OCTOBER TERM, 1999
Syllabus
UNITED STATES ET AL.
v. PLAYBOY ENTERTAINMENT GROUP,
INC.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE
No. 98-1682. Argued November 30, 1999-Decided May 22, 2000
Section 505 of the Telecommunications Act of 1996 requires cable
television operators providing channels "primarily dedicated to
sexuallyoriented 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 between 10 p.m. and 6 a.m. Even
before § 505's enactment, cable operators used signal scrambling to
limit access to certain programs to paying customers. 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. To comply with § 505, the majority of cable operators
adopted the "time channeling" approach, so that, for two-thirds of
the day, no viewers in their service areas could receive the
programming in question. Appellee Playboy Entertainment Group,
Inc., filed this suit challenging § 505's constitutionality. A
three-judge District Court concluded that § 505's content-based
restriction on speech violates the First Amendment because the
Government might further its interests in less restrictive ways.
One plausible, less restrictive alternative could be found in § 504
of the Act, which requires a cable operator, "[u]pon request by a
cable service subscriber ... without charge, [to] fully scramble or
otherwise fully block" any channel the subscriber does not wish to
receive. As long as subscribers knew about this opportunity, the
court reasoned, § 504 would provide as much protection against
unwanted programming as would § 505.
Held: Because the Government failed to prove § 505 is the
least restrictive means for addressing a real problem, the District
Court did not err in holding the statute violative of the First
Amendment. Pp.811-827.
(a) Two points should be understood: (1) Many adults would find
the material at issue highly offensive, and considering that the
material comes unwanted into homes where children might see or hear
it against parental wishes or consent, there are legitimate reasons
for regulating it; and (2) Playboy's programming has First
Amendment protection.
804
Syllabus
Section 505 is a content-based regulation. It also singles out
particular programmers for regulation. It is of no moment that the
statute does not impose a complete prohibition. Since § 505 is
content based, it can stand only if it satisfies strict scrutiny.
E. g., Sable Communications of Cal., Inc. v.
FCC,
492 U. S. 115,
126. It must be narrowly tailored to promote a compelling
Government interest, and if a less restrictive alternative would
serve the Government's purpose, the legislature must use that
alternative. Cable television, like broadcast media, presents
unique problems, but even where speech is indecent and enters the
home, the objective of shielding children does not suffice to
support a blanket ban if the protection can be obtained by a less
restrictive alternative. There is, moreover, a key difference
between cable television and the broadcasting media: Cable systems
have the capacity to block unwanted channels on a
household-by-household basis. Targeted blocking is less restrictive
than banning, and the Government cannot ban speech if targeted
blocking is a feasible and effective means of furthering its
compelling interests. Pp. 811-815.
(b) No one disputes that § 504 is narrowly tailored to the
Government's goal of supporting parents who want sexually explicit
channels blocked. The question here is whether § 504 can be
effective. Despite empirical evidence that § 504 generated few
requests for household-byhousehold blocking during a period when it
was the sole federal blocking statute in effect, the District Court
correctly concluded that § 504, if publicized in an adequate
manner, could serve as an effective, less restrictive means of
reaching the Government's goals. When the Government restricts
speech, the Government bears the burden of proving the
constitutionality of its actions.
E. g., Greater New Orleans
Broadcasting Assn., Inc. v.
United States, 527 U. S. 173, 183. Of
three explanations for the lack of individual blocking requests
under § 504-(1) individual blocking might not be an effective
alternative, due to technologicalor other limitations; (2) although
an adequately advertised blocking provision might have been
effective, § 504 as written does not require sufficient notice to
make it so; and (3) the actual signal bleed problem might be far
less of a concern than the Government at first had supposed-the
Government had to show that the first was the right answer.
According to the District Court, however, the first and third
possibilities were "equally consistent" with the record before it,
and the record was not clear as to whether enough notice had been
issued to give § 504 a fighting chance. Unless the District Court's
findings are clearly erroneous, the tie goes to free expression.
With regard to signal bleed itself, the District Court's thorough
discussion exposes a central weakness in the Government's proof:
There is little hard evidence of how widespread
805
or how serious the problem is. There is no proof as to how
likely any child is to view a discernible explicit image, and no
proof of the duration of the bleed or the quality of the pictures
or sound. Under § 505, sanctionable signal bleed can include
instances as fleeting as an image appearing on a screen for just a
few seconds. The First Amendment requires a more careful assessment
and characterization of an evil in order to justify a regulation as
sweeping as this. The Government has failed to establish a
pervasive, nationwide problem justifying its nationwide daytime
speech ban. The Government also failed to prove § 504, with
adequate notice, would be ineffective. There is no evidence that a
well-promoted voluntary blocking provision would not be capable at
least of informing parents about signal bleed (if they are not yet
aware of it) and about their rights to have the bleed blocked (if
they consider it a problem and have not yet controlled it
themselves). A court should not assume a plausible, less
restrictive alternative would be ineffective; and a court should
not presume parents, given full information, will fail to act. The
Government also argues society's independent interests will be
unserved if parents fail to act on that information. Even upon the
assumption that the Government has an interest in substituting
itself for informed and empowered parents, its interest is not
sufficiently compelling to justify this widespread restriction on
speech. The regulatory alternative of a publicized § 504, which has
the real possibility of promoting more open disclosure and the
choice of an effective blocking system, would provide parents the
information needed to engage in active supervision. The Government
has not shown that this alternative would be insufficient to secure
its objective, or that any overriding harm justifies its
intervention. Although, under a voluntary blocking regime, even
with adequate notice, some children will be exposed to signal
bleed, children will also be exposed under time channeling, which
does not eliminate signal bleed around the clock. The record is
silent as to the comparative effectiveness of the two alternatives.
Pp. 816-826.
30 F. Supp. 2d 702, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J.,
post, p. 828, and THOMAS, J.,
post, p. 829, filed
concurring opinions. SCALIA, J., filed a dissenting opinion,
post, p. 831. BREYER, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and O'CONNOR and SCALIA, JJ., joined,
post, p.835.
James A. Feldman argued the cause for appellants. With
him on the briefs were
Solicitor General Waxman, Acting
806
Assistant Attorney General Schultz, Deputy Solicitor General
Kneedler, Jacob M. Lewis, Edward Himmelfarb, and Christopher
J. Wright.
Robert Corn-Revere argued the cause for appellees. With
him on the brief were
Jean S.
Moore and
Burton
Joseph.*
JUSTICE KENNEDY delivered the opinion of the Court. This case
presents a challenge to § 505 of the Telecommunications Act of
1996, Pub. L. 104-104, 110 Stat. 136,47 U. S. C. § 561 (1994 ed.,
Supp. III). 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. 47 U. S. C. §
561(a) (1994 ed., Supp. III); 47 CFR § 76.227 (1999). 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.
To comply with the statute, the majority of cable operators
adopted the second, or "time channeling," approach. The effect of
the widespread adoption of time channeling was to
*Janet M. LaRue, Paul J. McGeady, and
Bruce Taylor filed a brief for the Family Research Council
et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Booksellers Foundation for Free Expression et al. by
Michael A. Bamberger; for the Media Institute by
Laurence
H. Winer; for the National Cable Television Association by
Daniel L. Brenner and
Michael S.
Schooler; for
Sexuality Scholars, Researchers, Educators, and Therapists by
Marjorie Heins and
Joan E. Bertin; and for the Thomas
Jefferson Center for the Protection of Free Expression by
J.
Joshua Wheeler.
807
eliminate altogether the transmission of the targeted
programming outside the safe harbor period in affected cable
service areas. In other words, for two-thirds of the day no
household in those service areas could receive the programming,
whether or not the household or the viewer wanted to do so.
Appellee Playboy Entertainment Group, Inc., challenged the
statute as unnecessarily restrictive content-based legislation
violative of the First Amendment. After a trial, a three-judge
District Court concluded that a regime in which viewers could order
signal blocking on a household-byhousehold basis presented an
effective, less restrictive alternative to § 505. 30 F. Supp. 2d
702, 719 (Del. 1998). Finding no error in this conclusion, we
affirm.
I
Playboy Entertainment Group owns and prepares programs for adult
television networks, including Playboy Television and Spice.
Playboy transmits its programming to cable television operators,
who retransmit it to their subscribers, either through monthly
subscriptions to premium channels or on a so-called "pay-per-view"
basis. Cable operators transmit Playboy's signal, like other
premium channel signals, in scrambled form. The operators then
provide paying subscribers with an "addressable converter," a box
placed on the home television set. The converter permits the viewer
to see and hear the descrambled signal. It is conceded that almost
all of Playboy's programming consists of sexually explicit material
as defined by the statute.
The statute was enacted because not all scrambling technology is
perfect. Analog cable television systems may use either "RF" or
"baseband" scrambling systems, which may not prevent signal bleed,
so discernible pictures may appear from time to time on the
scrambled screen. Furthermore, the listener might hear the audio
portion of the program.
808
These imperfections are not inevitable. The problem is that at
present it appears not to be economical to convert simpler RF or
baseband scrambling systems to alternative scrambling technologies
on a systemwide scale. Digital technology may one day provide
another solution, as it presents no bleed problem at all. Indeed,
digital systems are projected to become the technology of choice,
which would eliminate the signal bleed problem. Digital technology
is not yet in widespread use, however. With imperfect scrambling,
viewers who have not paid to receive Playboy's channels may happen
across discernible images of a sexually explicit nature. How many
viewers, how discernible the scene or sound, and how often this may
occur are at issue in this case.
Section 505 was enacted to address the signal bleed phenomenon.
As noted, the statute and its implementing regulations require
cable operators either to scramble a sexually explicit channel in
full or to limit the channel's programming to the hours between 10
p.m. and 6 a.m. 47 U. S. C. § 561 (1994 ed., Supp. III); 47 CFR §
76.227 (1999). Section 505 was added by floor amendment, without
significant debate, to the Telecommunications Act of 1996 (Act), a
major legislative effort designed "to reduce regulation and
encourage 'the rapid deployment of new telecommunications
technologies.'"
Reno v.
American Civil Liberties
Union, 521 U. S.
844, 857 (1997) (quoting 110 Stat. 56). "The Act includes seven
Titles, six of which are the product of extensive committee
hearings and the subject of discussion in Reports prepared by
Committees of the Senate and the House of Representatives."
Reno, supra, at 858. Section 505 is found in Title V of the
Act, which is itself known as the Communications Decency Act of
1996
(CDA). 110 Stat. 133. Section 505 was to become
effective on March 9, 1996, 30 days after the Act was signed by the
President. Note following 47 U. S. C. § 561 (1994 ed., Supp.
III).
809
On March 7, 1996, Playboy obtained a temporary restraining order
(TRO) enjoining the enforcement of § 505. 918 F. Supp. 813 (Del.),
and brought this suit in a three-judge District Court pursuant to §
561 of the Act, 110 Stat. 142, note following 47 U. S. C. § 223
(1994 ed., Supp. III). Playboy sought a declaration that § 505
violates the Constitution and an injunction prohibiting the law's
enforcement. The District Court denied Playboy a preliminary
injunction, 945 F. Supp. 772 (Del. 1996), and we summarily
affirmed, 520 U. S. 1141 (1997). The TRO was lifted, and the
Federal Communications Commission announced it would begin
enforcing § 505 on May 18, 1997.
In re Implementation of Section
505 of the Telecommunications Act of 1996, 12 FCC Rcd. 5212,
5214 (1997).
When the statute became operative, most cable operators had "no
practical choice but to curtail [the targeted] programming during
the [regulated] sixteen hours or risk the penalties imposed ... if
any audio or video signal bleed occur[red] during [those] times."
30 F. Supp. 2d, at 711. The majority of operators-"in one survey,
69%" -complied with § 505 by time channeling the targeted
programmers.
Ibid. Since "30 to 50% of all adult programming
is viewed by households prior to 10 p.m.," the result was a
significant restriction of communication, with a corresponding
reduction in Playboy's revenues.
Ibid.
In March 1998, the District Court held a full trial and
concluded that § 505 violates the First Amendment.
Id., at
702. The District Court observed that § 505 imposed a contentbased
restriction on speech.
Id., at 714-715. It agreed that the
interests the statute advanced were compelling but concluded the
Government might further those interests in less restrictive ways.
Id., at 717-720. One plausible, less restrictive alternative
could be found in another section of the Act: § 504, which requires
a cable operator, "[u]pon request by a cable service subscriber ...
without charge, [to] fully
810
scramble or otherwise fully block" any channel the subscriber
does not wish to receive. 110 Stat. 136, 47 U. S. C. § 560 (1994
ed., Supp. III). As long as subscribers knew about this
opportunity, the court reasoned, § 504 would provide as much
protection against unwanted programming as would § 505. 30 F. Supp.
2d, at 718-720. At the same time, § 504 was content neutral and
would be less restrictive of Playboy's First Amendment rights.
Ibid.
The court described what "adequate notice" would in-
clude, suggesting
"[operators] should communicate to their subscribers the
information that certain channels broadcast sexuallyoriented
programming; that signal bleed ... may appear; that children may
view signal bleed without their parents' knowledge or permission;
that channel blocking devices ... are available free of charge ...
; and that a request for a free device ... can be made by a
telephone call to the [operator]." Id., at 719.
The means of providing this notice could include
"inserts in monthly billing statements, barker channels (preview
channels of programming coming up on PayPer-View), and on-air
advertisement on channels other than the one broadcasting the
sexually explicit programming." Ibid.
The court added that this notice could be "conveyed on a regular
basis, at reasonable intervals," and could include notice of
changes in channel alignments.
Ibid.
The District Court concluded that § 504 so supplemented would be
an effective, less restrictive alternative to § 505, and
consequently declared § 505 unconstitutional and enjoined its
enforcement.
Id., at 719-720. The court also required
Playboy to insist on these notice provisions in its contracts with
cable operators.
Ibid.
The United States filed a direct appeal in this Court pursuant
to § 561. The District Court thereafter dismissed for
811
lack of jurisdiction two post-trial motions filed by the
Government. App. to Juris. Statement 91a-92a. We noted probable
jurisdiction, 527 U. S. 1021 (1999), and now affirm.
II
Two essential points should be understood concerning the speech
at issue here. First, we shall assume that many adults themselves
would find the material highly offensive; and when we consider the
further circumstance that the material comes unwanted into homes
where children might see or hear it against parental wishes or
consent, there are legitimate reasons for regulating it. Second,
all parties bring the case to us on the premise that Playboy's
programming has First Amendment protection. As this case has been
litigated, it is not alleged to be obscene; adults have a
constitutional right to view it; the Government disclaims any
interest in preventing children from seeing or hearing it with the
consent of their parents; and Playboy has concomitant rights under
the First Amendment to transmit it. These points are
undisputed.
The speech in question is defined by its content; and the
statute which seeks to restrict it is content based. Section 505
applies only to channels primarily dedicated to "sexually explicit
adult programming or other programming that is indecent." The
statute is unconcerned with signal bleed from any other channels.
See 945 F. Supp., at 785 ("[Section 505] does not apply when signal
bleed occurs on other premium channel networks, like HBO or the
Disney Channel"). The overriding justification for the regulation
is concern for the effect of the subject matter on young viewers.
Section 505 is not" 'justified without reference to the content of
the regulated speech.'"
Ward v.
Rock Against Racism,
491 U. S. 781,
791 (1989) (quoting
Clark v.
Community for Creative Non-
Violence, 468 U.
S. 288, 293 (1984)). It "focuses
only on the content of
the speech and the direct impact that speech has on its listeners."
Boos v.
Barry, 485 U. S. 312,
812
321 (1988) (opinion of O'CONNOR, J.). This is the essence of
content-based regulation.
Not only does § 505 single out particular programming content
for regulation, it also singles out particular programmers. The
speech in question was not thought by Congress to be so harmful
that all channels were subject to restriction. Instead, the
statutory disability applies only to channels "primarily dedicated
to sexually-oriented programming." 47 U. S. C. § 561(a) (1994 ed.,
Supp. III). One sponsor of the measure even identified appellee by
name. See 141 Congo Rec. 15587 (1995) (statement of Sen. Feinstein)
(noting the statute would apply to channels "such as the Playboy
and Spice channels"). Laws designed or intended to suppress or
restrict the expression of specific speakers contradict basic First
Amendment principles. Section 505 limited Playboy's market as a
penalty for its programming choice, though other channels capable
of transmitting like material are altogether exempt.
The effect of the federal statute on the protected speech is now
apparent. It is evident that the only reasonable way for a
substantial number of cable operators to comply with the letter of
§ 505 is to time channel, which silences the protected speech for
two-thirds of the day in every home in a cable service area,
regardless of the presence or likely presence of children or of the
wishes of the viewers. According to the District Court, "30 to 50%
of all adult programming is viewed by households prior to 10 p.m.,"
when the safe-harbor period begins. 30 F. Supp. 2d, at 711. To
prohibit this much speech is a significant restriction of
communication between speakers and willing adult listeners,
communication which enjoys First Amendment protection. It is of no
moment that the statute does not impose a complete prohibition. The
distinction between laws burdening and laws banning speech is but a
matter of degree. The Government's content-based burdens must
satisfy the same rigorous scrutiny as its content-based bans.
813
Since § 505 is a content-based speech restriction, it can stand
only if it satisfies strict scrutiny.
Sable Communications of
Cal., Inc. v.
FCC, 492 U. S. 115, 126
(1989). If a statute regulates speech based on its content, it must
be narrowly tailored to promote a compelling Government interest.
Ibid. If a less restrictive alternative would serve the
Government's purpose, the legislature must use that alternative.
Reno, 521 U. S., at 874 ("[The CDA's Internet indecency
provisions'] burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted to
serve");
Sable Communications, supra, at 126 ("The
Government may ... regulate the content of constitutionally
protected speech in order to promote a compelling interest if it
chooses the least restrictive means to further the articulated
interest"). To do otherwise would be to restrict speech without an
adequate justification, a course the First Amendment does not
permit.
Our precedents teach these principles. Where the designed
benefit of a content-based speech restriction is to shield the
sensibilities of listeners, the general rule is that the right of
expression prevails, even where no less restrictive alternative
exists. We are expected to protect our own sensibilities "simply by
averting [our] eyes."
Cohen v.
California, 403 U. S. 15,21 (1971);
accord,
Erznoznik v.
Jacksonville, 422 U. S. 205, 210-211
(1975). Here, of course, we consider images transmitted to some
homes where they are not wanted and where parents often are not
present to give immediate guidance. Cable television, like
broadcast media, presents unique problems, which inform our
assessment of the interests at stake, and which may justify
restrictions that would be unacceptable in other contexts. See
Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U. S. 727, 744 (1996) (plurality opinion);
id., at 804-805 (KENNEDY, J., concurring in part, concurring
in judgment in part, and dissenting in part);
FCC v.
Pacifica Foundation, 438
814
u. S. 726 (1978). No one suggests the Government must be
indifferent to unwanted, indecent speech that comes into the home
without parental consent. The speech here, all agree, is protected
speech; and the question is what standard the Government must meet
in order to restrict it. As we consider a content-based regulation,
the answer should be clear:
The standard is strict scrutiny. This case involves speech
alone; and even where speech is indecent and enters the home, the
objective of shielding children does not suffice to support a
blanket ban if the protection can be accomplished by a less
restrictive alternative.
In
Sable Communications, for instance, the feasibility of
a technological approach to controlling minors' access to
"dial-a-porn" messages required invalidation of a complete
statutory ban on the medium. 492 U. S., at 130-131. And, while
mentioned only in passing, the mere possibility that user-based
Internet screening software would "'soon be widely available'" was
relevant to our rejection of an overbroad restriction of indecent
cyberspeech.
Reno, supra, at 876-877. Compare
Rowan
v.
Post Office Dept., 397 U. S. 728, 729-730
(1970) (upholding statute "whereby any householder may insulate
himself from advertisements that offer for sale 'matter which the
addressee in his sole discretion believes to be erotically arousing
or sexually provocative'" (quoting then 39 U. S. C. § 4009(a) (1964
ed., Supp. IV))), with
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60, 75 (1983) (rejecting blanket ban on the mailing of
unsolicited contraceptive advertisements). Compare also
Ginsberg v.
New York, 390 U. S. 629, 631 (1968)
(upholding state statute barring the sale to minors of material
defined as "obscene on the basis of its appeal to them"), with
Butler v.
Michigan, 352 U. S. 380, 381 (1957)
(rejecting blanket ban of material "'tending to incite minors to
violent or depraved or immoral acts, manifestly tending to the
corruption of the morals of youth'" (quoting then Mich. Penal Code
§ 343)). Each of these cases arose in a different
context-Sable
Communica-
815
tions and
Reno, for instance, also note the
affirmative steps necessary to obtain access to indecent material
via the media at issue-but they provide necessary instruction for
complying with accepted First Amendment principles.
Our zoning cases, on the other hand, are irrelevant to the
question here.
Post, at 838 (BREYER, J., dissenting) (citing
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986), and
Young v.
American Mini Theatres, Inc., 427 U. S. 50 (1976)). We
have made clear that the lesser scrutiny afforded regulations
targeting the secondary effects of crime or declining property
values has no application to content-based regulations targeting
the primary effects of protected speech.
Reno, supra, at
867-868;
Boos, 485 U. S., at 320-321. The statute now before
us burdens speech because of its content; it must receive strict
scrutiny.
There is, moreover, a key difference between cable television
and the broadcasting media, which is the point on which this case
turns: Cable systems have the capacity to block unwanted channels
on a household-by-household basis. The option to block reduces the
likelihood, so concerning to the Court in
Pacifica, supra,
at 744, that traditional First Amendment scrutiny would deprive the
Government of all authority to address this sort of problem. The
corollary, of course, is that targeted blocking enables the
Government to support parental authority without affecting the
First Amendment interests of speakers and willing
listeners-listeners for whom, if the speech is unpopular or
indecent, the privacy of their own homes may be the optimal place
of receipt. Simply put, targeted blocking is less restrictive than
banning, and the Government cannot ban speech if targeted blocking
is a feasible and effective means of furthering its compelling
interests. This is not to say that the absence of an effective
blocking mechanism will in all cases suffice to support a law
restricting the speech in question; but if a less restrictive means
is available for the Government to achieve its goals, the
Government must use it.
816
III
The District Court concluded that a less restrictive alternative
is available: § 504, with adequate publicity. 30 F. Supp. 2d, at
719-720. No one disputes that § 504, which requires cable operators
to block undesired channels at individual households upon request,
is narrowly tailored to the Government's goal of supporting parents
who want those channels blocked. The question is whether § 504 can
be effective.
When a plausible, less restrictive alternative is offered to a
content-based speech restriction, it is the Government's obligation
to prove that the alternative will be ineffective to achieve its
goals. The Government has not met that burden here. In support of
its position, the Government cites empirical evidence showing that
§ 504, as promulgated and implemented before trial, generated few
requests for household-by-household blocking. Between March 1996
and May 1997, while the Government was enjoined from enforcing §
505, § 504 remained in operation. A survey of cable operators
determined that fewer than 0.5% of cable subscribers requested full
blocking during that time.
Id., at 712. The uncomfortable
fact is that § 504 was the sole blocking regulation in effect for
over a year; and the public greeted it with a collective yawn.
The District Court was correct to direct its attention to the
import of this tepid response. Placing the burden of proof upon the
Government, the District Court examined whether § 504 was capable
of serving as an effective, less restrictive means of reaching the
Government's goals.
Id., at 715, 718-719. It concluded that
§ 504, if publicized in an adequate manner, could be.
Id.,
at 719-720.
The District Court employed the proper approach. When the
Government restricts speech, the Government bears the burden of
proving the constitutionality of its actions.
Greater New
Orleans Broadcasting Assn., Inc. v.
United States,
527 U. S. 173,
183 (1999) ("[T]he Government bears
817
the burden of identifying a substantial interest and justifying
the challenged restriction");
Reno, 521 U. S., at 879 ("The
breadth of this content-based restriction of speech imposes an
especially heavy burden on the Government to explain why a less
restrictive provision would not be as effective ... ");
Edenfield v.
Fane, 507 U. S. 761, 770-771
(1993) ("[A] governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are
real and that its restriction will in fact alleviate them to a
material degree");
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 480 (1989)
("[T]he State bears the burden of justifying its restrictions ...
");
Tinker v.
Des Moines Independent Community School
Dist., 393 U. S. 503, 509 (1969) ("In order for the State ...
to justify prohibition of a particular expression of opinion, it
must be able to show that its action was caused by something more
than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint"). When the Government
seeks to restrict speech based on its content, the usual
presumption of constitutionality afforded congressional enactments
is reversed. "Content-based regulations are presumptively invalid,"
R. A. v: v.
St. Paul, 505 U. S. 377, 382 (1992), and
the Government bears the burden to rebut that presumption.
This is for good reason. "[T]he line between speech
unconditionally guaranteed and speech which may legitimately be
regulated, suppressed, or punished is finely drawn."
Speiser
v.
Randall, 357 U. S. 513, 525
(1958). Error in marking that line exacts an extraordinary cost. It
is through speech that our convictions and beliefs are influenced,
expressed, and tested. It is through speech that we bring those
beliefs to bear on Government and on society. It is through speech
that our personalities are formed and expressed. The citizen is
entitled to seek out or reject certain ideas or influences without
Government interference or control.
818
When a student first encounters our free speech jurisprudence,
he or she might think it is influenced by the philosophy that one
idea is as good as any other, and that in art and literature
objective standards of style, taste, decorum, beauty, and esthetics
are deemed by the Constitution to be inappropriate, indeed
unattainable. Quite the opposite is true. The Constitution no more
enforces a relativistic philosophy or moral nihilism than it does
any other point of view. The Constitution exists precisely so that
opinions and judgments, including esthetic and moral judgments
about art and literature, can be formed, tested, and expressed.
What the Constitution says is that these judgments are for the
individual to make, not for the Government to decree, even with the
mandate or approval of a majority. Technology expands the capacity
to choose; and it denies the potential of this revolution if we
assume the Government is best positioned to make these choices for
us.
It is rare that a regulation restricting speech because of its
content will ever be permissible. Indeed, were we to give the
Government the benefit of the doubt when it attempted to restrict
speech, we would risk leaving regulations in place that sought to
shape our unique personalities or to silence dissenting ideas. When
First Amendment compliance is the point to be proved, the risk of
nonpersuasionoperative in all trials-must rest with the Government,
not with the citizen.
Id., at 526.
With this burden in mind, the District Court explored three
explanations for the lack of individual blocking requests. 30 F.
Supp. 2d, at 719. First, individual blocking might not be an
effective alternative, due to technological or other limitations.
Second, although an adequately advertised blocking provision might
have been effective, § 504 as written did not require sufficient
notice to make it so. Third, the actual signal bleed problem might
be far less of a concern than the Government at first had supposed.
Ibid.
819
To sustain its statute, the Government was required to show that
the first was the right answer. According to the District Court,
however, the first and third possibilities were "equally
consistent" with the record before it.
Ibid. As for the
second, the record was "not clear" as to whether enough notice had
been issued to give § 504 a fighting chance.
Ibid. The case,
then, was at best a draw. Unless the District Court's findings are
clearly erroneous, the tie goes to free expression.
The District Court began with the problem of signal bleed
itself, concluding "the Government has not convinced us that
[signal bleed] is a pervasive problem."
Id., at 708-709,
718. The District Court's thorough discussion exposes a central
weakness in the Government's proof: There is little hard evidence
of how widespread or how serious the problem of signal bleed is.
Indeed, there is no proof as to how likely any child is to view a
discernible explicit image, and no proof of the duration of the
bleed or the quality of the pictures or sound. To say that millions
of children are subject to a risk of viewing signal bleed is one
thing; to avoid articulating the true nature and extent of the risk
is quite another. Under § 505, sanctionable signal bleed can
include instances as fleeting as an image appearing on a screen for
just a few seconds. The First Amendment requires a more careful
assessment and characterization of an evil in order to justify a
regulation as sweeping as this. Although the parties have taken the
additional step of lodging with the Court an assortment of
videotapes, some of which show quite explicit bleeding and some of
which show television static or snow, there is no attempt at
explanation or context; there is no discussion, for instance, of
the extent to which any particular tape is representative of what
appears on screens nationwide.
The Government relied at trial on anecdotal evidence to support
its regulation, which the District Court summarized as follows:
820
"The Government presented evidence of two city councillors,
eighteen individuals, one United States Senator, and the officials
of one city who complained either to their [cable operator], to
their local Congressman, or to the FCC about viewing signal bleed
on television. In each instance, the local [cable operator] offered
to, or did in fact, rectify the situation for free (with the
exception of 1 individual), with varying degrees of rapidity.
Included in the complaints was the additional concern that other
parents might not be aware that their children are exposed to this
problem. In addition, the Government presented evidence of a child
exposed to signal bleed at a friend's house. Cindy Omlin set the
lockout feature on her remote control to prevent her child from
tuning to adult channels, but her eleven year old son was
nevertheless exposed to signal bleed when he attended a slumber
party at a friend's house.
"The Government has presented evidence of only a handful of
isolated incidents over the 16 years since 1982 when Playboy
started broadcasting. The Government has not presented any
survey-type evidence on the magnitude of the 'problem.'"
Id., at 709 (footnote and record citations omitted).
Spurred by the District Court's express request for more
specific evidence of the problem, see 945 F. Supp., at 779, n. 16,
the Government also presented an expert's spreadsheet estimate that
39 million homes with 29.5 million children had the potential to be
exposed to signal bleed, 30 F. Supp. 2d, at 708-709. The Government
made no attempt to confirm the accuracy of its estimate through
surveys or other field tests, however. Accordingly, the District
Court discounted the figures and made this finding: "[T]he
Government presented no evidence on the number of households
actually exposed to signal bleed and thus has not quantified the
actual extent of the problem of signal bleed."
Id., at
821
709. The finding is not clearly erroneous; indeed it is all but
required.
Once § 505 went into effect, of course, a significant percentage
of cable operators felt it necessary to time channel their sexually
explicit programmers.
Id., at 711, and n. 14. This is an
indication that scrambling technology is not yet perfected. That is
not to say, however, that scrambling is completely ineffective.
Different cable systems use different scrambling systems, which
vary in their dependability. "The severity of the problem varies
from time to time and place to place, depending on the weather, the
quality of the equipment, its installation, and maintenance."
Id., at 708. At even the good end of the spectrum a system
might bleed to an extent sufficient to trigger the time-channeling
requirement for a cautious cable operator. (The statute requires
the signal to be
"fully block[ed]." 47 U. s. C. § 561(a)
(1994 ed., Supp. III) (emphasis added).) A rational cable operator,
faced with the possibility of sanctions for intermittent bleeding,
could well choose to time channel even if the bleeding is too
momentary to pose any concern to most households. To affirm that
the Government failed to prove the existence of a problem, while at
the same time observing that the statute imposes a severe burden on
speech, is consistent with the analysis our cases require. Here,
there is no probative evidence in the record which differentiates
among the extent of bleed at individual households and no evidence
which otherwise quantifies the signal bleed problem.
In addition, market-based solutions such as programmable
televisions, VCR's, and mapping systems (which display a blue
screen when tuned to a scrambled signal) may eliminate signal bleed
at the consumer end of the cable. 30 F. Supp. 2d, at 708. Playboy
made the point at trial that the Government's estimate failed to
account for these factors.
Id., at 708-709. Without some
sort of field survey, it is impossible to know how widespread the
problem in fact is, and the only indicator in the record is a
handful of complaints. Cf.
822
Turner Broadcasting System, Inc. v.
FCC, 520 U. S. 180, 187 (1997)
(reviewing" 'a record of tens of thousands of pages' of evidence"
developed through "three years of pre-enactment hearings, ... as
well as additional expert submissions, sworn declarations and
testimony, and industry documents" in support of complex must-carry
provisions). If the number of children transfixed by even
flickering pornographic television images in fact reached into the
millions we, like the District Court, would have expected to be
directed to more than a handful of complaints.
No support for the restriction can be found in the near barren
legislative record relevant to this provision. Section 505 was
added to the Act by floor amendment, accompanied by only brief
statements, and without committee hearing or debate. See 141 Congo
Rec. 15586-15589 (1995). One of the measure's sponsors did indicate
she considered time channeling to be superior to voluntary
blocking, which "put[s] the burden of action on the subscriber, not
the cable company."
Id., at 15587 (statement of Sen.
Feinstein). This sole conclusory statement, however, tells little
about the relative efficacy of voluntary blocking versus time
channeling, other than offering the unhelpful, self-evident
generality that voluntary measures require voluntary action. The
Court has declined to rely on similar evidence before. See
Sable
Communications, 492 U. S., at 129-130 ("[A]side from conclusory
statements during the debates by proponents of the bill, ... the
congressional record presented to us contains no evidence as to
how effective or ineffective the ... regulations were or
might prove to be" (footnote omitted));
Reno, 521 U. S., at
858, and n. 24, 875-876, n. 41 (same). This is not to suggest that
a 10,000-page record must be compiled in every case or that the
Government must delay in acting to address a real problem; but the
Government must present more than anecdote and supposition. The
question is whether an actual problem has been proved in this case.
We agree that
823
the Government has failed to establish a pervasive, nationwide
problem justifying its nationwide daytime speech ban.
Nor did the District Court err in its second conclusion.
The Government also failed to prove § 504 with adequate notice
would be an ineffective alternative to § 505. Once again, the
District Court invited the Government to produce its proof. See 945
F. Supp., at 781 ("If the § 504 blocking option is not being
promoted, it cannot become a meaningful alternative to the
provisions of § 505. At the time of the permanent injunction
hearing, further evidence of the actual and predicted impact and
efficacy of § 504 would be helpful to us"). Once again, the
Government fell short. See 30 F. Supp. 2d, at 719 ("[The
Government's argument that § 504 is ineffective] is premised on
adequate notice to subscribers. It is not clear, however, from the
record that notices of the provisions of § 504 have been
adequate"). There is no evidence that a well-promoted voluntary
blocking provision would not be capable at least of informing
parents about signal bleed (if they are not yet aware of it) and
about their rights to have the bleed blocked (if they consider it a
problem and have not yet controlled it themselves).
The Government finds at least two problems with the conclusion
of the three-judge District Court. First, the Government takes
issue with the District Court's reliance, without proof, on a
"hypothetical, enhanced version of Section 504." Brief for
Appellants 32. It was not the District Court's obligation, however,
to predict the extent to which an improved notice scheme would
improve § 504. It was for the Government, presented with a
plausible, less restrictive alternative, to prove the alternative
to be ineffective, and § 505 to be the least restrictive available
means. Indeed, to the extent the District Court erred, it was only
in attempting to implement the less restrictive alternative through
judicial decree by requiring Playboy to provide for expanded notice
in its cable service contracts. The appropriate remedy was not to
repair the statute, it was to enjoin the speech restric-
824
tion. Given the existence of a less restrictive means, if the
Legislature wished to improve its statute, perhaps in the process
giving careful consideration to other alternatives, it then could
do so.
The Government also contends a publicized § 504 will be just as
restrictive as § 505, on the theory that the cost of installing
blocking devices will outstrip the revenues from distributing
Playboy's programming and lead to its cancellation. See 30 F. Supp.
2d, at 713. This conclusion rests on the assumption that a
sufficient percentage of households, informed of the potential for
signal bleed, would consider it enough of a problem to order
blocking devices-an assumption for which there is no support in the
record.
Id., at 719. It should be noted, furthermore, that
Playboy is willing to incur the costs of an effective § 504. One
might infer that Playboy believes an advertised § 504 will be
ineffective for its object, or one might infer the company believes
the signal bleed problem is not widespread. In the absence of
proof, it is not for the Court to assume the former.
It is no response that voluntary blocking requires a consumer to
take action, or may be inconvenient, or may not go perfectly every
time. A court should not assume a plausible, less restrictive
alternative would be ineffective; and a court should not presume
parents, given full information, will fail to act. If unresponsive
operators are a concern, moreover, a notice statute could give
cable operators ample incentive, through fines or other penalties
for noncompliance, to respond to blocking requests in prompt and
efficient fashion.
Having adduced no evidence in the District Court showing that an
adequately advertised § 504 would not be effective to aid desirous
parents in keeping signal bleed out of their own households, the
Government can now cite nothing in the record to support the point.
The Government instead takes quite a different approach. After only
an offhand suggestion that the success of a well-communicated § 504
is "highly
825
unlikely," the Government sets the point aside, arguing instead
that society's independent interests will be unserved if parents
fail to act on that information. Brief for Appellants 32-33
("[U]nder ... an enhanced version of Section 504, parents who had
strong feelings about the matter could see to it that their
children did not view signal bleed-at least in their own homes");
id., at 33 ("Even an enhanced version of Section 504 would
succeed in blocking signal bleed only if, and after, parents
affirmatively decided to avail themselves of the means offered them
to do so. There would certainly be parents-perhaps a large number
of parents-who out of inertia, indifference, or distraction, simply
would take no action to block signal bleed, even if fully informed
of the problem and even if offered a relatively easy solution");
Reply Brief for Appellants 12 ("[Society's] interest would of
course be served in instances ... in which parents request blocking
under an enhanced Section 504. But in cases in which parents fail
to make use of an enhanced Section 504 procedure out of
distraction, inertia, or indifference, Section 505 would be the
only means to protect society's independent interest").
Even upon the assumption that the Government has an interest in
substituting itself for informed and empowered parents, its
interest is not sufficiently compelling to justify this widespread
restriction on speech. The Government's argument stems from the
idea that parents do not know their children are viewing the
material on a scale or frequency to cause concern, or if so, that
parents do not want to take affirmative steps to block it and their
decisions are to be superseded. The assumptions have not been
established; and in any event the assumptions apply only in a
regime where the option of blocking has not been explained. The
whole point of a publicized § 504 would be to advise parents that
indecent material may be shown and to afford them an opportunity to
block it at all times, even when they are not at home and even
after 10 p.m. Time channeling does not offer this assistance. The
regulatory alternative of a publi-
826
cized § 504, which has the real possibility of promoting more
open disclosure and the choice of an effective blocking system,
would provide parents the information needed to engage in active
supervision. The Government has not shown that this alternative, a
regime of added communication and support, would be insufficient to
secure its objective, or that any overriding harm justifies its
intervention.
There can be little doubt, of course, that under a voluntary
blocking regime, even with adequate notice, some children will be
exposed to signal bleed; and we need not discount the possibility
that a graphic image could have a negative impact on a young child.
It must be remembered, however, that children will be exposed to
signal bleed under time channeling as well. Time channeling, unlike
blocking, does not eliminate signal bleed around the clock. Just as
adolescents may be unsupervised outside of their own households, it
is hardly unknown for them to be unsupervised in front of the
television set after 10 p.m. The record is silent as to the
comparative effectiveness of the two alternatives.
***
Basic speech principles are at stake in this case. When the
purpose and design of a statute is to regulate speech by reason of
its content, special consideration or latitude is not accorded to
the Government merely because the law can somehow be described as a
burden rather than outright suppression. We cannot be influenced,
moreover, by the perception that the regulation in question is not
a major one because the speech is not very important. The history
of the law of free expression is one of vindication in cases
involving speech that many citizens may find shabby, offensive, or
even ugly. It follows that all content-based restrictions on speech
must give us more than a moment's pause. If television broadcasts
can expose children to the real risk of harmful exposure to
indecent materials, even in their own home and without parental
consent, there is a problem the
827
Government can address. It must do so, however, in a way
consistent with First Amendment principles. Here the Government has
not met the burden the First Amendment imposes.
The Government has failed to show that § 505 is the least
restrictive means for addressing a real problem; and the District
Court did not err in holding the statute violative of the First
Amendment. In light of our ruling, it is unnecessary to address the
second question presented: whether the District Court was divested
of jurisdiction to consider the Government's post judgment motions
after the Government filed a notice of appeal in this Court. The
judgment of the District Court is affirmed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Section 505 of the Telecommunications Act of 1996, Pub. L.
104-104, 110 Stat. 136, 47 U. S. C. § 561 (1994 ed., Supp. II!),
provides in relevant part:
"(a) Requirement
"In providing sexually explicit adult programming or other
programming that is indecent on any channel of its service
primarily dedicated to sexually-oriented programming, a
multichannel video programming distributor shall fully scramble or
otherwise fully block the video and audio portion of such channel
so that one not a subscriber to such channel or programming does
not receive it.
"(b) Implementation
"Until a multichannel video programming distributor complies
with the requirement set forth in subsection (a) of this section,
the distributor shall limit the access of children to the
programming referred to in that subsection by not providing such
programming during the hours of the day (as determined by the
Commission)
828
STEVENS, J., concurring
when a significant number of children are likely to view it.
"(c) 'Scramble' defined
"As used in this section, the term 'scramble' means to rearrange
the content of the signal of the programming so that the
programming cannot be viewed or heard in an understandable
manner."
Section 504 of the Telecommunications Act of 1996, Pub. L.
104-104, 110 Stat. 136, 47 U. S. C. § 560 (1994 ed., Supp. III),
provides in relevant part:
"(a) Subscriber request
"Upon request by a cable service subscriber, a cable operator
shall, without charge, fully scramble or otherwise fully block the
audio and video programming of each channel carrying such
programming so that one not a subscriber does not receive it.
"(b) 'Scramble' defined
"As used in this section, the term 'scramble' means to rearrange
the content of the signal of the programming so that the
programming cannot be viewed or heard in an understandable
manner."
JUSTICE STEVENS, concurring.
Because JUSTICE SCALIA has advanced an argument that the parties
have not addressed, a brief response is in order. Relying on
Ginzburg v.
United States, 383 U. S. 463 (1966),
JUSTICE SCALIA would treat programs whose content is, he assumes,
protected by the First Amendment as though they were obscene
because of the way they are advertised. The four separate
dissenting opinions in
Ginzburg, authored by Justices Black,
Harlan, Douglas, and Stewart, amply demonstrated the untenable
character of the
Ginzburg decision when it was rendered. The
Ginzburg theory of obscenity is a legal fiction premised
upon a logical bait and switch; adver-
829
tising a bareheaded dancer as "topless" might be deceptive, but
it would not make her performance obscene.
As I explained in my dissent in
Splawn v.
California, 431 U. S. 595, 602
(1977),
Ginzburg was decided before the Court extended First
Amendment protection to commercial speech,
Virginia Bd. of
Pharmacy v.
Virginia Citizens Consumer Council, Inc.,
425 U. S. 748
(1976). JUSTICE SCALIA'S proposal is thus not only anachronistic,
it also overlooks a key premise upon which our commercial speech
cases are based. The First Amendment assumes that, as a general
matter, "information is not in itself harmful, that people will
perceive their own best interests if only they are well enough
informed, and that the best means to that end is to open the
channels of communication rather than to close them."
Id.,
at 770. The very fact that the programs marketed by Playboy are
offensive to many viewers provides a justification for protecting,
not penalizing, truthful statements about their content.
JUSTICE THOMAS, concurring.
It would seem to me that, with respect to at least some of the
cable programming affected by § 505 of the Telecommunications Act
of 1996, the Government has ample constitutional and statutory
authority to prohibit its broadcast entirely. A governmental
restriction on the distribution of obscene materials receives no
First Amendment scrutiny.
Roth v.
United States,
354 U. S. 476,
485 (1957). Though perhaps not all of the programming at issue in
the case is obscene as this Court defined the term in
Miller
v.
California, 413 U. S. 15, 24 (1973),
one could fairly conclude that, under the standards applicable in
many communities, some of the programming meets the
Miller
test. If this is so, the Government is empowered by statute to
sanction these broadcasts with criminal penalties. See 47 U. S. C.
§ 559 (1994 ed., Supp. III) ("Whoever transmits over any cable
system any matter which is obscene or otherwise unprotected by the
Constitu-
830
THOMAS, J., concurring
tion of the United States shall be fined under title 18 or
imprisoned not more than 2 years, or both"). *
However, as the Court points out, this case has been litigated
on the assumption that the programming at issue is
not
obscene, but merely indecent. We have no factual finding that any
of the materials at issue are, in fact, obscene. Indeed, the
District Court described the materials as indecent but not obscene.
945 F. Supp. 772, 774, n. 4 (Del. 1996). The Government does not
challenge that characterization in this Court, Tr. of Oral Arg.
9-10, but instead asks this Court to ratify the statute on the
assumption that this is protected speech. I am unwilling, in the
absence of factual findings or advocacy of the position, to rely on
the view that some of the relevant programming is obscene.
What remains then is the assumption that the programming
restricted by § 505 is not obscene, but merely indecent. The
Government, having declined to defend the statute as a regulation
of obscenity, now asks us to dilute our stringent First Amendment
standards to uphold § 505 as a proper regulation of protected
(rather than unprotected) speech. See Brief for Appellants 18-29
(arguing that traditional strict scrutiny does not apply). I am
unwilling to corrupt the First Amendment to reach this result. The
"starch" in our constitutional standards cannot be sacrificed to
accommodate the enforcement choices of the Government. See
Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U. S. 727, 774 (1996) (SOUTER, J., concurring)
("Reviewing
*1 am referring, here, to unscrambled programming on the Playboy
and Spice channels, examples of which were lodged with the Court.
The Government also lodged videotapes containing signal bleed from
these channels. I assume that if the unscrambled programming on
these channels is obscene, any scrambled but discernible images
from the programs would be obscene as well. In fact, some of the
examples of signal bleed contained in the record may fall within
our definition of obscenity more easily than would the unscrambled
programming because it is difficult to dispute that signal bleed
"lacks serious literary, artistic, political, or scientific value."
Miller v.
California, 413 U. S. 15, 24
(1973).
831
speech regulations under fairly strict categorical rules keeps
the starch in the standards for those moments when the daily
politics cries loudest for limiting what may be said"). Applying
the First Amendment's exacting standards, the Court has correctly
determined that § 505 cannot be upheld on the theory argued by the
Government. Accordingly, I join the opinion of the Court.
JUSTICE SCALIA, dissenting.
I agree with the principal dissent in this case that § 505 of
the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 136,
47 U. S. C. § 561 (1994 ed., Supp. III), is supported by a
compelling state interest and is narrowly tailored. I write
separately to express my view that § 505 can be upheld in simpler
fashion: by finding that it regulates the business of
obscenity.
To be sure, § 505 and the Federal Communications Commission's
implementing regulation, see 47 CFR § 76.227 (1999), purport to
capture programming that is indecent rather than merely that which
is obscene. And I will assume for purposes of this discussion
(though it is a highly fanciful assumption) that none of the
transmissions at issue independently crosses the boundary we have
established for obscenity, see
Miller v.
California,
413 U. S. 15, 24
(1973), so that the individual programs themselves would enjoy
First Amendment protection. In my view, however, that assumption
does not put an end to the inquiry.
We have recognized that commercial entities which engage in "the
sordid business of pandering" by "deliberately emphasiz[ing] the
sexually provocative aspects of [their nonobscene products], in
order to catch the salaciously disposed," engage in
constitutionally unprotected behavior.
Ginzburg v.
United
States, 383 U. S.
463, 467, 472 (1966); see also
FW/ PBS, Inc. v.
Dallas, 493 U.
S. 215, 257-258 (1990) (SCALIA, J., concurring in part and
dissenting in part);
Pinkus v.
United States,
436 U. S. 293,
303-304 (1978);
Splawn v.
California,
832
SCALIA, J., dissenting
431 U. S. 595,
597-599 (1977);
Hamling v.
United States, 418 U. S.
87, 130 (1974). Cf.
Jacobellis v.
Ohio, 378 U. S. 184,201 (1964)
(Warren, C. J., dissenting) ("In my opinion, the use to which
various materials are put-not just the words and pictures
themselves-must be considered in determining whether or not the
materials are obscene"). This is so whether or not the products in
which the business traffics independently meet the high hurdle we
have established for delineating the obscene, viz., that they
contain no "serious literary, artistic, political, or scientific
value."
Miller, supra, at 24. See
Ginzburg, 383 U.
S., at 471. We are more permissive of government regulation in
these circumstances because it is clear from the context in which
exchanges between such businesses and their customers occur that
neither the merchant nor the buyer is interested in the work's
literary, artistic, political, or scientific value. "The deliberate
representation of petitioner's publications as erotically arousing
... stimulate[s] the reader to accept them as prurient; he looks
for titillation, not for saving intellectual content."
Id.,
at 470. Thus, a business that "(1) offer[s] ... hardcore sexual
material, (2) as a constant and intentional objective of [its]
business, [and] (3) seek[s] to promote it as such" finds no
sanctuary in the First Amendment.
FW/ PBS, supra, at 261
(SCALIA J., concurring in part and dissenting in part).
Section 505 regulates just this sort of business. Its coverage
is limited to programming that "describes or depicts sexual or
excretory activities or organs
in a patently offensive
manner as measured by contemporary community standards [for
cable television]." 47 CFR § 76.227(d) (1999) (emphasis added). It
furthermore applies only to those channels that are
"primarily
dedicated to sexually-oriented programming." 1 § 505(a)
(emphasis added). It is conceivable, I suppose, that a channel
which is primarily dedicated to sex
1 Congress's attempt to limit the reach of § 505 is therefore,
contrary to the Court's contention, see
ante, at 812, a
virtue rather than a vice.
833
might not
hold itself forth as primarily dedicated to
sex-in which case its productions which contain "serious literary,
artistic, political, or scientific value" (if any) would be as
entitled to First Amendment protection as the statuary rooms of the
National Gallery. But in the competitive world of cable
programming, the possibility that a channel devoted to sex would
not advertise itself as such is sufficiently remote, and the number
of such channels sufficiently small (if not indeed nonexistent), as
not to render the provision substantially overbroad.2
Playboy itself illustrates the type of business § 505 is
designed to reach. Playboy provides, through its networksPlayboy
Television, AdulTVision, Adam & Eve, and Spice-
2 JUSTICE STEVENS misapprehends in several respects the nature
of the test I would apply. First, he mistakenly believes that the
nature of the advertising controls the obscenity analysis,
regardless of the nature of the material being advertised. I
entirely agree with him that "advertising a bareheaded dancer as
'topless' might be deceptive, but it would not make her performance
obscene."
Ante, at 828-829 (concurring opinion). I believe,
however, that
if the material is "patently offensive"
and it is being advertised as such, we have little reason to
think it is being proffered for its socially redeeming value.
JUSTICE STEVENS'S second misapprehension flows from the first:
He sees the test I would apply as incompatible with the Court's
commercialspeech jurisprudence. See
ante, at 829 (concurring
opinion); see also
Splawn v.
California, 431 U. S. 595, 603, n. 2
(1977) (STEVENS, J., dissenting)
("Ginzburg cannot survive
[Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer
Council, Inc., 425 U. S. 748 (1976)]").
There is no such conflict. Although the
Ginzburg test, like
most obscenity tests, has ordinarily been applied in a commercial
context (most purveyors of obscenity are in the business for the
money), its logic is not restricted to that context. The test
applies equally to the improbable case in which a collector of
indecent materials wishes to give them away, and takes out a
classified ad in the local newspaper touting their salacious
appeal. Commercial motive or not, the" '[c]ircumstances of ...
dissemination are relevant to determining whether [the] social
importance claimed for [the] material [is] ... pretense or
reality.' "
Splawn, supra, at 598 (quoting jury instruction
approved). Perhaps this is why the Court in
Splawn did not
accept JUSTICE STEVENS'S claim of incompatibility.
834
SCALIA, J., dissenting
"virtually 100% sexually explicit adult programming." 30 F.
Supp. 2d 702, 707 (Del. 1998). For example, on its Spice network,
Playboy describes its own programming as depicting such activities
as "female masturbation/external," "girl! girl sex," and "oral
sex/cunnilingus." 1 Record, Exh. 73, p. TWC00132. As one would
expect, given this content, Playboy advertises accordingly, with
calls to "Enjoy the sexiest, hottest adult movies in the privacy of
your own home."
6 id., Exh. 136, at 2P009732. An example of
the promotion for a particular movie is as follows: "Little miss
country girls are aching for a quick roll in the hay! Watch
southern hospitality pull out all the stops as these ravin' nymphos
tear down the barn and light up the big country sky." 7
id.,
Exh. 226, at 2P009187. One may doubt whether-or marvel that-this
sort of embarrassingly juvenile promotion really attracts what
Playboy assures us is an "adult" audience. But it is certainly
marketing sex.3
Thus, while I agree with JUSTICE BREYER'S childprotection
analysis, it leaves me with the same feeling of
3 Both the Court, see
ante, at 811, and JUSTICE THOMAS,
see
ante, at 830 (concurring opinion), find great importance
in the fact that "this case has been litigated on the assumption
that the programming at issue is not obscene, but merely indecent,"
see
ibid. (emphasis deleted). But as I noted in
FW/PBS,
Inc. v.
Dallas, 493 U. S. 215, 262-263
(1990) (opinion concurring in part and dissenting in part), we have
not allowed the parties' litigating positions to place limits upon
our development of obscenity law. See,
e. g., Miller v.
California, 413
U. S. 15, 24-25 (1973) (abandoning "utterly without redeeming
social value" test
sua sponte); Ginzburg v.
United
States, 383 U. S.
463 (1966) (adopting pandering theory unargued by the
Government);
Mishkin v.
New York, 383 U. S. 502 (1966)
(upholding convictions on theory that obscenity could be defined by
looking to the intent of the disseminator, despite respondent's
express disavowal of that theory). As for JUSTICE THOMAS'S concern
that there has been no factual finding of obscenity in this case,
see
ante, at 830 (concurring opinion): This is not an
as-applied challenge, in which the issue is whether a particular
course of conduct constitutes obscenity; it is a facial challenge,
in which the issue is whether the terms of this statute address
obscenity. That is not for the factfinder below, but for this
Court.
835
true-but-inadequate as the conclusion that Al Capone did not
accurately report his income. It is not only children who can be
protected from occasional uninvited exposure to what appellee calls
"adult-oriented programming"; we can all be. Section 505 covers
only businesses that engage in the "commercial exploitation of
erotica solely for the sake of their prurient appeal,"
Ginzburg, 383 U. S., at 466-which, as Playboy's own
advertisements make plain, is what "adult" programming is all
about. In most contexts, contemporary American society has chosen
to permit such commercial exploitation. That may be a wise
democratic choice, if only because of the difficulty in many
contexts (though not this one) of identifying the panderer to sex.
It is, however, not a course compelled by the Constitution. Since
the Government is entirely free to
block these
transmissions, it may certainly take the less drastic step of
dictating how, and during what times, they may occur.
JUSTICE BREYER, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,
and JUSTICE SCALIA join, dissenting.
This case involves the application, not the elucidation, of
First Amendment principles. We apply established First Amendment
law to a statute that focuses upon the broadcast of "sexually
explicit adult programming" on AdulTVision, Adam & Eve, Spice,
and Playboy cable channels. These channels are, as the statute
requires, "primarily dedicated to sexually-oriented programming."
Telecommunications Act of 1996, Pub. L. 104-104, § 505(a), 110
Stat. 136, 47 U. S. C. § 561(a) (1994 ed., Supp. III). Section 505
prohibits cable operators from sending these adult channels into
the homes of viewers who do not request them. In practice, it
requires a significant number of cable operators either to upgrade
their scrambling technology or to avoid broadcasting these channels
during daylight and evening hours (6 a.m. to 10 p.m.). We must
decide whether the First Amendment permits Congress to enact this
statute.
836
BREYER, J., dissenting
The basic, applicable First Amendment principles are not at
issue. The Court must examine the statute before us with great care
to determine whether its speech-related restrictions are justified
by a "compelling interest," namely, an interest in limiting
children's access to sexually explicit material. In doing so, it
recognizes that the Legislature must respect adults' viewing
freedom by "narrowly tailoring" the statute so that it restricts no
more speech than necessary, and choosing instead any alternative
that would further the compelling interest in a "less restrictive"
but "at least as effective" way. See
ante, at 813;
Reno v.
American Civil Liberties Union, 521 U. S. 844, 874
(1997).
Applying these principles, the majority invalidates § 505 for
two reasons. It finds that (1) the "Government has failed to
establish a pervasive, nationwide problem justifying its nationwide
daytime speech ban,"
ante, at 823, and (2) the "Government
... failed to prove" the "ineffective[ness]" of an alternative,
namely, notified viewers requesting that the broadcaster of
sexually explicit material stop sending it,
ibid. In my
view, the record supports neither reason.
I
At the outset, I would describe the statutory scheme somewhat
differently than does the majority. I would emphasize three
background points. First, the statutory scheme reflects more than a
congressional effort to control incomplete scrambling. Previously,
federal law had left cable operators free to decide whether, when,
and how to transmit adult channels. Most channel operators on their
own had decided not to send adult channels into a subscriber's home
except on request. But the operators then implemented that decision
with inexpensive technology. Through signal "bleeding," the
scrambling technology (either inadvertently or by way of
enticement) allowed nonsubscribers to see and hear what was going
on. That is why Congress decided to act.
837
In 1995, Senator Dianne Feinstein, the present statute's
legislative cosponsor, pointed out that "numerous cable operators
across the country are still automatically broadcasting sexually
explicit programming into households across America, regardless of
whether parents want this or subscribers want it." 141 Congo Rec.
15588. She complained that the "industry has only taken baby steps
to address this problem through voluntary policies that simply
recommend action,"
ibid., adding that the "problem is that
there are no uniform laws or regulations that govern such sexually
explicit adult programming on cable television,"
id., at
15587. She consequently proposed, and Congress enacted, the present
statute.
The statute is carefully tailored to respect viewer preferences.
It regulates transmissions by creating two "default rules"
applicable unless the subscriber decides otherwise. Section 504
requires a cable operator to "fully scramble" any channel (whether
or not it broadcasts adult programming)
if a subscriber asks
not to receive it. Section 505 requires a cable operator to
"fully scramble" every adult channel
unless a subscriber
asks to receive it. Taken together, the two provisions create a
scheme that permits subscribers to choose to see what they want.
But each law creates a different "default" assumption about silent
subscribers. Section 504 assumes a silent subscriber wants to see
the ordinary (nonadult) channels that the cable operator includes
in the paidfor bundle sent into the home. Section 505 assumes that
a silent subscriber does not want to receive adult channels.
Consequently, a subscriber wishing to view an adult channel must
"opt in," and specifically request that channel. See § 505. A
subscriber wishing not to view any other channel (sent into the
home) must "opt out." See § 504.
The scheme addresses signal bleed but only indirectly.
From the statute's perspective signal "bleeding"-i.
e., a
failure to fully "rearrange the content of the signal ... so that
the programming cannot be viewed or heard in an under-
838
BREYER, J., dissenting
standable manner," § 504(c)-amounts to transmission into a home.
Hence "bleeding" violates the statute whenever a clear transmission
of an unrequested adult channel would violate the statute.
Second, the majority's characterization of this statutory scheme
as "prohibit[ing] ... speech" is an exaggeration.
Ante, at
812. Rather, the statute places a
burden on adult channel
speech by requiring the relevant cable operator either to use
better scrambling technology, or, if that technology is too
expensive, to broadcast only between 10 p.m. and 6 a.m. Laws that
burden speech, say, by making speech less profitable, may create
serious First Amendment issues, but they are not the equivalent of
an absolute ban on speech itself. Cf.
Nixon v.
Shrink
Missouri Government PAC, 528 U. S. 377 (2000). Thus, this Court
has upheld laws that do not ban the access of adults to sexually
explicit speech, but burden that access through geographical or
temporal zoning. See,
e. g., Renton v.
Playtime Theatres,
Inc., 475 U. S.
41 (1986); FCC v.
Pacifica Foundation, 438 U. S. 726 (1978);
Young v.
American Mini Theatres, Inc., 427 U. S. 50 (1976). This
Court has also recognized that material the First Amendment
guarantees adults the right to see may not be suitable for
children. And it has consequently held that legislatures maintain a
limited power to protect children by restricting access to, but not
banning, adult material. Compare
Ginsberg v.
New
York, 390 U. S.
629 (1968) (upholding ban on sale of pornographic magazines to
minors), with
Butler v.
Michigan, 352 U. S. 380 (1957)
(invalidating ban on all books unfit for minors); see also
Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U. S.
727, 737-753 (1996) (plurality opinion);
Pacifica
Foundation, supra, at
748-750; Reno, supra, at 887-889
(O'CONNOR, J., concurring in part and dissenting in part). The
difference-between imposing a burden and enacting a ban-can matter
even when strict First Amendment rules are at issue.
839
Third, this case concerns only the regulation of commercial
actors who broadcast "virtually 100% sexually explicit" material.
30 F. Supp. 2d 702, 707 (Del. 1998). The channels do not broadcast
more than trivial amounts of more serious material such as birth
control information, artistic images, or the visual equivalents of
classical or serious literature. This case therefore does not
present the kind of narrow tailoring concerns seen in other cases.
See,
e. g., Reno, 521 U. S., at 877-879 ("The
breadth of the [statutue's] coverage is wholly unprecedented ....
[It] cover[s] large amounts of nonpornographic material with
serious educational or other value");
Butler, supra, at
381-384 (invalidating ban on books " 'tending to the corruption of
the morals of youth' ").
With this background in mind, the reader will better understand
my basic disagreement with each of the Court's two conclusions.
II
The majority first concludes that the Government failed to prove
the seriousness of the problem-receipt of adult channels by
children whose parents did not request their broadcast.
Ante, at 819-822. This claim is flat-out wrong. For one
thing, the parties concede that basic RF scrambling does not
scramble the audio portion of the program. 30 F. Supp. 2d, at 707.
For another, Playboy itself conducted a survey of cable operators
who were asked: "Is your system in full compliance with Section 505
(no discernible audio or video bleed)?" To this question, 75% of
cable operators answered "no." See Def. Exh. 254, 2 Record 2.
Further, the Government's expert took the number of homes
subscribing to Playboy or Spice, multiplied by the fraction of
cable households with children and the average number of children
per household, and found 29 million children are potentially
exposed to audio and video bleed from adult programming. Def. Exh.
82,10 Record 11-12. Even discounting by 25% for systems that might
be considered in full compliance, this left 22
840
BREYER, J., dissenting
million children in homes with faulty scrambling systems. See
id., at 12. And, of course, the record contains additional
anecdotal evidence and the concerns expressed by elected officials,
probative of a larger problem. See 30 F. Supp. 2d, at 709, and n.
10; see also 141 Congo Rec. 15586 (1995).
I would add to this empirical evidence the majority's own
statement that
"most cable operators had 'no practical
choice but to curtail'" adult programming by switching to nighttime
only transmission of adult channels.
Ante, at 809 (emphasis
added) (quoting 30 F. Supp. 2d, at 711).
If signal bleed is not
a significant empirical problem, then why, in light of the cost of
its cure, must so many cable operators switch to nighttime
hours? There is no realistic answer to this question. I do not
think it realistic to imagine that signal bleed occurs just enough
to make cable operators skittish, without also significantly
exposing children to these images. See
ante, at 821.
If, as the majority suggests, the signal bleed problem is not
significant, then there is also no significant burden on speech
created by § 505. The majority cannot have this evidence both ways.
And if, given this logical difficulty and the quantity of empirical
evidence, the majority still believes that the Government has not
proved its case, then it imposes a burden upon the Government
beyond that suggested in any other First Amendment case of which I
am aware.
III
The majority's second claim-that the Government failed to
demonstrate the absence of a "less restrictive
alternative"-presents a closer question. The specific question is
whether § 504's "opt-out" amounts to a "less restrictive," but
similarly practical and
effective, way to accomplish
§ 505's child-protecting objective. As
Reno tells us, a
"less restrictive alternativ[eJ" must be "at least as effective in
achieving the legitimate purpose that the statute was enacted to
serve." 521 U. S., at 874.
841
The words I have just emphasized, "similarly" and "effective,"
are critical. In an appropriate case they ask a judge not to apply
First Amendment rules mechanically, but to decide whether, in light
of the benefits and potential alternatives, the statute works
speech-related harm (here to adult speech) out of proportion to the
benefits that the statute seeks to provide (here, child
protection).
These words imply a degree of leeway, however small, for the
Legislature when it chooses among possible alternatives in light of
predicted comparative effects. Without some such empirical leeway,
the undoubted ability of lawyers and judges to imagine
some
kind of slightly less drastic or restrictive an approach would make
it impossible to write laws that deal with the harm that called the
statute into being. As Justice Blackmun pointed out, a "judge would
be unimaginative indeed if he could not come up with something a
little less 'drastic' or a little less 'restrictive' in almost any
situation, and thereby enable himself to vote to strike legislation
down."
Illinois Bd. of Elections v.
Socialist Workers
Party, 440 U. S.
173, 188-189 (1979) (concurring opinion). U sed without a sense
of the practical choices that face legislatures, "the test merely
announces an inevitable [negative] result, and the test is no test
at all."
Id., at 188.
The majority, in describing First Amendment jurisprudence,
scarcely mentions the words "at least as effective"a rather
surprising omission since they happen to be what this case is all
about. But the majority does refer to
Reno's understanding
of less restrictive alternatives,
ante, at 813, and it
addresses the Government's effectiveness arguments,
ante, at
823-826. I therefore assume it continues to recognize their role as
part of the test that it enunciates.
I turn then to the major point of disagreement. Unlike the
majority, I believe the record makes clear that § 504's opt-out is
not a similarly effective alternative. Section 504 (opt-out) and §
505 (opt-in) work differently in order to achieve very different
legislative objectives. Section 504
842
BREYER, J., dissenting
gives parents the power to tell cable operators to keep any
channel out of their home. Section 505 does more. Unless parents
explicitly consent, it inhibits the transmission of adult cable
channels to children whose parents may be unaware of what they are
watching, whose parents cannot easily supervise television viewing
habits, whose parents do not know of their § 504 "opt-out" rights,
or whose parents are simply unavailable at critical times. In this
respect, § 505 serves the same interests as the laws that deny
children access to adult cabarets or X-rated movies.
E. g.,
Del. Code Ann., Tit. 11, § 1365(i)(2) (1995); D. C. Code Ann. §
222001(b)(1)(B) (1996). These laws, and § 505, all act in the
absence of direct parental supervision.
This legislative objective is perfectly legitimate. Where over
28 million school age children have both parents or their only
parent in the work force, where at least 5 million children are
left alone at home without supervision each week, and where
children may spend afternoons and evenings watching television
outside of the home with friends, § 505 offers independent
protection for a large number of families. See U. S. Dept. of
Education, Office of Research and Improvement, Bringing Education
into the After-School Hours 3 (summer 1999). I could not disagree
more when the majority implies that the Government's independent
interest in offering such protection-preventing, say, an 8-year-old
child from watching virulent pornography without parental
consent-might not be "compelling."
Ante, at 825. No previous
case in which the protection of children was at issue has suggested
any such thing. Indeed, they all say precisely the opposite. See
Reno, supra, at 865 (State has an "independent interest in
the well-being of its youth");
Denver Area, 518 U. S., at
743;
New York v.
Ferber, 458 U. S. 747, 756-757
(1982); Ginsberg, 390 U. S., at 640;
Prince v.
Massachusetts, 321 U. S. 158, 165
(1944). They make clear that Government has a compelling interest
in helping parents by preventing
843
minors from accessing sexually explicit materials in the absence
of parental supervision. See
Ginsberg, supra, at 640.
By definition, § 504 does
nothing at all to further the
compelling interest I have just described. How then is it a
similarly effective § 505 alternative?
The record, moreover, sets forth empirical evidence showing that
the two laws are not equivalent with respect to the Government's
objectives. As the majority observes, during the 14 months the
Government was enjoined from enforcing § 505, "fewer than 0.5% of
cable subscribers requested full blocking" under § 504.
Ante, at 816. The majority describes this public reaction as
"a collective yawn,"
ibid., adding that the Government
failed to prove that the "yawn" reflected anything other than the
lack of a serious signal bleed problem or a lack of notice which
better information about § 504 might cure. The record excludes the
first possibilityat least in respect to exposure, as discussed
above. See
supra, at 839-840. And I doubt that the public,
though it may well consider the viewing habits of
adults a
matter of personal choice, would "yawn" when the exposure in
question concerns young children, the absence of parental consent,
and the sexually explicit material here at issue. See
ante,
at 833-834 (SCALIA, J., dissenting).
Neither is the record neutral in respect to the curative power
of better notice. Section 504's opt-out right works only when
parents (1) become aware of their § 504 rights, (2) discover that
their children are watching sexually explicit signal "bleed," (3)
reach their cable operator and ask that it block the sending of its
signal to their home, (4) await installation of an individual
blocking device, and, perhaps (5) (where the block fails or the
channel number changes) make a new request. Better notice of § 504
rights does little to help parents discover their children's
viewing habits (step 2). And it does nothing at all in respect to
steps 3 through 5. Yet the record contains considerable evidence
that those problems matter, i.
e., evidence of endlessly
delayed phone
844
BREYER, J., dissenting
call responses, faulty installations, blocking failures, and
other mishaps, leaving those steps as significant § 504 obstacles.
See,
e. g., Deposition of J. Cavalier in Civ. Action
No. 96-94, pp. 17-18 (D. Del., Dec. 5, 1997) ("It's like calling
any utilities; you sit there, and you wait and wait on thephone ...
[It took] [t]hree weeks, numerous phone calls ... [E]very time I
call Cox Cable ... I get different stories"); Telephonic Deposition
of M. Bennett,
id., at 10-11 (D. Del., Dec. 9, 1997) ("After
two [failed installations,] no, I don't recall calling them again.
I just said well, I guess this is something I'm going to have to
live with").
Further, the District Court's actual plan for "better
notice"-the only plan that makes concrete the majority's "better
notice" requirement-is fraught with difficulties. The District
Court ordered Playboy to insist that cable operators place notice
of § 504 in "inserts in monthly billing statements, barker channels
... and on-air advertising." 30 F. Supp. 2d, at 719. But how can
one say that placing one more insert in a monthly billing statement
stuffed with others, or calling additional attention to adult
channels through a "notice" on "barker" channels, will make more
than a small difference? More importantly, why would doing so not
interfere to some extent with the cable operators' own freedom to
decide what to broadcast? And how is the District Court to
supervise the contracts with thousands of cable operators that are
to embody this requirement?
Even if better notice did adequately inform viewers of their §
504 rights, exercise of those rights by more than 6% of the
subscriber base would itself raise Playboy's costs to the point
that Playboy would be forced off the air entirely, 30 F. Supp. 2d,
at 713-a consequence that would not seem to further anyone's
interest in free speech. The majority, resting on its own earlier
conclusion that signal bleed is not widespread, denies any
likelihood that more than 6% of viewers would need § 504. But that
earlier conclusion is unsound. See
supra, at 839-840. The
majority also relies on
845
the fact that Playboy, presumably aware of its own economic
interests, "is willing to incur the costs of an effective § 504."
Ante, at 824. Yet that denial, as the majority admits, may
simply reflect Playboy's knowledge that § 504, even with better
notice, will not work. Section 504 is not a similarly effective
alternative to § 505 (in respect to the Government's interest in
protecting children), unless more than a minimal number of viewers
actually use it; yet the economic evidence shows that if more than
6% do so, Playboy's programming would be totally eliminated. The
majority provides no answer to this argument in its opinion-and
this evidence is sufficient in and of itself to dispose of this
case.
Of course, it is logically
possible that "better notice"
will bring about near perfect parental knowledge (of what children
watch and § 504 opt-out rights), that cable operators will respond
rapidly to blocking requests, and that still 94% of all informed
parents will decided not to have adult channels blocked for free.
But the
probability that this remote
possibility will
occur is neither a "draw" nor a "tie."
Ante, at 819. And
that fact is sufficient for the Government to have met its burden
of proof.
All these considerations show that § 504's opt-out, even with
the Court's plan for "better notice," is
not similarly
effective in achieving the legitimate goals that the statute was
enacted to serve.
IV
Section 505 raises the cost of adult channel broadcasting.
In doing so, it restricts, but does not ban, adult speech.
Adults may continue to watch adult channels, though less
conveniently, by watching at night, recording programs with a VCR,
or by subscribing to digital cable with better blocking systems.
Cf.
Renton, 475 U. S., at 53-55 (upholding zoning rules that
force potential adult theater patrons to travel to less convenient
locations). The Government's justification for imposing this
restriction-limiting the access of children to channels that
broadcast virtually 100% "sexu-
846
BREYER, J., dissenting
ally explicit" material-is "compelling." The record shows no
similarly effective, less restrictive alternative. Consequently §
505's restriction, viewed in light of the proposed alternative, is
proportionate to need. That is to say, it restricts speech no more
than necessary to further that compelling need. Taken together,
these considerations lead to the conclusion that § 505 is
lawful.
I repeat that my disagreement with the majority lies in the fact
that, in my view, the Government has satisfied its burden of proof.
In particular, it has proved both the existence of a serious
problem and the comparative ineffectiveness of § 504 in resolving
that problem. This disagreement is not about allocation of First
Amendment burdens of proof, basic First Amendment principle, nor
the importance of that Amendment to our scheme of Government. See
ante, at 826-827. First Amendment standards are rigorous.
They safeguard speech. But they also permit Congress to enact a law
that increases the costs associated with certain speech, where
doing so serves a compelling interest that cannot be served through
the adoption of a less restrictive, similarly effective
alternative. Those standards at their strictest make it difficult
for the Government to prevail. But they do not make it impossible
for the Government to prevail.
The majority here, however, has applied those standards without
making a realistic assessment of the alternatives. It thereby
threatens to leave Congress without power to help the millions of
parents who do not want to expose their children to commercial
pornography-but will remain ill served by the Court's chosen
remedy. Worse still, the logic of the majority's "505/504"
comparison (but not its holding that the problem has not been
established) would seem to apply whether "bleeding" or totally
unscrambled transmission is at issue. If so, the public would have
to depend solely upon the voluntary conduct of cable channel
operators to avert considerably greater harm.
847
Case law does not mandate the Court's result. To the contrary,
as I have pointed out, our prior cases recognize that, where the
protection of children is at issue, the First Amendment poses a
barrier that properly is high, but not insurmountable. It is
difficult to reconcile to day's decision with our foundational
cases that have upheld similar laws, such as
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978), and
Ginsberg v.
New York, 390 U. S. 629 (1968). It
is not difficult to distinguish our cases striking down such
lawseither because they applied far more broadly than the narrow
regulation of adult channels here, see,
e. g., Reno v.
American Civil Liberties Union, 521 U. S. 844 (1997),
imposed a total ban on a form of adult speech, see,
e. g., Sable
Communications of Cal., Inc. v.
FCC, 492 U. S. 115 (1989);
Bolger v.
Youngs Drug Products Corp., 463 U. S. 60 (1983), or
because a less restrictive, similarly effective alternative was
otherwise available, see,
e. g., Denver Area, 518 U. S., at
753-760.
Nor is it a satisfactory answer to say, as does JUSTICE THOMAS,
that the Government remains free to prosecute under the obscenity
laws.
Ante, at 829-830. The obscenity exception permits
censorship of communication even among
adults. See,
e.
g., Miller v.
California, 413 U. S. 15 (1973). It
must be kept narrow lest the Government improperly interfere with
the communication choices that adults have freely made. To rely
primarily upon law that bans speech for adults is to overlook the
special need to protect children.
Congress has taken seriously the importance of maintaining adult
access to the sexually explicit channels here at issue. It has
tailored the restrictions to minimize their impact upon adults
while offering parents help in keeping unwanted transmissions from
their children. By finding "adequate alternatives" where there are
none, the Court reduces Congress' protective power to the vanishing
point. That is not what the First Amendment demands.
I respectfully dissent.
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