Supreme Court of the United States
UNITED STATES, et al., Appellants,
v.
PLAYBOY ENTERTAINMENT GROUP, INC.
No. 98-1682.
Argued Nov. 30, 1999.
Decided May 22, 2000.
Cable television programmer brought action
against United States, seeking declaratory judgment that Telecommunications
Act's "signal bleed" provision, requiring cable operators either to
scramble sexually explicit channels in full or limit programming on such
channels to certain hours, was unconstitutional and seeking an injunction
prohibiting law's enforcement. Following trial, a three-judge United States
District Court for the District of Delaware, 30 F.Supp.2d 702, found that provision violated the First Amendment, and
government appealed. The Supreme Court, Justice Kennedy, held that: (1) provision was content-based restriction that was
subject to strict scrutiny, and (2) provision violated the First Amendment's
free speech clause, absent showing by government that provision was least
restrictive means of achieving goal of
preventing children from hearing or seeing images resulting from "signal
bleed."
Affirmed.
Justice Stevens filed a concurring opinion.
Justice Thomas filed a concurring opinion.
Justice Scalia filed a dissenting opinion.
Justice Breyer filed a dissenting opinion, in which Chief Justice Rehnquist and Justices O'Connor and Scalia joined.
West Headnotes
[1] Constitutional Law 
2258
(Formerly 92k90.4(3))
Telecommunications
Act's "signal bleed" provision, requiring cable operators either to
scramble sexually explicit channels in full or limit programming on such
channels to certain hours, was content-based, since it was unconcerned with
"signal bleed" from other types of channels, and provision singled
out particular programmers, since it applied only to channels primarily
dedicated to sexually-oriented programming;
thus, provision was subject to strict scrutiny under the First Amendment. U.S.C.A.
Const.Amend. 1; Communications Act of 1934,
§ 641(a), as amended, 47
U.S.C.A. § 561(a); 47
C.F.R. § 76.227.
[2] Constitutional Law 1490
(Formerly 92k90(1))
Laws
designed or intended to suppress or restrict the expression of specific
speakers contradict basic First Amendment principles. U.S.C.A.
Const.Amend. 1.
[3] Constitutional Law 1518
(Formerly 92k90(3))
Fact that
statute does not impose complete prohibition on certain type of speech, but
instead imposes burden on speech, does not affect analysis of statute under
First Amendment; the distinction between laws burdening and laws banning speech is but a matter of degree, and
the government's content-based burdens must satisfy the same rigorous scrutiny
as its content-based bans. U.S.C.A.
Const.Amend. 1.
[4] Constitutional Law 1518
(Formerly 92k90(3))
If a
statute regulates speech based on its content, 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. U.S.C.A.
Const.Amend. 1.
[5] Constitutional Law 1517
(Formerly 92k90(3))
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. U.S.C.A.
Const.Amend. 1.
[6] Constitutional Law 1790
(Formerly 92k90(3))
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. U.S.C.A.
Const.Amend. 1.
[7] Constitutional Law 2258
(Formerly 92k90.4(3))
[7]
Telecommunications 1205
(Formerly 372k457(2), 372k449.5(4.1))
[7]
Telecommunications 1232
(Formerly 372k457(2),
372k449.5(4.1))
Telecommunications
Act's "signal bleed" provision, requiring cable operators either to
scramble sexually explicit channels in full or limit programming on such
channels to certain hours, violated the First Amendment's free speech clause,
absent showing by government that provision was least restrictive means of
achieving goal of preventing children from hearing or seeing images resulting
from "signal bleed"; there was no evidence either that problem was so
pervasive as to warrant national daytime speech ban or that separate provision
of Act, which required cable operators to block undesired channels at
individual households upon request, could not, with adequate notice,
effectively address the problem. U.S.C.A.
Const.Amend. 1; Communications Act of 1934, §
§ 640, 641(a), as amended, 47
U.S.C.A. § § 560, 561(a); 47
C.F.R. § 76.227.
[8] Constitutional Law 1517
(Formerly 92k90(3))
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.
U.S.C.A.
Const.Amend. 1.
[9] Constitutional Law 1490
(Formerly 92k90(3))
When the
government restricts speech, the government bears the burden of proving the
constitutionality of its actions. U.S.C.A.
Const.Amend. 1.
[10] Constitutional Law 1018
(Formerly 92k48(8))
[10]
Constitutional Law 1038
(Formerly 92k48(8))
[10]
Constitutional Law 1517
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, and the government bears
the burden to rebut that presumption. U.S.C.A.
Const.Amend. 1.
[11] Constitutional Law 1490
(Formerly 92k90(1))
Under
First Amendment's free speech clause, the citizen is entitled to seek out or
reject certain ideas or influences without government interference or
control. U.S.C.A.
Const.Amend. 1.
[12] Telecommunications 1243
(Formerly 372k458(1),
372k449.10(1))
District
court erred in cable television programmer's action asserting First Amendment
challenge to Telecommunications Act's "signal bleed" provision, which
required cable operators either to scramble
sexually explicit channels in full or limit programming on such channels to
certain hours, by requiring programmer to insist on expanded means of giving
notice to subscribers of their ability to seek individual blocking of
particular channels, pursuant to another section of the Act, in its contracts
with cable operators; appropriate remedy was not to repair the statute by
imposing less restrictive means of achieving statutory goal by contract, but to
enjoin the speech restriction. U.S.C.A.
Const.Amend.
1;
Communications Act of 1934, § §
640, 641(a), as amended, 47
U.S.C.A. § § 560, 561(a); 47
C.F.R. § 76.227.
**1880
Syllabus [FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader. See United
States v. Detroit Timber & Lumber Co.,
200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Section 505 of the Telecommunications Act of
1996 requires cable television operators providing 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 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" **1881 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. 1885-1893.
(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
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, 109 S.Ct. 2829, 106 L.Ed.2d 93. 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. 1885-1887.
(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-by-household 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, 119 S.Ct. 1923, 144 L.Ed.2d 161. Of three explanations for the lack of
individual blocking requests under §
504--(1) individual blocking might not be an effective alternative, due
to technological or 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 **1882 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. 1887-1893.
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. 1894, and THOMAS, J., post, p. 1894, filed concurring opinions. SCALIA, J., filed a dissenting opinion, post, p. 1895. BREYER, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined, post, p. 1898.
James
A. Feldman, Washington, DC, for appellants.
*806 Robert
Corn-Revere, Washington, DC, for appellee.
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. **188347
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 *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-by-household basis presented an
effective, less restrictive alternative to §
505. 30
F.Supp.2d 702, 719 (D.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**1884
technologies.' " Reno
v. American Civil Liberties Union,
521 U.S. 844, 857, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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, 117 S.Ct. 2329. 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 (D.Del.1996), 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 (D.Del.1996), and we summarily
affirmed, 520
U.S. 1141, 117 S.Ct. 1309, 137 L.Ed.2d 473 (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 content-based 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 include, suggesting
"[operators] should communicate to their subscribers
the information that certain channels broadcast sexually-oriented
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 Pay-Per-**1885
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, 119 S.Ct. 2365, 144 L.Ed.2d 769 (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.
[1] 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, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark
v. Community for Creative Non-Violence,
468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). It "focuses
only on the content of the speech and the direct impact that speech has
on its listeners." *812Boos
v. Barry,
485 U.S. 312, 321, 108 S.Ct. 1157, 99
L.Ed.2d 333 (1988) (opinion of O'CONNOR,
J.). This is the essence of
content-based regulation.
[2] 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 Cong. 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 **1886 transmitting
like material are altogether exempt.
[3] 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.
[4] *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, 109 S.Ct. 2829, 106 L.Ed.2d 93 (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, 117 S.Ct. 2329 ("[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, 109 S.Ct. 2829 ("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.
[5] 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, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); accord, Erznoznik
v. Jacksonville,
422 U.S. 205, 210-211, 95 S.Ct. 2268, 45 L.Ed.2d 125 (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 Educational Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727, 744, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion);
id.,
at 804-805, 116 S.Ct. 2374 (KENNEDY, J.,
concurring in part, concurring in judgment in part, and dissenting in
part); *814FCC
v. Pacifica Foundation,
438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d
1073 (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 **1887
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, 109 S.Ct. 2829. 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, 117 S.Ct. 2329. Compare Rowan
v. Post Office Dept.,
397 U.S. 728, 729-730, 90 S.Ct. 1484, 25 L.Ed.2d 736 (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, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (rejecting blanket ban on the mailing of unsolicited
contraceptive advertisements). Compare
also Ginsberg
v. New York,
390 U.S. 629, 631, 88 S.Ct. 1274, 20 L.Ed.2d 195 (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, 77 S.Ct. 524, 1 L.Ed.2d 412 (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--*815Sable
Communica
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.
[6] Our zoning cases, on the other hand, are irrelevant to the
question here. Post, at 1899
(BREYER, J., dissenting) (citing Renton
v. Playtime Theatres, Inc.,
475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986),
and Young
v. American Mini Theatres, Inc.,
427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (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, 117 S.Ct. 2329; Boos,
485
U.S., at 320-321, 108 S.Ct. 1157. 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, 98 S.Ct. 3026, 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
[7] The District Court concluded that a less restrictive
alternative is available: **1888
§ 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.
[8] 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.
[9][10] 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, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) ("[T]he Government bears *817 the burden of
identifying a substantial interest and justifying the challenged
restriction"); Reno,
521
U.S., at 879,
117 S.Ct. 2329 ("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, 113 S.Ct. 1792, 123 L.Ed.2d 543 (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, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ("[T]he State bears the burden of justifying its
restrictions ..."); Tinker
v. Des Moines Independent Community School Dist.,
393 U.S. 503, 509, 89 S.Ct. 733, 21 L.Ed.2d 731 (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, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and the Government bears the burden to rebut that
presumption.
[11] 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, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (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 **1889
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
nonpersuasion--operative in all trials--must rest with the Government, not with
the citizen. Id.,
at
526, 78 S.Ct. 1332.
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 **1890 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 councilors, 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." *821Id.,
at 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. **1891 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, 117 S.Ct. 1174, 137 L.Ed.2d 369 (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 Cong. 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, 109 S.Ct. 2829 ("[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, 117 S.Ct. 2329 (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).
[12] 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 **1892 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
restriction. *824 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 **1893 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 publicized *826
§ 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 postjudgment 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. III), 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 **1894
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 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, 86 S.Ct. 942, 16 L.Ed.2d 31 (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; advertising *829
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, 97 S.Ct. 1987, 52 L.Ed.2d 606 (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, 96 S.Ct. 1817, 48 L.Ed.2d 346 (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, 96 S.Ct. 1817. 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. **1895Roth
v. United States,
354 U.S. 476, 485, 77 S.Ct. 1304, 1
L.Ed.2d 1498 (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, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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 Constitution *830 of
the United States shall be fined under title 18 or imprisoned not more than 2
years, or both"). [FN*]
FN* I 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, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
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 (D.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 Educational Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727, 774, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (SOUTER, J., concurring) ("Reviewing *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 **1896 transmissions at issue independently
crosses the boundary we have established for obscenity, see Miller
v. California,
413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); see also FW/PBS,
Inc. v. Dallas,
493 U.S. 215, 257-258, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (SCALIA, J., concurring in part and dissenting in part); Pinkus
v. United States,
436 U.S. 293, 303-304, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978); *832Splawn
v. California, 431 U.S. 595, 597-599, 97 S.Ct. 1987, 52
L.Ed.2d 606 (1977); Hamling
v. United States,
418 U.S. 87, 130, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Cf. Jacobellis
v. Ohio,
378 U.S. 184, 201,
84 S.Ct. 1676, 12 L.Ed.2d 793 (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, 93 S.Ct. 2607. See Ginzburg,
383
U.S., at 471, 86 S.Ct. 942. 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, 86 S.Ct. 942. 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, 110 S.Ct. 596 (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." [FN1] § 505(a) (emphasis added). It is conceivable, I suppose, that a channel
which is primarily dedicated to sex *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. [FN2]
FN1. Congress's
attempt to limit the reach of § 505 is
therefore, contrary to the Court's contention, see ante, at 1885-1886, a
virtue rather than a vice.
FN2. 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 1894 (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 commercial-speech jurisprudence. See ante, at 1894 (concurring
opinion); see also Splawn
v. California,
431 U.S. 595, 603, n. 2, 97 S.Ct. 1987, 52 L.Ed.2d 606 (1977) (STEVENS, J., dissenting) ("Ginzburg cannot survive [Virginia
Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (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, 97 S.Ct. 1987 (quoting jury instruction
approved). Perhaps this is why the
Court in Splawn did not accept Justice STEVENS's claim of incompatibility.
**1897 Playboy itself illustrates the
type of business § 505 is designed to
reach. Playboy provides, through its
networks--Playboy Television, AdulTVision, Adam & Eve, and Spice--*834
"virtually 100% sexually explicit adult programming." 30
F.Supp.2d 702, 707 (D.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. [FN3]
FN3. Both the Court,
see ante, at 1885 and Justice THOMAS, see ante, at 1895
(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, 110 S.Ct. 596, 107 L.Ed.2d 603 (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, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (abandoning "utterly without redeeming social
value" test sua sponte ); Ginzburg
v. United States,
383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966)
(adopting pandering theory unargued by the Government); Mishkin
v. New York,
383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (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 1895
(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.
Thus, while I agree with Justice BREYER's
child-protection analysis, it leaves me with the same feeling of *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," **1898Ginzburg,
383 U.S., at 466, 86 S.Ct. 942--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 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 1886; Reno
v. American Civil Liberties Union,
521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 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 1891, 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, ante, at 1891. 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 **1899 into households across America,
regardless of whether parents want this or subscribers want it." 141 Cong. 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 (non-adult) channels that the
cable operator includes in the paid-for 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 understandable *838 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 1885-1886. 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, 120 S.Ct. 897, 145 L.Ed.2d 886 (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, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986);
FCC
v. Pacifica Foundation,
438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Young
v. American Mini Theatres, Inc.,
427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (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, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding ban on sale of pornographic magazines to
minors), with Butler
v. Michigan,
352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957)
(invalidating ban on all books unfit for minors); see also Denver
Area Educational Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727, 737- 753, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion);
Pacifica
Foundation, supra,
at 748-750, 98 S.Ct. 3026; Reno,
supra,
at 887-889, 117 S.Ct. 2329 (O'CONNOR, J.,
concurring in part and dissenting in part).
The difference--between imposing a burden **1900 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 (D.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, 117 S.Ct. 2329 ("The
breadth of the [statute's] coverage is wholly unprecedented ... .[It] cover[s]
large amounts of nonpornographic material with serious educational or other
value"); Butler,
supra,
at 381-384, 77 S.Ct. 524 (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 1889-1891. 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 *840 22 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 Cong. 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 1884 (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 1890-1891.
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 **1901 practical and effective,
way to accomplish § 505's
child-protecting objective. As Reno tells us, a
"less restrictive alternativ[e]" must be "at least as effective
in achieving the legitimate purpose that the statute was enacted to
serve." 521
U.S., at 874, 117 S.Ct. 2329.
*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, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (concurring opinion).
Used 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, 99 S.Ct. 983.
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 1886, and it addresses the Government's effectiveness arguments, ante,
at 1891-1893. 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 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. § 22-2001(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
1892-1893. No previous case in which
the protection of **1902 children was at issue has suggested any such
thing. Indeed, they all say precisely
the opposite. See Reno,
supra,
at 865, 117 S.Ct. 2329 (State has an
"independent interest in the well-being of its youth"); Denver
Area,
518 U.S., at 743, 116 S.Ct. 2374; New
York v. Ferber,
458 U.S. 747, 756-757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Ginsberg,
390 U.S., at 640, 88 S.Ct. 1274; Prince
v. Massachusetts,
321 U.S. 158, 165, 64 S.Ct. 438, 88 L.Ed. 645 (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, 88 S.Ct. 1274.
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 1888. 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 possibility--at least in respect to
exposure, as discussed above. See supra,
at 1900-1901. 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 1896-1897 (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 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 the
phone.... [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 **1903 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 1900-1901.
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 1892. 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 1889. 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, 106 S.Ct. 925 (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% "sexuallyexplicit" *846
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 1893. 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. **1904 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 today's decision with our foundational cases that have
upheld similar laws, such as FCC
v. Pacifica Foundation,
438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978),
and Ginsberg
v. New York,
390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).
It is not difficult to distinguish our cases striking down such laws--either
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, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989); Bolger
v. Youngs Drug Products Corp.,
463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983),
or because a less restrictive, similarly effective alternative was otherwise
available, see, e.g., Denver
Area,
518 U.S., at 753-760, 116 S.Ct. 2374.
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 1894-1895. The obscenity
exception permits censorship of communication even among adults. See, e.g., Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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.
For U.S. Supreme Court Briefs See:
1999
WL 1021220 (Appellate Brief), REPLY BRIEF FOR THE
APPELLANTS, (November 3, 1999)
For Transcript of Oral Argument See:
1999
WL 1134595 (U.S.Oral.Arg.), Oral Argument,
(November 30, 1999)
529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865,
68 USLW 4409, 28 Media L. Rep. 1801, 00 Cal. Daily Op. Serv. 3966, 2000 Daily
Journal D.A.R. 5305, 2000 CJ C.A.R. 2765, 20 Communications Reg. (P&F) 551,
13 Fla. L. Weekly Fed. S 325
END OF
DOCUMENT