises. We have the Souter. We have Earl Warren. We have a couple surprises. But for the most part, I mean, there are a lot of -- you can pretty much predict what they're going to do.

TIGAR: Well, but you see, when you say Justice Souter -- we're talking about a 5-4 Court in a lot of these decisions. One person like David Souter, who has carved out for himself a position that's, I think, almost unique in the history of the Court, a scholarly, thoughtful man who's been a surprise to many, including the president who appointed him, shows you that just one appointment can make a big difference.

COSSACK: All right, that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE": The NRA says the White House engineered last week's Million Mom March. Join me on the gun control debate today at 3:00 p.m. Eastern, noon Pacific.

VAN SUSTEREN: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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