*1 UNITED STATES et al. v. PLAYBOY ENTERTAIN
MENT GROUP, INC. No. 98-1682. Argued 30, 1999 November 22, 2000 Decided May *3 Kennedy, X, delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsbueg, JX, joined. Stevens, X, post, p. 828, and Thomas, X, post, p. 829, filed concurring opinions. Scaua, X, filed a dissenting opinion, post, p. 831. Breyek, X, filed a dissenting opinion, in which Rehnquist, X,C. and O’Connor and Scaua, JX, joined, post, p. 835.
James A. Feldman argued the cause for appellants. With him on the briefs were Solicitor General Waxman, Acting
806 Gen- Deputy Solicitor Schultz, Attorney General
Assistant and Himmelfarb, Lewis, Edward Kneedler, M. Jacob eral Wright. Christopher J. With appellees. argued the cause Corn-Revere
Robert Joseph.* Burton and Moore S. Jean brief were him Court. opinion of delivered Kennedy Justice § Telecommuni- of the challenge 505 to presents a case This C. U. S. 136,47 Stat. 104-104,110 L. Pub. 1996, Act of cations televi- III). requires (1994 Supp. Section § ed., dedicated “primarily channels provide operators who sion or “fully scramble either programming” sexually-oriented their trans- to limit or channels fully those block” otherwise viewing, unlikely be when children hours mission ' p.m. time between as the regulation by administrative set Ill); (1994 561(a) CFR Supp. ed., S. C. 47 U. 6 a.m. sig- statute, (1999). enactment before Even 76.227 operators used Cable already in use. scrambling was nal only business, so regular course scrambling in the Scram- programs; to certain had access paying customers both audio either however; and imprecise, be bling could might programs scrambled portions visual *4 The “signal bleed.” as known phenomenon seen, or heard seeing hearing or from shield children 505 is to purpose signal bleed. resulting from images operators majority statute, comply To channeling,” approach. “time second,
adopted the channeling towas time adoption of widespread of the effect for * a brief filed Taylor Bruce and McGeady, J. LaRue, Paul M. Janet reversal. urging curiae amici al. as et Council Research Family the American for filed were affirmance urging curiae of amici Briefs A. Bam- Michael by et al. Expression Free for Foundation Booksellers Winer; National for H. by Laurence Institute for the Media berger; S. Michael and L. Brenner by Daniel Association Television Cable Therapists Educators, and Researchers, Scholars, Schooler; Sexuality for Jefferson Thomas Berlin; and E. and Joan Heins Marjorie by Wheeler. Joshua J. by Expression of Free Protection for the Center eliminate altogether the transmission of the targeted pro- gramming outside the safe period harbor in affected cable service areas. In other words, for two-thirds of day no household in those service areas could receive the program- ming, whether or not the household or the viewer wanted to do so.
Appellee Playboy Entertainment Group, Inc., challenged the statute as unnecessarily restrictive legis content-based lation 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-by- household presented basis an effective, less restrictive alter native to 505. 30 F. Supp. (Del. 2d 702,719 1998). Finding no error in this conclusion, we affirm. I Playboy Entertainment Group owns prepares pro- grams for adult television networks, including Playboy Tele- vision Spice. Playboy transmits its programming to cable television operators, who retransmit it to their sub- scribers, either through monthly subscriptions to premium channels or on a so-called “pay-per-view” basis. oper- Cable ators transmit Playboy’s signal, like premium other channel signals, in scrambled form. The operators provide then paying subscribers with an “addressable converter,” a box placed on the home television set. The permits converter viewer to see 'and hear signal. descrambled It is conceded that almost all of Playboy’s programming consists of sexually explicit material defined the statute. The statute was enacted because not all scrambling tech- nology perfect. Analog cable systems television may use either “RF” or “baseband” scrambling systems, may which prevent signal bleed, so discernible pictures may ap- pear from time to time on the scrambled screen. Further- *5 more, the listener might hear the portion audio of the program.
808 is problem inevitable. not are imperfections These to convert economical to be appears not present it to alternative systems scrambling or simpler baseband RP Digital scale. systemwide a technologies on scrambling pre- it solution, as another day provide may
technology one are systems digital Indeed, all. problem at bleed no sents choice, which technology of the become projected to technology is Digital problem. signal bleed the eliminate scram- imperfect With however. widespread use, yet in chan- Playboy’s receive paid have who bling, viewers sexually ex- a images of discernible happen may across nels scene the discernible how viewers, many How plicit nature. this at issue are may occur how often sound, and case. phe signal bleed to address enacted was 505 Section regu implementing its and noted, the statute As nomenon. sexually a to scramble operators either require cable lations programming channel’s limit or to in full channel explicit §561 C.S.U. 47 6 a.m. and p.m. 10 between hours to the (1999). 505 §76.227 Section III); (1994 47 CFR Supp. ed., debate, to significant without amendment, by floor added was (Act), legislative major 1996 ofAct Telecommunications encourage ‘the regulation and reduce designed "to effort ” technologies.’ telecommunications of new deployment rapid 844, U. S. Union, 521 Liberties Civil American Reno v. Ti 56). seven includes Act "The (1997) 110 Stat. (quoting committee extensive product of which tles, six prepared Reports subject discussion hearings Representa House the Senate by Committees in Title found Section at 858. supra, Reno, tives.” as the Communications known is itself Act, which V of Section (CDA). 133. 110 Stat. of 1996 Decency Act days after 9,1996, March effective to become was S. C. following 47 U. Note signed by the President. Act was III). (1994 Supp. §561 ed.,
809
On March 7,1996, Playboy
obtained temporary restrain-
ing
(TRO)
order
enjoining the
§505.
enforcement of
918
E Supp. 813 (Del.), and brought this suit in a three-judge
District
pursuant
Court
§to 561 of the Act, 110 Stat. 142,
note following 47
(1994
§
U. S. C. 223
III).
ed., Supp.
Play-
boy 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
(Del.
E Supp. 772
1996), and we summarily affirmed, 520
(1997).
U. S. 1141
The TRO was lifted, and the Federal
Communications Commission announced it
begin
en-
§
forcing 505on May 18,1997. In re Implementation
Sec-
tion 505
Telecommunications Act
1996, 12 FCC
Red. 5212,
(1997).
5214
When the statute
operative,
became
most
operators
cable
had
practical
“no
choice but to
[the
curtail
targeted] pro-
gramming during the [regulated] sixteen hours or risk the
penalties imposed ...
if any audio or
signal
video
bleed oc-
curred] during [those] times.”
based restriction speech. Id., at 714-715. agreed It interests the statute advanced were compelling but con- cluded might Government further those interests in less restrictive ways. Id., at 717-720. One plausible, less re- strictive alternative could be found in another section of the §Act: 504, which requires a operator, “[u]pon request by a cable service subscriber . . . without charge, [to] fully the sub- any channel fully block” or otherwise
scramble C. U. S. 136, 110 Stat. receive. wish does scriber *7 knew III). long subscribers as As (1994 Supp. §560 ed., pro- § would reasoned, court opportunity, this about programming against unwanted protection as much vide time, same theAt 718-720. 2d, Supp. F. 505. would of restrictive be less and would §504 neutral content was rights. Ibid. Amendment Playboy’s First in- would notice” “adequate what described The court suggesting clude, subscribers their communicate
“[operators] should sexually- broadcast channels certain that information appear; may signal bleed... that programming; oriented par- their without signal bleed may view children that blocking channel that permission; knowledge or ents’ a ...; charge and of free available ... devices telephone by a made can be device ... free request for a 719. Id., at [operator].” call to include could this notice providing means The channels barker statements, billing monthly “inserts Pay- coming up on programming channels (preview other on channels Per-View), advertisement on-air and program- explicit sexually broadcasting the one than Ibid. ming.” “conveyed on be could notice added court
The no- include could intervals,” and reasonable basis, at regular Ibid. alignments. changes in channel tice supplemented §504 so concluded Court District The §505, alternative restrictive effective, less an en- §505 unconstitutional consequently declared re- also court The 719-720. Id., at enforcement. joined its con- in its provisions notice these Playboy insist quired Ibid. operators. tracts pursu- this Court appeal a direct filed States United The dismissed thereafter Court §561. District ant lack jurisdiction post-trial two motions filed the Gov- ernment. App. to Juris. Statement 91a-92a. We noted probable jurisdiction, 527 U. S. (1999), and now affirm.
I I Two points essential 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 ma- terial comes unwanted into homes where children might see against hear it parental wishes or consent, there are legiti- mate reasons for regulating it. Second, parties all bring the case to us on premise that Playboy’s programming has First protection. Amendment As this case has been liti- gated, it is not alleged to be obscene; adults have a constitu- *8 right tional to view it; the Government any disclaims interest in preventing children from seeing or hearing it with the consent of parents; their and Playboy has rights concomitant under the First Amendment to transmit it. These points are undisputed. speech The question is by defined 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 in-
decent.” The statute is unconcerned with signal bleed from
any other channels. See 945 F. Supp.,
(“[Section
at 785
505]
does
apply
not
when signal bleed occurs on
premium
other
channel networks, like HBO or the Disney Channel”). The
overriding justification for
regulation
the
is concern for the
effect of the subject matter on young viewers. Section 505
“
is ‘justified without reference to content of the reg-
”
ulated speech.’ Ward v. Rock Against Racism, 491 U. S.
(1989)
781, 791
(quoting Clark v. Community
Creative
for
Non-Violence, 468 U. S.
(1984)).
288, 293
It “focuses only
on the content of
speech
the
and the
impact
direct
speech has on its listeners.” Boos v. Barry,
321 O’Connor, regulation. content-based con- programming particular § single out does only Not program- particular singles out it also regulation,
tent for Congress by thought was question speech in The mers. subject to restriction. were channels all so harmful to be only channels to disability applies statutory Instead, the programming.” sexually-oriented dedicated '‘primarily III). sponsor (1994 561(a) One Supp. ed., S. C. 47 U. Cong. See appellee name. identified even measure Feinstein) (noting the (statement (1995) of Sen. Rec. Playboy and “such channels apply to statute or suppress channels”). intended designed or Laws Spice basic contradict speakers specific expression of restrict Playboy’s limited principles. Section Amendment First though other choice, programming its penalty for aas market alto- transmitting material like capable of channels exempt. gether speech protected statute the federal effect way only reasonable It evident is apparent.
is now comply with operators of cable number a substantial pro- silences channel, which time of 505 the letter every home day in two-thirds speech for tected likely pres- presence regardless area, service According *9 viewers. of wishes ofor of children ence is programming of all adult to 50% “30 Court, the District safe-harbor p.m.,” when to 10 prior by households viewed prohibit this To 711. Supp. 2d, F. begins. 30 period be- of communication significant restriction speech a much listeners, communication willing adult speakers and tween of no mo- It is protection. Amendment enjoys First which prohibi- complete impose not does the statute ment ban- burdening laws laws between distinction tion. Government’s degree. The a matter ning speech is but scru- rigorous satisfy the same must burdens content-based bans. tiny content-based as its §505 Since is a content-based speech restriction, it can
stand only if it satisfies strict scrutiny. Sable Communica tions Cal., Inc. v. FCC, 492 U. S. (1989). 115, 126 If a statute regulates speech based on its content, it must be nar rowly promote tailored to a compelling Government interest. Ibid. If a less restrictive alternative would serve the Gov ernment’s purpose, the legislature must use that alternative. Reno, 521 U. (“[The S., at 874 CDA’sInternet indecency pro visions’] burden on speech adult is unacceptable if less re strictive alternatives would be at least as effective in achiev ing the legitimate purpose that the statute was enacted to serve”); Sable Communications, supra, (“The at 126 Gov ernment may .. . regulate the content of constitutionally protected speech in order promote a compelling interest if it chooses the least restrictive means to further the articu interest”). lated To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment permit. does not precedents Our teach these principles. Where the de signed benefit of a speech content-based restriction is to shield the sensibilities of listeners, general rule is that
the right of expression prevails, even where no less restric tive alternative exists. We are expected protect our own sensibilities “simply by averting [our] eyes.” Cohen v. Cali fornia, 403 U. S. 15, 21(1971); accord, Erznoznik v. Jackson ville, 422 U. S. 205, 210-211(1975). Here, of course, we con sider images transmitted to some homes where they are wanted and where parents often present give im guidance. mediate Cable television, like broadcast media, presents unique problems, which inform our assessment interests at stake, may which justify restrictions that would be unacceptable in other contexts. See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. (1996) S. 727, 744 (plurality opinion);id., at 804-805 (Ken J., concurring part, in nedy, concurring judgment part, and dissenting in part); FCC v. Foundation, 438 Pacifica
814 be must the Government one (1978). suggests No 726 S.U. the into comes speech indecent unwanted, to
indifferent here, agree, all The speech consent. parental without home the standard what is the question speech; is protected con- As we it. to restrict in order must meet Government be clear: should the answer regulation, a content-based sider speech involves case This scrutiny. is strict standard the enters indecent speech where even alone; and to suffice does children shielding of objective the home, accomplished can if the protection ban a blanket support alternative. restrictive less aby of feasibility instance, Communications, for In Sable to access minors’ controlling to approach technological of a complete invalidation required messages “dial-a-porn” And, 130-131. atS.,U. 492 medium. on ban statutory mere possibility in passing, only mentioned while “‘soon be software screening Internet user-based ” an over- of rejection our relevant was available’ widely supra, Reno, cyberspeech. of indecent restriction broad Dept., 397 S.U. Post Rowan v. Office Compare 876-877. house any “whereby statute (1970) (upholding 728, 729-730 offer advertisements from himself insulate may holder discretion sole his addressee which ‘matter sale provocative’” sexually or arousing erotically to be believes IV))), with (1964 ed., Supp. 4009(a) §C. 39 S.U. then (quoting 60, Corp., S.U. Drug Products Youngs Bolger v. unsolicited mailing on ban blanket (1983) (rejecting Ginsberg v. also advertisements). Compare contraceptive statute state (1968) (upholding 629, York, S. 390 U. New “obscene defined of material minors sale barring Michigan, Butler v. them”), with of its appeal basis of material ban blanket (1957) (rejecting 380, 381 U. S. “ immoral or depraved to violent minors incite ‘tending morals corruption to the tending manifestly acts, Each §343)). Code Penal Mich. then (quoting youth’” Communica- context—Sable in a different arose cases these *11 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 comply- ing with accepted First Amendment principles.
Our zoning cases, on the other hand, are irrelevant to the
question here. Post, at 83B (Breyer,
J., dissenting) (citing
Renton v. Playtime Theatres, Inc.,
There is, moreover, a key difference between cable televi- sion and the broadcasting media, which is point on which this case turns: systems Cable 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 problem. The corollary, course, is that targeted blocking enables the Government support parental authority without affecting First Amendment interests of speakers and willing listeners —lis- teners for whom, if speech is unpopular or indecent, the privacy of their own homes may be the optimal place of re- ceipt. 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 goals, its the Government must use it.
I—II—I H-t al- restrictive a less concluded Court District publicity. adequate §504, with available: ternative §504, which disputes one No 719-720. 2d, Supp. F. *12 at indi- channels undesired block to operators cable requires the to narrowly tailored is request, upon households vidual those want who parents supporting of goal Government’s §504 can whether is question The blocked. channels effective. to offered is alternative restrictive less plausible, aWhen ob- Government’s is the restriction, it speech a content-based ineffective bewill alternative that the prove ligation to burden that met has Government goals. The its achieve cites Government the position, of its support In here. and promulgated §504, as showing that evidence empirical for requests few generated trial, before implemented and March blocking. Between household-by-household enforc- from enjoined was Government 1997,while May survey of A operation. §504 remained ing §505, subscrib- of cable 0.5% than fewer determined operators 712. at Id., time. during that blocking full requested ers blocking §504 the sole was fact uncomfortable The it greeted public year; and a over in effect regulation yawn. collective awith attention its direct correct was Court District of Placing burden response. tepid import of examined Court District Government, upon the proof less effective, an serving as of capable §504 was whether Id., goals. reaching Government’s of means restrictive in an publicized if 504, concluded It 718-719. 715, 719-720. Id., at be. manner, could adequate When approach. proper employed Court The District bears the Government speech, restricts the Government actions. constitutionality its of proving the of burden United v. Assn., Inc. Broadcasting Orleans New Greater bears (“[T]he (1999) Government 173, U.S. States, 527 the burden of identifying a substantial interest justi fying the challenged restriction”); Reno, 521 S.,U. at 879 (“The breadth of this content-based restriction speech imposes an especially heavy burden on the Government to explain why a less provision restrictive would not be as ); effective . v. Fane, 507 Edenfield U. S. 761, 770-771 (1993)(“[A]governmental body seeking to sustain a restric tion on speech commercial must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree”); Board Trustees State Univ. N. Y.v. Fox, 492 U. (1989) S. (“[T]he 469, 480 State bears the burden of justifying its ..”); restrictions . Tinker v. Des Moines Independent Community School Dist., 393 U. S. (1969) 503, (“In order for the State ... justify prohibition of 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 unpleasant *13 ness that always accompany an unpopular viewpoint”). When the Government seeks to speech restrict based on its content, the usual presumption of constitutionality afforded congressional enactments is reversed. “Content-based reg ulations are presumptively invalid,” R. A. V.v. St. Paul, 505 U. S. 377, (1992), and the Government bears the burden to rebut that presumption. This is good for reason. “[T]he line speech between un conditionally guaranteed speech and may which legitimately
be regulated, suppressed, or punished is finely drawn.” Speiser v. Randall, 357 U. S. (1958). 513, 525 Error in mark ing that line exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, ex pressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that personalities our are formed and ex pressed. The citizen is entitled to seek out reject or certain ideas or influences without Government interference or control. jurispru- speech free our encounters first student aWhen philoso- by the is influenced it might think she he or dence, art in that other, and any good as is one idea
phy that decorum, taste, style, of standards objective literature and to be by the Constitution deemed are beauty, esthetics and is opposite the Quite unattainable. indeed inappropriate, phi- a relativistic enforces more no The Constitution true. of point any other does it than nihilism moral losophy or and opinions that so precisely exists Constitution view. art about judgments moral and including esthetic judgments, What expressed. tested, formed, be literature, can the for judgments these says is Constitution the even decree, Government for make, not individual Technology ex- majority. a approval of or mandate with potential denies it choose; and capacity pands the posi- best is Government assume if we revolution us. choices these to make tioned speech because restricting regulation rare It towe were Indeed, permissible. be ever will its content it at- when doubt the benefit Government give the regula- leaving risk speech, we restrict tempted personalities unique shape our sought to place in tions com- Amendment First dissenting When ideas. to silence nonpersuasion— risk proved, the point to is the pliance Government, not with rest all trials —must operative 526. Id., citizen. explored Court District mind, *14 burden With requests. blocking individual lack explanations three blocking individual First, 719. at 2d, Supp. F. 3 or technological due alternative, an effective be might not adver adequately although an Second, limitations. other effective, been might have blocking provision tised it so. make notice sufficient require did written aof less far might problem bleed signal actual Third, Ibid. supposed. had first at Government than concern To sustain its statute, the Government required was show that the first was the right answer. According to the District Court, however, the first and possibilities third 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 give 504 a fighting chance. Ibid. The case, then, was at best a draw. Unless the District Court’s findings are clearly erroneous, goes the tie to free expression.
The District Court began with the problem of signal bleed itself, concluding “the Government has not convinced us that [signal bleed] pervasive is a problem.” Id., at 708-709, 718. The District Court’s thorough exposes discussion a central weakness in the proof: Government’s There is little hard evi- dence of how widespread or how serious problem of sig- nal bleed is. Indeed, there proof is no as to likely how any child is to view a discernible explicit image, proof and no the duration of the bleed or the quality pictures of the sound. To say that millions of subject children are to a risk of viewing signal bleed is one thing; to avoid articulating the true nature and extent of the risk quite is another. Under §505, sanctionable signal, bleed can include instances as fleeting as an image appearing on a just screen for a few seconds. The First Amendment requires a more careful as- sessment and characterization of an evil in order to justify regulation as sweeping as this. Although parties have taken the additional step of lodging with Court an assort- ment of videotapes, some of which quite show explicit bleed- ing and some of which show television static or snow, there is no attempt explanation or context; there no discus- sion, 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 city two of presented evidence
“The Government Sen- States one United individuals, eighteen councillors, complained either city who of one officials the and ator, or Congressman, local to their [cable operator], to their In television. on viewing signal bleed FCC about to the or did to, offered operator] [cable local instance, the each (with exception the free for rectify situation the fact, In- rapidity. of varying degrees individual), with of 1 concern additional was the complaints the cluded children their not aware might parents other addition, the Government In problem. to this exposed at signal bleed to exposed a child of evidence presented feature lockout the set Cindy Omlin house. a friend’s tuning child from her prevent to control remote her on never- was year old son eleven her but channels, to adult a attended he signal when bleed exposed theless house. party at friend’s slumber only a of evidence presented has Government “The 1982 since years the over incidents of isolated handful broadcasting. The Government Playboy started when mag- on evidence survey-type any presented has ” (footnote rec- Id., at ‘problem.’ nitude omitted). citations ord more request express Court’s District Spurred 779, at Supp., 945 F. see problem, of the
specific evidence spread- expert’s presented an also Government 16, n. chil- million 29.5 homes 39 million estimate sheet bleed, signal exposed to be potential had the dren attempt no made The Government at 708-709. Supp. 2d, F. surveys through accuracy estimate its confirm Court the District Accordingly, tests, however. field other finding: “[T]he Govern- made figures and discounted households number no evidence presented ment quantified has thus signal bleed actually exposed Id., signal bleed.” problem of the extent actual *16 709. The finding is not clearly erroneous; indeed it is all required. but §Once 505went into effect, of significant course, a percent-
age of 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 per- fected. That is not say, however, that scrambling is completely ineffective. Different cable systems use differ- ent scrambling systems, which vary in their dependability. “The severity problem of the varies from time to time and place place, depending on the weather, the quality of the equipment, its installation, and maintenance.” Id., at 708. At even good end of the spectrum system a might bleed to an extent sufficient to trigger the time-channeling require- ment for a cautious cable operator. (The requires statute signal to be “fully bloek[ed].” 561(a) (1994 47 U. S. C. Ill) ed., Supp. (emphasis added).) A rational cable operator, faced with the possibility of sanctions for intermittent bleed- ing, could well choose to time channel even if the bleeding is too momentary pose any concern to most households. To affirm that the Government failed prove the existence of problem, a while at the same time observing that the statute imposes a severe burden speech, is consistent with the analysis our cases require. Here, there probative no is evi- dence in the record which among differentiates extent of bleed at individual households and no evidence which other- wise quantifies signal problem. bleed In addition, market-based solutions programmable such as televisions, VCR’s, and (which mapping systems display 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 point at trial that the Govern- ment’s estimate failed to account for these factors. Id., at 708-709. Without some sort of field survey, it impossible to know how widespread problem is, fact only and the indicator in the record is a handful of complaints. Cf. 180, 187 U. S. FCC, 520 v. Inc. System, Broadcasting Turner “ of pages’ thousands of tens (reviewing ‘a record
(1997) pre-enactment years through “three developed evidence” submissions, sworn expert additional aswell hearings,... sup industry documents” testimony, and declarations number If must-carry provisions). complex port of televi pornographic flickering by even transfixed children *17 like the we, millions the into reached fact images in sion more to directed be to expected have Court, would District complaints. a handful than near in the found be can restriction the support No Section provision. this to relevant record legislative barren accompanied amendment, by floor Act the to added was 505 hearing or committee without statements, and only brief (1995). the ofOne Cong. 15586-15589 Ree. 141 See debate. time channel considered she indicate did sponsors measure’s the “put[s] blocking, which voluntary superior to to ing be company.” the subscriber, the on action burden Feinstein). eonclu- sole This (statement of Sen. at Id., 15587 effi relative about little tells however, statement, sory channeling, other blocking time versus voluntary cacy of vol generality unhelpful, self-evident offering than has Court The voluntary action. require untary measures Com Sable See before. evidence rely similar to declined conclusory (“[A]side from 129-130 at S.,U. munications, bill,... of the by proponents debates during statements evi no contains us presented record congressional regulations . . . ineffective or how effective toas dence Reno, omitted)); (footnote to be” might prove were (same). is not This 41 n. 24, 875-876, n. 858, and S., at U. every compiled be must 10,000-pagerecord suggest that to address acting delay in must Government or that case than more present must Government but problem; a real ac an whether is question supposition. anecdote agree We ease. in- proved been has problem tual the Government has failed to establish a pervasive, nation- problem wide justifying its daytime nationwide speech ban. Nor did the District Court err in its second conclusion. The Government also § failed prove adequate no- tice would be an ineffective § alternative to 505. again, Once the District Court invited the Government to produce its proof. See 945F. Supp., (“If the 504blocking option is not being promoted, it cannot become a meaningful alter- native to provisions §of 505. At the time of the perma- injunction nent hearing, further evidence of the actual and predicted impact and efficacy §504 helpful be us”). again, Once the Government fell short. See 30 F. Supp. (“[The 2d, at 719 argument Government’s that 504 is ineffective] premised on adequate notice to subscribers. It is not clear, however, from the record that notices of the provisions §of 504 have adequate”). been There is no evi- dence that a well-promoted voluntary blocking provision would not capable at least of informing parents about sig- (if nal bleed they are yet it) aware of and about their rights to have the (if bleed blocked they consider problem it a *18 and have yet not controlled themselves). it The Government finds at least problems two with the con- clusion of the three-judge District Court. First, the Gov- ernment takes issue with the District Court’s reliance, with- proof, out on a “hypothetical, enhanced version of Section 504.” Brief for Appellants 32. It was not the District obligation, Court’s predict however, to the extent to which improved an notice scheme would improve 504. It was for the presented Government, with plausible, a less restrictive alternative, prove to the alternative to be ineffective, and §505 to be the least restrictive available means. Indeed, to the extent the District Court erred, it only was in attempting implement to less restrictive through alternative judicial decree requiring Playboy provide to expanded for notice in its cable service contracts. The appropriate remedy was not to repair the it statute, was enjoin to speech the restric- the if means, restrictive less of a existence the Given
tion. the in perhaps statute, its improve to wished Legislature it alternatives, other to consideration careful giving process so. do could then bewill publicized a contends also Government cost theory the that the §505, on as just restrictive from revenues outstrip the will blocking devices installing cancella- its to lead Playboy’s programming distributing rests conclusion This 713. 2d, at Supp. F. See tion. households, percentage a sufficient assumption that the it consider would bleed, signal for potential the informed assump- devices—an blocking order to problem a enough of 719. Id., at record. support in is no there for which tion willing to Playboy is furthermore, noted, be It should might infer §504. One effective anof costs incur for ineffective §504 bewill an advertised Playboy believes signal believes company might infer one object, or its proof, absence In widespread. is not problem bleed former. assume voluntary Court for it is not con- a requires blocking response no It is go may not or inconvenient, may be or action, take sumer plausi- a assume should court A every time. perfectly a ineffective; and alternative restrictive less ble, information, full given parents, presume should court concern, operators unresponsive If act. fail will ample operators give could statute notice moreover, a noncompliance, penalties other through fines incentive, efficient prompt requests blocking respond to fashion. showing Court District evidence no Having adduced *19 effective § would adequately advertised an own their out signal bleed keeping in parents desirous aid rec- nothing cite now can households, the Government takes instead Government The point. support the ord to sugges- offhand only an After approach. a different quite “highly a well-communicated success tion unlikely,” the Government sets point aside, arguing in- stead that society’sindependent interests will be unserved if parents fail to act on that information. Brief for Appellants (“[U]nder 32-33 ... an enhanced version of Section par- 504, ents who had strong feelings about the matter could see to it that their children did not view signal bleed—at least in their homes”); own (“Even id.,-at 33 an enhanced version of succeed, Section 504 would in blocking signal only bleed 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 parents number — out of —who inertia, indifference, or distraction, simply would take no ac- tion to block signal bleed, even if fully informed of prob- lem and even if offered a relatively easy solution”); Reply Brief for Appellants 12 (“[Society’s]interest would of course be served in instances ... parents which request blocking under an enhanced Section 504. But in cases in par- which ents fail to make use of an enhanced Section 504 procedure out of distraction, inertia, or indifference, Section 505 would be the only protect means to society’sindependent interest”). upon
Even 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 speech. The Government’s argument stems from the idea 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 assumptions apply only in a regime where option of blocking has explained. been point whole publicized 504 tobe advise parents that indecent may material be shown and to afford them an opportunity to block it at all times, even they when are not at home and even after p.m. Time channeling does not offer this assistance. The regulatory alternative publi- of a *20 more promoting possibility of the real has 504, which
cized sys- blocking an effective choice of the and open disclosure en- needed the information parents provide tem, would not shown has Government supervision. The gage in active communication regime added of a alternative, this that or that objective, its to secure be insufficient support, justifies its intervention. overriding harm any voluntary a that under course, of doubt, be little can There children notice, some adequate even blocking regime, the not discount we need bleed; and signal exposed to bewill impact negative a image have could graphic a possibility that however, remembered, must be It young child. on a channel- time under signal bleed exposed to will be children blocking, does channeling, unlike Time ing as well. as adolescents clock. Just the around bleed signal eliminate it is households, own of their outside unsupervised may be the of front in unsupervised be them hardly unknown toas silent is record p.m. The after television set alternatives. two effectiveness comparative [*] [*] [*] When case. at stake principles speech Basie speech regulate tois design a statute purpose is not latitude special consideration content, its reason of can law merely because Government accorded sup- outright than rather burden aas described be somehow per- by the moreover, influenced, cannot pression. We major one is not question regulation ception history of important. very speech is not because in- in cases vindication one expression is of free the law offensive, shabby, may find citizens many volving speech that restrictions content-based all ugly. follows It
or even If pause. a moment’s than give more us speech must risk real to the expose children can broadcasts television own in their even materials, indecent exposure harmful problem a there consent, parental and without home Government can address. It must do so, however, in a way *21 consistent with First Amendment principles. Here the Gov- ernment 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 Dis- trict 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 Dis- trict Court was divested jurisdiction of to consider the Gov- ernment’s postjudgment motions after the Government filed a notice of appeal in this Court. The judgment of the Dis- trict 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 §561 U. (1994 S. C. ed., Supp. Ill), provides in part: relevant
“(a) Requirement
“In providing sexually explicit adult programming or other programming that is indecent any channel of its service primarily dedicated to sexually-oriented pro- gramming, a multichannel video programming distribu- tor shall fully scramble or otherwise fully block video portion audio 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 access of children the programming referred to in that sub- section not providing such programming during the hours (as of the day determined by the Commission) likely to children number significant
when it. view
“(c) defined ‘Scramble’ means ‘scramble’ term section, the in this used “As programming signal rearrange content heard viewed cannot programming so that manner.” understandable an L. 1996, Pub. ofAct Telecommunications
Section Ill), (1994 Supp. ed., §560 S. C. 47 U. 136, Stat. 104-104,110 *22 part: relevant in provides request
“(a) Subscriber a subscriber, service by a cable request “Upon or other- fully scramble charge, without shall, operator programming video audio fully block wise not one so programming carrying such channel each it. receive does a subscriber “(b) defined ‘Scramble’ means ‘scramble’ term section, the in this used “As programming signal of the content rearrange the or heard viewed be cannot programming so manner.” understandable an Stevens, concurring.
Justice
argument that
an
has advanced
Because
Scalia
Justice
in order.
response
a brief
addressed,
have
parties
(1966),
U.
S.
States,
Ginzburg v. United
Relying on
is, he
content
whose
programs
treat
Scalia
Justice
they
though
Amendment
First
by protected
assumes,
The
they are advertised.
way
of the
because
obscene
were
by
Ginzburg, authored
opinions
dissenting
separate
four
amply demon-
Stewart,
Douglas, and
Harlan,
Black,
Justices
Ginzburg decision
character
untenable
strated
obscenity is
theory of
Ginzburg
rendered.
it was
when
switch; adver-
logical bait
a
upon
premised
legal fietion
a
tising
bareheaded dancer as “topless”
might
deceptive,
but it would not make her performance obscene.
As I explained in my dissent in Splawn v. California, U. S. 595, 602 (1977), Ginzburg was decided before the Court
extended First Amendment protection to commercial speech,
Virginia Bd.
Pharmacy
Virginia
v.
Citizens Consumer
Council, Inc.,
Justice Thomas, concurring.
It would seem to me that, with respect
to at least some of
the cable programming affected
§ 505
of the Telecommuni
cations Act of 1996, the Government has ample constitutional
*23
and statutory
to
authority
prohibit its broadcast
A
entirely.
governmental
restriction
on the distribution
of obscene
materials
receives no First Amendment
scrutiny. Roth v.
United States,
830 or im title be,fined under shall States the United tion of both”).* years, than more
prisoned not liti- been has ease this out, points Court the However, as is issue at programming the that assumption gated on the find- factual no haveWe merely indecent. but obscene, not fact, obscene. in are, issue any materials of the ing that inde- materials the described Court the District Indeed, 1996). (Del. 774, n. 4 Supp. 772, F. not obscene. but cent in characterization challenge that does The Government Court this asks instead 9-10, but Arg. Oral of Court, Tr. this protected is this assumption that on the ratify statute the to findings or of factual unwilling, absence the I am speech. of some view rely on the to position, advocacy the of is obscene. programming relevant program- assumption is then remains What merely indecent. obscene, but is not by 505 ming restricted aas statute defend having declined Government, The stringent our dilute asks us obscenity, now regulation reg- proper as a uphold 505 standards Amendment First See speech. (rather unprotected) than protected ulation strict traditional (arguing that Appellants 18-29 Brief corrupt unwilling to I am apply). scrutiny does our “starch” result. to reach Amendment First accommodate sacrificed cannot standards constitutional Denver See the Government. choices enforcement FCC, 518 Inc. v. Consortium, Telecommunications Ed. Area (“Reviewing concurring) (1996) J., 727, U. S. (Souter, Playboy on the programming here, to unscrambled referring, * I am The Gov Court. lodged were which channels, examples Spice chan from these bleed signal containing videotapes lodged also ernment channels on these programming the unscrambled if I assume nels. programs from images discernible but obscene, any scrambled con *24 bleed signal examples of the fact, some In as well. be obscene easily more obscenity definition our may fall within record in the tained dispute it is difficult because programming the unscrambled than scientific artistic, political, literary, serious “lacks bleed signal (1973). 15, 24 U. S. California, v. Miller value.” speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when daily politics cries loudest for limiting may what said”). be Applying the First Amendment’s exacting standards, Court has correctly § determined that 505 cannot upheld be on the theory argued by the Government. Accordingly, join I the opinion of the Court.
Justice Scalia, dissenting. agree I with the principal dissent in this § case that 505 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 136,47 (1994 U. S. C. 561 ed., Supp. III), is supported by a compelling state interest and is narrowly tailored. I write separately to express my view that 505 can upheld in simpler fashion: finding that it regulates the business of obscenity.
To §505 be sure, and the Federal Communications Com- mission’s implementing regulation, see 47 §76.227 CFR (1999), purport to capture programming that is indecent rather than merely that which is obscene. And I will as- sume 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. (1973), 15, 24 so that the individual programs themselves would enjoy First Amendment protection. my In view, however, that assump- tion does not put an end to the inquiry.
We have recognized that commercial entities which engage in “the sordid business of pandering” by “deliberately em- phasizing] the sexually provocative aspects [their nonob- products], scene in order to catch salaciously disposed,” engage in constitutionally unprotected behavior. Ginzburg v. United States, 383 U. S. 463, 467, 472 (1966);see also FW/ Inc, PBS, v. Dallas, 493 U. S. 215, (1990) 257-258 (SCALIA, J., concurring part and dissenting in part); Pinkus v. United States, 436 U. S. 293, (1978); 303-304 Splawn v. California,
832 States, 418 Hamling United v. (1977); S.
431 U. 595, 597-599 S.U. 184, 201 Ohio, 378 v. Cf. Jacobellis (1974). U. S. 87, 130 use (“In opinion, the my dissenting) (Warren, J., C. (1964) and words just the put are materials various to which —not determining in considered pictures themselves—must obscene”). so is This materials not the or whether traffics business the which in products or whether for established have high we hurdle meet independently “serious no they contain viz., that obscene, delineating the Miller, value.” scientific or political, artistic, literary, more areWe atS., Ginzburg, U. 471. 383 24. See supra, at circumstances these in regulation government permissive be exchanges which in context from clear isit because nei that occur customers their and businesses such tween work’s in buyer interested is nor the merchant ther deliber “The value. scientific or political, literary, artistic, erotically as publications petitioner’s representation ate pruri as them accept to stimulate^] reader arousing ... con saving intellectual for titillation, looks ent; he offer[s] ... “(1) that a business Thus, Id., at tent.” 470. intentional (2) a constant as material, sexual hardcore as it promote seek[s] to [and] (3) business, [its] objective FW/ Amendment. First sanctuary no finds such” dis part concurring in supra, at J., (Scalia PBS, 261 part). senting in cover- Its business. sort of just regulates Section sex- depicts or “describes programming to limited age is patently organs a excretory or offensive activities ual community standards contemporary measured manner (1999) (emphasis 76.227(d) CFR television].” [for cable channels only those applies added). It furthermore program- sexually-oriented dedicated “primarily are ming.”1 I conceivable, added). is 505(a) It (emphasis sex dedicated primarily is which channel a suppose, contrary to therefore, §505 reach limit the attempt Congress’s vice. a than rather 812, virtue ante, contention, see Court’s might not hold as primarily itself forth dedicated to sex—in which case productions its which contain "serious literary, artistic, political, or (if *26 scientific value” any) would be as enti- tled to First protection Amendment 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 (if sufficiently small not indeed nonexistent), as not to render the provision substantially overbroad.2 Playboy itself illustrates type of business 505 is de-
signed to reach. Playboy provides, through its networks— Playboy Television, AdulTVision, Adam & Eve, and Spice—
2Justice 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 be lieve, however, that the material is if “patently offensive” and it is being advertised as such, we have little reason 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 commercial- speech jurisprudence. See ante, at 829 (concurring opinion); see also Splawn v. California, 431 U. 595, S. 603, (1977) n. 2 (Stevens, J., dissent- ing) (“Ginzburg cannot survive [Virginia Bd. Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. (1976)]”). 748 There is no such conflict. Although the Ginzburg test, like most obscenity tests, has ordinarily been applied in a commercial (most context purveyors of obscen- ity 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 collec- tor of indecent materials wishes to give them away, and takes out a classi- fied ad in the local newspaper touting their salacious appeal. Commercial motive not, ‘“[cjireumstances of. . . dissemination are relevant to determining whether [the] social importance claimed for [the] material ” [is]... pretense or reality.’ Splawn, supra, at 598 (quoting jury instruc- tion approved). Perhaps this is why the Court in Splawn did not accept Justice Stevens’s claim of incompatibility. BO adult programming.” 100% explicit sexually
“virtually its Spice 1998). For example, (Del. 702, 2d F. Supp. as depict- programming its own describes network, Playboy masturbation/external,” “girl/ “female as activities such ing 73, Exh. Record, sex/cunnilingus.” “oral sex,” girl content, given expect, one would As TWC00132. p. sexi- to “Enjoy calls accordingly, advertises Playboy home.” own your privacy in the movies adult hottest est, the promotion An example id., Exh. 2P009732. 136, follows; girls country miss “Little is as movie for particular hos- southern Watch the hay! roll a quick aching tear nymphos ravin’ these stops out all pull pitality *27 id., Exh. 7 country sky.” the big up light barn the down marvel whether —or doubt may One at 2P009187. 226, really promotion juvenile embarrassingly of sort that —this audience. “adult” an is us assures Playboy what attracts sex.3 marketing certainly it is But child- Breyer’s with I agree Justice while Thus, of feeling the same me leaves it analysis, protection ante, at Thomas, see 3 ante, at 811, and Justice Court, see Both the case “this that fact in the importance great find opinion), (concurring 830 is not issue programming the assumption the on litigated been has deleted). Ias ibid, But (emphasis indecent,” see obscene, merely but (1990) (opinion 215, 262-263 Dallas, U. S. 493 FW/PBS, Inc. v. in noted parties’ allowed have we in part), dissenting concurring part obscenity law. development our upon limits place positions litigating “ut (abandoning (1973) 15, 24-25 S.U. California, e. Miller v. See, g., v. United Ginzburg sponte); sua test value” redeeming social -without terly by unargued theory (1966) pandering (adopting States, S. 463 U. convic (1966) (upholding York, S. 383 U. New v. Government); Mishkin the intent looking to defined be obscenity could theory that tions theory). disavowal express disseminator, respondent’s despite finding factual no been has there concern Thomas’s Justice As for is not This opinion): (concurring ante, at 830 case, see this obscenity in course particular whether is issue in which challenge, as-applied an issue which challenge, a facial it is obscenity; constitutes of conduct not for That obscenity. address statute of this terms is whether Court. below, but factfinder true-but-inadequate as the conclusionthat Capone A1 did not accurately report his income. It is only children who can protected from occasional exposure uninvited to what appellee calls “adult-oriented programming”; we can all be. Section 505 covers only businesses that engage in the “com- mercial exploitation of erotica solely for the sake of their prurient appeal,” Ginzburg, 383 U. S., at which, as 466— Playboy’s own advertisements plain, make is what “adult” programming is all about. In most contexts, contemporary American society has chosen permit such commercial ex- ploitation. That may be a wise democratic choice, if only because of the difficulty in many contexts (though not this one) of identifying panderer to sex. is, It however, not a course compelled by the Constitution. Since the Govern- ment is entirely free to block these transmissions, may it certainly take the less step drastic of dictating how, and dur- ing what they times, may occur. Justice Breyer, with whom The Chief Justice, Jus-
tice 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 & Spice, Eve, and Playboy cable channels. These *28 channels are, as the requires, statute “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) (1994ed., III). Supp. Section prohibits op- cable erators 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 to either upgrade their scrambling technology or to avoid broadcasting these chan- nels during daylight and evening (6 hours a.m. to p.m.). We must decide whether the First permits Amendment Con- gress to enact this statute. are principles Amendment First applicable basic, The us before the statute examine must Court at issue. re- speech-related its whether to determine great care
with namely, interest,” “compelling aby justified strictions explicit sexually access limiting children’s interest an Legislature recognizes the that doing so, it In material. “narrowly tailor- viewing freedom respect adults’ must nec- speech than more no it restricts so that ing” statute fur- would any alternative choosing instead essary, and “at but restrictive” a “less interest compelling ther American v. Reno 813; ante, at way. See effective” least (1997). 844, 874 S.U. Union, 521 Liberties Civil §505 invalidates majority principles, the Applying these has failed (1) “Government finds that It reasons. for two its justifying problem nationwide pervasive, a to establish (2) the and 823, ante, at ban,” speech daytime nationwide “ineffeetive[nessj” of prove” the failed to . . . “Government requesting namely, viewers notified alternative, an sending it, stop explicit material sexually broadcaster I supports neither reason. record my view, the In ibid. statutory scheme describe outset, I would theAt em- I majority. differently does than
somewhat statutory First, points. background phasize three control effort congressional than more reflects scheme left had law Previously, federal scrambling. incomplete how when, whether, to decide free operators their on operators Most channel channels. adult transmit a subscrib- into adult channels send decided had own imple- then operators request. But except home er’s Through technology. inexpensive decision mented (either inad- technology scrambling “bleeding,” the signal enticement) nonsubscribers allowed by way of vertently or Congress why That going on. was what hear to see *29 to act. decided In 1995, Senator Dianne Peinstein, present statute’s
legislative cosponsor, pointed out that “numerous oper- cable ators across the country are still automatically broadcast- ing sexually explicit programming into households across America, regardless of parents whether want this or sub- scribers want it.” 141 Cong. Rec. 15588. She complained that the “industry has only baby taken steps to address this problem through voluntary policies that simply recommend action,” adding ibid., “problem is that there are no uniform laws or regulations that govern such sexually ex- plicit adult programming on cable television,” id., at 15587. She consequently proposed, and Congress enacted, pres- ent statute. The statute is carefully tailored to respect prefer- viewer ences. regulates It transmissions by creating two “default rules” applicable unless the subscriber decides otherwise. Section requires a operator cable to “fully scramble” any (whether channel or not it broadcasts adult programming) if a subscriber asks not to receive it. Section 505 requires a operator cable to “folly scramble” every adult channel unless a subscriber asks to receive it. Taken together, pro- the two visions create a scheme permits subscribers to choose to see they what want. But each law creates a different “default” assumption about silent subscribers. Section assumes a silent subscriber wants to see (non- the ordinary adult) channels that operator includes in paid- for bundle sent into home. Section 505 assumes that 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 any view other channel (sent home) into the must “opt §504. out.” See The scheme addresses signal bleed but only indirectly. From the statute’s perspective signal “bleeding” e., a fail- —i. ure fully “rearrange the content of signal... so that the programming cannot be viewed or heard in an under-
838 504(c) into transmission manner,”
standable —amounts whenever “bleeding” statute violates Hence a home. channel would unrequested adult an a transmission clear violate the statute. statutory of this majority’s characterization
Second, the exaggeration. speech” an . . “prohibiting] . scheme on adult places a burden statute Rather, the Ante, at 812. operator by requiring the relevant speech channel if that technol scrambling technology, or, use either to better p.m. and only 10 between ogy expensive, broadcast is too less speech by making say, speech, that burden 6 a.m. Laws issues, but may First Amendment profitable, create serious speech on ban absolute an they equivalent PAC, 528 Missouri Government v. Shrink Nixon itself. Cf. do (2000). upheld laws has Court Thus, this U. S. 377 speech, but explicit sexually of adults the access not ban zoning. temporal through geographical access burden that 41 Inc., 475 U. S. Playtime Theatres, g., v. See, e. Renton (1978); S. 726 438 U. (1986); Foundation, v. FCC Pacifica (1976). U. 50 427 S. Theatres, Inc., Young Mini v. American First recognized that material also This Court has may right to see adults guarantees Amendment leg consequently held it has for And suitable children. by re children power protect limited maintain islatures Com material. banning, adult stricting to, but not access (1968) (upholding York, 390 S.U. pare Ginsberg v. New minors), But magazines to pornographic on ban sale of (1957)(invalidating all ban Michigan, 352 U. S. ler v. Telecom minors); Ed. Area also Denver see books unfit 727, 737-753 U. S. FCC, v. Consortium, Inc. munications supra, Foundation, (1996) opinion); (plurality Pacifica concurring supra, at Reno, 887-889 748-750; (O’Connor, J., part). The difference—between dissenting in part even matter enacting a ban—can imposing a burden issue. rules are at Amendment when First strict Third, this case concerns only the regulation of commercial actors who broadcast “virtually 100%sexually explicit” ma- terial. 30 F. Supp. (Del. 2d 702, 707 1998), The channels do not broadcast more than trivial amounts of more serious material such as birth control information, artistic images, or the equivalents visual of classical or serious literature. *31 This case therefore does present the kind of narrow tai- loring concerns seen in other cases. e.g., See, Reno, 521 U. S., (“The at 877-879 breadth of the [statutue’s] coverage is wholly unprecedented. . . [It] . cover[s] large amounts of nonpornographic material with serious educational or other value”); Butter, supra, at 381-384 (invalidating ban on books “ Tending to the corruption of the ”). morals youth’ of With this background in mind, the reader will better un- derstand 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 chan- — nels by children parents whose did not request their broad- cast. Ante, at 819-822. This claim is flat-out wrong. For one thing, 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: your “Is system in full compliance with (no Section 505 discernible audio or video bleed)?” To this question, 75% operators cable answered “no.” See Def. Exh. 254,2 Record 2. Further, the Govern- ment’s expert took number of homes subscribing to Play- boy Spice, multiplied by the fraction of cable households with children and the average number of per children house- hold, and found 29 million children are potentially exposed to audio and video bleed from adult programming. Def. 82,10 Exh. Record 11-12. Even discounting by 25% sys- tems might be considered in full compliance, this left 22 scrambling systems. faulty homes children million additional contains record course, the And, 12. id., at See by elected expressed the concerns evidence anecdotal 2d, Supp. 30 F. See problem. larger of a probative officials, (1995). Cong. Rec. see also 10; n. 709, and at own majority’s empirical evidence this to I add choice practical ‘no operators had cable “most statement night- switching to programming adult to curtail’” but (em- at 809 Ante, channels. of adult only transmission time 711). signal Supp. 2d, added) F. (quoting 30 If phasis why, in then problem, empirical significant is not bleed operators many cable so cure, must its cost light answer realistic nois There hours? nighttime switch sig- imagine realistic it think do not I question. skittish, operators make enough to just occurs bleed nal images. these exposing children significantly also without *32 ante, 821. See is problem signal bleed suggests, majority as the If, burden significant no is also there then significant, evi have majority cannot The 505. speech created difficulty and logical given this if, And ways. both dence believes still majority evidence, the empirical quantity imposes it case, then its proved has not Government any in suggested beyond Government upon a burden III I am aware. of which case Amendment First other failed the Government claim—that second majority’s The alterna- restrictive “less of a absence to demonstrate question specific question. a closer presents tive”— but restrictive,” to a “less amounts “opt-out” 504’s whether § 505’s accomplish way to and effective, similarly practical . restric- “less us, a tells Reno As objective. child-protecting achieving effective least be “at alternativ[e]” must tive enacted was statute purpose legitimate 874. S., at 521 U. serve.” The words I just have emphasized, “similarly” and “effec-
tive,” are critical. In an appropriate case they ask a judge not to apply First Amendment rules mechanically, but to de- cide whether, light of the benefits potential alterna- tives, the statute works speech-related (here harm to adult speech) out of proportion to the benefits that the statute seeks provide (here, protection). child
These words imply a degree of leeway, however small, for
the Legislature when it chooses among possible alternatives
in light
predicted
comparative effects. Without some
such empirical leeway, the
ability
undoubted
of lawyers and
judges to imagine some kind of slightly less drastic or re-
strictive an approach would make it impossible to write laws
that deal with the harm that called the statute into being.
As Justice
pointed
Blackmun
out, a “judge would be unimag-
inative indeed if he could not come up with something a little
less ‘drastic’ or a little less ‘restrictive’ in almost any situa-
tion, and thereby enable himself to vote to
legisla-
strike
tion down.” Illinois Bd. Elections v.
Socialist Workers
Party,
The majority, in describing First Amendment jurispru- dence, scarcely mentions 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 *33 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 recog- nize their part role as of the test that it enunciates.
I turn then to the major point of disagreement. Unlike majority, I believe the record makes §504’s clear that opt-out is not a similarly effective alternative. Section 504 (opt-out) §505 and (opt-in) work differently in order to achieve very different legislative objectives. Section 504
842 any keep operators cable to tell power parents the
gives Unless more. does 505 Section home. of their out channel of transmission the inhibits it consent, explicitly parents may un- be parents whose to children channels adult eas- parents cannot watching, whose they are what aware not do parents viewing habits, whose television supervise ily parents are whose rights, or §504 “opt-out” their know §505 respect, In times. critical at simply unavailable ac- deny children laws as the interests same serves g., Code Del. E. movies. X-rated or cabarets to adult cess §22- (1995); Ann. §1365(i)(2) Code C.D. 11, Tit. Ann., 2001(b)(1)(B) in act all §505, (1996). laws, and These supervision. parental of direct absence Where legitimate. perfectly objective legislative This their parents both have age children 28 school million over chil million least 5 at force, where the work only parent in week, each supervision without at home left alone dren evenings and spend afternoons may children where §505 friends, home outside watching television of families. large number a protection independent offers Im Research Education, Office Dept, of U. S. See Hours After-School into Bringing Education provement, ma when disagree 1999). more (summer I could in independent interest the Government’s implies jority child 8-year-old say, an protection preventing, offering such — con parental without pornography watching virulent from previ No 825. Ante, at “compelling.” might sent— has issue atwas of children protection in which ous case precisely say they all Indeed, thing. any such suggested “independ (State an has supra, Reno, opposite. See Area, Denver youth”); its well-being of interest ent 747, 756-757 S.U. Ferber, 458 v. York New 743; atS.,U. Massachusetts, v. Prince 640; S., at (1982);Ginsberg, U. Government (1944). They clear make 158, 165 321 U. S. by preventing parents helping compelling interest has *34 minors from accessing sexually explicit materials in the ab- sence parental supervision. See Ginsberg, supra, at 640.
By § definition, 504 does nothing at all to farther the com- pelling interest I just have described. How then is it a simi- larly § effective 505 alternative?
The record, moreover, sets forth empirical evidence show- ing that the two laws are equivalent with respect to the objectives. Government’s As the majority observes, during the 14 months the Government enjoined was from enforcing §505, “fewer than 0.5% of cable subscribers requested full blocking” §504. under Ante, at 816. The majority de- scribes public reaction as “a yawn,” collective ibid., add- ing that the Government failed prove that the “yawn” re- flected anything other than the lack of a serious signal bleed problem or a lack of notice which better information about § might cure. The record excludes the first possibility— at least in respect to exposure, as discussed above. See supra, at 839-840. And I doubt that public, though it may well consider the viewing habits of adults a matter of personal choice, “yawn” when exposure ques- tion concerns young children, the parental absence of con- sent, 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 (1) when parents become aware of their (2) 504 rights, discover that their children are watching sexually explicit signal (3) “bleed,” reach their operator and ask that it block the sending signal its (4) their home, await instal- lation of an individual blocking device, (5) and, perhaps (where the block fails or channel number changes) make a new request. Better notice of 504 rights does little to help parents discover their children’s viewing 2). habits (step 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 failures, and blocking installations, faulty responses,
call § obsta- 504 significant steps leaving those mishaps, other Action in Civ. J.of Cavalier Deposition e.g., See, cles. calling 1997)("It’s like (D. 5, Dec. Del., pp. 17-18 96-94, No. on wait you wait there, and you sit utilities; any phone [tjhree numerous weeks, took] [It phone .... get different I ... Cable Cox I call [E]very time . . . calls. stories”); Telephonic 10-11 id., at Bennett, of M. Deposition no, installations,] 1997) (“After [failed two (D. 9, Dec. Del., guess Iwell, just said again. I calling them I don’t recall with”). live to have going to something I’m is no- “better plan actual Court’s District Further, “bet- majority’s concrete makes plan that only tice”—the The difficulties. with fraught requirement notice” ter —is operators cable that insist Playboy to ordered Court District statements, billing monthly § in “inserts notice place 2d, Supp. F. advertising.” 30 on-air ... and channels barker insert more one placing say that one can how But 719. at calling others, with stuffed billing monthly statement ain on “notice” through a channels to adult attention additional difference? small more than make channels, will “barker” to some interfere doing so why would importantly, More what decide to freedom own operators’ with extent supervise to Court District is how And broadcast? that operators of cable thousands contracts requirement? embody this viewers inform adequately did notice if better Even 6% than by more rights of those § rights, exercise their costs Playboy’s raise itself would base subscriber of the entirely, air off forced Playboy would point that seem would that consequence 713—a Supp. 2d, F. majority, The speech. free interest anyone’s further is not signal bleed conclusion earlier own resting its on of view 6% than more any likelihood widespread, denies un conclusion earlier §504. But need ers relies also majority supra, at 839-840. See sound. 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 may admits, simply reflect Playboy’s knowledge that 504, even with bet- ter notice, will not work. Section 504 is not a similarly ef- fective alternative (in to 505 respect to the Government’s interest in protecting children), unless more than a minimal number of viewers actually yet use it; the economicevidence *36 shows that if more than 6% do so, Playboy’s programming totally eliminated. The majority provides no an- swer to argument this in opinion its —and evidence is sufficient in and of itself dispose to of this ease. Of course, it is logically possible that “better notice” will bring about near perfect parental (of knowledge what chil- dren §504 watch and opt-out rights), that operators will respond rapidly to blocking requests, and that still 94% of all parents informed will decided not to have adult chan- nels 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 proof. of All these considerations §504’s show that opt-out, even
with the plan Court’s for “better notice,” is not similarly ef- fective in achieving 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, speech. adult Adults may continue to watch adult channels, though less conveniently, by watching night, at recording programs with a VCR, byor subscribing digital cable with better block- ing systems. Cf. Renton, 475 U. S., at 53-55 (upholding zon- ing rules that force potential adult patrons theater to travel to less locations). convenient The justifi- Government’s cation for imposing this limiting the access of restriction — children to channels that broadcast virtually 100% “sexu- shows record “compelling.” material —is explicit”
ally Conse- alternative. restrictive less effective, similarly no proposed light of in viewed §505’s restriction, quently re- say, it tois That need. proportionate alternative, com- that further necessary to than no more speech stricts lead considerations these together, Taken pelling need. lawful. 505 is that conclusion in lies majority disagreement my repeat I its satisfied has the Government my view, that, fact exist- proved both it has particular, proof. In of burden ineffective- comparative problem and serious of a ence disagreement This problem. resolving of 504 ness proof, burdens Amendment First allocation is not about importance nor principle, Amendment First basic ante, See Government. scheme our Amendment They rigorous. standards Amendment First 826-827. enact Congress to permit they also speech. But safeguard speech, *37 certain associated costs increases that a law cannot compelling interest doing serves so where similarly restrictive, a less adoption of through the served strictest at their standards Those alternative. effective they But prevail. to the Government difficult it make prevail. to Government for the impossible it make do not standards those applied has however, here, majority alternatives. making assessment a realistic without to power without Congress to leave thereby threatens It their expose to want do not who parents help millions ill remain will pornography to commercial children —but logic still, the remedy. Worse chosen by the Court’s served holding (but its comparison majority’s “505/504” of the established) to seem would been has problem transmis- totally unscrambled “bleeding” or apply whether solely depend have public so, If issue. sion at operators channel voluntary conduct upon the harm. considerably greater avert
Case law does not mandate the Court’s result. To the contrary, as I pointed have out, prior our recognize cases that, where protection of children is at issue, the First poses Amendment a barrier that properly is high, but not insurmountable. It is difficult to reconcile today’s decision with our foundational cases that upheld have similar laws, such as FCC v. Foundation, Pacifica 438 U. (1978), S. 726 and Ginsberg v. New York, 390 (1968). U. S. 629 It is not difficult to distinguish our cases striking down such laws— either because they applied far more broadly than the nar- regulation row of adult channels here, see, e.g., Reno v. American Civil Liberties Union, 521 U. (1997), S. 844 im- posed a total ban on a form of speech, adult e. g., see, Sable Communications Cal., Inc. v. FCC, 492 U. (1989); S. 115 Bolger v. Youngs Drug Products Corp., 463 U. (1983), S. 60 or because a less restrictive, similarly effective alternative was otherwise available, g., see, e. Denver Area, 518 U. S., at 753-760. Nor is it a satisfactory answer say, as does Justice that the Government remains free Thomas, prosecute
under the obscenity laws. Ante, at 829-830. The obscenity exception permits censorship of communication even among adults. g., See, e. Miller v. California, (1973). 413 U. S. It must be kept narrow lest the Government improperly in- terfere with the communication choices that adults have freely made. To rely primarily upon law speech bans for adults is to overlook special protect need to children. Congress has taken seriously importance of maintain- ing adult access to sexually explicit channels here issue. It has tailored the restrictions to minimize their im- *38 pact upon adults while offering parents help in keeping un- wanted transmissions from their By children. finding “ade- quate 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.