High Court to Rule on Content of Cable TV Sex Shows : Judiciary: At issue is whether Congress violated the First Amendment in curbing programming. Case tests limits of what is explicit but not obscene.

The Supreme Court announced Monday that it will rule on whether Congress violated the First Amendment when it restricted sexually explicit programming on some cable television channels.

The case, to be heard in February, is the latest to test the limits of TV programming that is sexually explicit, but not “obscene” under the definition set forth by the Supreme Court in 1973.

For example, a TV program on the work of photographer Robert Mapplethorpe, who stirred controversy with his depictions of nude gay men, might include scenes that offend some viewers, but it also might be legal and not obscene because of the program’s cultural and artistic merit.

In the past, the court has said that the First Amendment shields programming that is sexually explicit but not obscene. But in 1992, Congress gave cable operators new authority to bar sexually explicit programming on alternative “leased access” channels.

In a separate case, the court also said it would rule on whether an older worker who is replaced by a 40-year-old can sue over age discrimination.

James O’Connor, a 56-year-old sales manager from North Carolina, looked to have a strong claim of age discrimination when he was fired two weeks after his supervisor told him, “O’Connor, you are too damn old for this kind of work.”

A federal appeals court threw out his claim, however, because he was replaced by someone age 40. The court reasoned that since the Age Discrimination in Employment Act of 1967 covers all workers who are age 40 or over, the act is not violated unless an older worker is replaced by someone under 40.

Lawyers for O’Connor say that interpretation creates a giant loophole in the law. The justices agreed to hear his appeal in O’Connor vs. Consolidated Coin Caterers Corp., 95-354.

The cable TV case focuses on so-called leased access channels.

In 1984, Congress required cable operators to set aside several channels for alternative programming by independent producers who usually lease the air time. Then, the law said free speech would prevail on these channels and the cable operators would have no authority over or responsibility for what appeared.

In 1992, however, members of Congress heard reports that some of these channels were featuring pornography. In New York City, the “Midnight Blue” channel became notorious for its sexually oriented shows.

In response, Congress gave cable operators the authority to bar sexually explicit programs on these alternative channels. At minimum, it demanded that cable operators give viewers the right to block such programming from their TV sets.

But these rules, which have yet to take effect, were challenged as unconstitutional by alternative programmers. They say that because the law is so hazy, they would have to drop shows on topics such as AIDS, women’s health and Mapplethorpe--or risk being thrown off cable TV entirely.

Among the programmers challenging the rules is the 90s Channel based in Boulder, Colo. John Schwartz, president of the 90s Channel, said his company provides programs on progressive, political topics, such as environmental destruction, racism and prison conditions. The programs appear on several cable systems in the Los Angeles area, he said.

“We also do programs on art censorship, gay rights, prostitution or AIDS that could run afoul of some of these provisions,” he said. “We would have to engage in self-censorship.”

But the U.S. court of appeals here, on a 6-4 vote, upheld the new rules on sexually explicit programs. It reasoned that the law did not absolutely bar such shows, but simply gave cable operators a choice to ban them.

Lawyers for the Clinton Administration urged the high court to uphold that decision, but the justices agreed to hear the appeals filed on behalf of several alternative programmers and the American Civil Liberties Union.

A ruling in Denver Area Educational Telecommunications Consortium vs. FCC, 95-124, can be expected by June.