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Court Rebuffs Bush Effort to Ban `Indecent' Broadcasting

By Ruth Marcus
The Washington Post

The Supreme Court refused yesterday to allow the government to ban "indecent" radio and television broadcasts, letting stand an appeals court ruling that such a blanket prohibition violates freedom of speech.

The court, with two justices dissenting, rebuffed a Bush administration request to reinstate the round-the-clock ban on indecent broadcasts, an issue the administration said is "of concern to virtually every American household."

The administration said the prohibition, required under legislation sponsored in 1988 by Sen. Jesse Helms, (R-N.C.), is necessary to shield children from exposure to such material and to protect the privacy of unsuspecting adult listeners. Broadcasters have said an absolute ban on indecent material would deter innovative news and dramatic programming by stations worried about running afoul of the vaguely worded ban.

The issue now returns to the Federal Commmunications Commission to decide what hours to allow the broadcast of "indecent" material, programming that is not legally obscene but that contains "patently offensive" descriptions of "sexual or excretory activities or organs." As the case has gone through the courts, the FCC has allowed the broadcast of such material between 8 p.m and 6 a.m.

The court's refusal to hear the case, Federal Commmunications Commission v. Action for Children's Television, was surprising, since it involved an appeals court decision finding an act of Congress unconstitutional.

Justices Byron R. White and Sandra Day O'Connor said they would have heard arguments in the case. Justice Clarence Thomas, who served on the appeals court panel that voted unanimously to strike down the ban, did not participate in Monday's action. The votes of four justices are required for the court to consider a case.

In other action yesterday, the court:

* Agreed to decide whether forcing convicted sexual offenders to attend therapy programs that require them to admit their guilt violates their constitutional right against self-incrimination.

The case, Montana v. Imlay, concerns a Montana man, Donald Imlay, convicted of molesting a 7-year-old girl and placed on probation on condition that he enroll in a sexual-therapy program. Imlay's probation was revoked and he was ordered to serve the five-year prison term when his therapist testified that Imlay could not continue with treatment because of his refusal to accept responsibility for his actions.

The Montana Supreme Court ruled that forcing Imlay to admit guilt would violate his constitutional privilege against self-incrimination. In a brief urging the court to hear the case, 18 other states said the Montana ruling threatened states' abilities to use sex-therapy programs and could "jeopardize court-ordered drug and alcohol abuse programs."

* Said it will hear the government's claim that it is entitled to seize a house purchased with proceeds from drug crimes, even if the owner of the house did not realize that tainted money was involved.

The case, United States of America v. A Parcel of Land, involves an accused drug dealer who gave the woman he lived with $216,000 to buy a house. Federal prosecutors sought to seize the house as proceeds from drug trafficking but the owner claimed it was not subject to forfeiture because she was an "innocent owner," unaware that the money came from criminal activity.

The federal appeals court in Philadelphia agreed that the government could not seize the house.

The government, asking the court to hear the case, said the appeals court's "interpretation would allow drug dealers to distribute their wealth to minor children, other unknowing family members, associates and others with whom they seek to curry favor."

* Refused to kill a lawsuit against New Jersey officials stemming from their efforts to force Princeton University's all-male eating clubs to admit women members.

The Ivy Club, which inducted its first female members in 1990, is suing state officials in federal court, claiming that they violated the club's freedom-of-association and privacy rights.

Yesterday, the justices let stand a ruling by the federal appeals court in Philadelphia that the lawsuit, which another formerly all-male club, Tiger Inn, has since joined, could proceed. The case is Del Tufo v. Ivy Club.