U.S. v. Playboy Ent Group Inc. 529 U.S. 803

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120 S.Ct. 1878 Page 1
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
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
[1] Constitutional Law 92 2258
Supreme Court of the United States 92 Constitutional Law

UNITED STATES, et al., Appellants, 92XVIII Freedom of Speech, Expression, and
v. Press
PLAYBOY ENTERTAINMENT GROUP, INC. 92XVIII(Y) Sexual Expression
No. 98-1682. 92k2252 Telecommunications
92k2258 k. Cable Television; Com-
Argued Nov. 30, 1999. munity Antenna and Satellite Systems. Most Cited
Decided May 22, 2000. Cases
(Formerly 92k90.4(3))
Cable television programmer brought action against
Telecommunications Act's “signal bleed” provision,
United States, seeking declaratory judgment that
requiring cable operators either to scramble sexu-
Telecommunications Act's “signal bleed” provision,
ally explicit channels in full or limit programming
requiring cable operators either to scramble sexu-
on such channels to certain hours, was content-
ally explicit channels in full or limit programming
based, since it was unconcerned with “signal bleed”
on such channels to certain hours, was unconstitu-
from other types of channels, and provision singled
tional and seeking an injunction prohibiting law's
out particular programmers, since it applied only to
enforcement. Following trial, a three-judge United
channels primarily dedicated to sexually-oriented
States District Court for the District of Delaware,
programming; thus, provision was subject to strict
30 F.Supp.2d 702, found that provision violated the
scrutiny under the First Amendment. U.S.C.A.
First Amendment, and government appealed. The
Const.Amend. 1; Communications Act of 1934, §
Supreme Court, Justice Kennedy, held that: (1) pro-
641(a), as amended, 47 U.S.C.A. § 561(a); 47
vision was content-based restriction that was sub-
C.F.R. § 76.227.
ject to strict scrutiny, and (2) provision violated the
First Amendment's free speech clause, absent show- [2] Constitutional Law 92 1490
ing by government that provision was least restrict-
ive means of achieving goal of preventing children 92 Constitutional Law
from hearing or seeing images resulting from 92XVIII Freedom of Speech, Expression, and
“signal bleed.” Press
92XVIII(A) In General
Affirmed. 92XVIII(A)1 In General
92k1490 k. In General. Most Cited
Justice Stevens filed a concurring opinion.
Cases
Justice Thomas filed a concurring opinion. (Formerly 92k90(1))
Laws designed or intended to suppress or restrict
Justice Scalia filed a dissenting opinion. the expression of specific speakers contradict basic
First Amendment principles. U.S.C.A.
Justice Breyer filed a dissenting opinion, in which Const.Amend. 1.
Chief Justice Rehnquist and Justices O'Connor and
Scalia joined. [3] Constitutional Law 92 1518
West Headnotes 92 Constitutional Law

92XVIII Freedom of Speech, Expression, and
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 S.Ct. 1878 Page 2
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
Press 92k1517 k. In General. Most Cited

92XVIII(A) In General Cases
92XVIII(A)1 In General (Formerly 92k90(3))
92k1516 Content-Based Regulations or Where the designed benefit of a content-based
Restrictions speech restriction is to shield the sensibilities of
92k1518 k. Strict or Exacting Scru- listeners, the general rule is that the right of expres-
tiny; Compelling Interest Test. Most Cited Cases sion prevails, even where no less restrictive altern-
(Formerly 92k90(3)) ative exists. U.S.C.A. Const.Amend. 1.
Fact that statute does not impose complete prohibi-
tion on certain type of speech, but instead imposes [6] Constitutional Law 92 1790
burden on speech, does not affect analysis of statute
92 Constitutional Law
under First Amendment; the distinction between
laws burdening and laws banning speech is but a
Press
matter of degree, and the government's content-
92XVIII(G) Property and Events
based burdens must satisfy the same rigorous scru-
92XVIII(G)6 Zoning and Land Use
tiny as its content-based bans. U.S.C.A.
Const.Amend. 1.
Cases
[4] Constitutional Law 92 1518 (Formerly 92k90(3))
The lesser scrutiny afforded regulations targeting
92 Constitutional Law the secondary effects of crime or declining property
92XVIII Freedom of Speech, Expression, and values has no application to content-based regula-
Press tions targeting the primary effects of protected
92XVIII(A) In General speech. U.S.C.A. Const.Amend. 1.
92XVIII(A)1 In General
92k1516 Content-Based Regulations or [7] Constitutional Law 92 2258
Restrictions
92k1518 k. Strict or Exacting Scru-
tiny; Compelling Interest Test. Most Cited Cases
Press
(Formerly 92k90(3))
92XVIII(Y) Sexual Expression
If a statute regulates speech based on its content, it
92k2252 Telecommunications
must be narrowly tailored to promote a compelling
92k2258 k. Cable Television; Com-
government interest, and if a less restrictive altern-
munity Antenna and Satellite Systems. Most Cited
ative would serve the government's purpose, the le-
Cases
gislature must use that alternative. U.S.C.A.
(Formerly 92k90.4(3))
Const.Amend. 1.
Telecommunications 372 1205
372 Telecommunications
372VI Cable Television
372k1202 Constitutional and Statutory Provi-
Press
sions
372k1205 k. Validity. Most Cited Cases
(Formerly 372k457(2), 372k449.5(4.1))
92k1516 Content-Based Regulations or
Restrictions Telecommunications 372 1232

120 S.Ct. 1878 Page 3
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
372 Telecommunications 92XVIII Freedom of Speech, Expression, and

372VI Cable Television Press
372k1229 Program Content; Access Rules 92XVIII(A) In General
372k1232 k. Indecent, Obscene or Violent 92XVIII(A)1 In General
Programs. Most Cited Cases 92k1490 k. In General. Most Cited
(Formerly 372k457(2), 372k449.5(4.1)) Cases
Telecommunications Act's “signal bleed” provision, (Formerly 92k90(3))
requiring cable operators either to scramble sexu- When the government restricts speech, the govern-
ally explicit channels in full or limit programming ment bears the burden of proving the constitutional-
on such channels to certain hours, violated the First ity of its actions. U.S.C.A. Const.Amend. 1.
Amendment's free speech clause, absent showing
by government that provision was least restrictive [10] Constitutional Law 92 1018
means of achieving goal of preventing children
from hearing or seeing images resulting from
92VI Enforcement of Constitutional Provisions
“signal bleed”; there was no evidence either that
92VI(C) Determination of Constitutional
problem was so pervasive as to warrant national
Questions
daytime speech ban or that separate provision of
92VI(C)3 Presumptions and Construction
Act, which required cable operators to block un-
as to Constitutionality
desired channels at individual households upon re-
92k1006 Particular Issues and Applica-
quest, could not, with adequate notice, effectively
tions
address the problem. U.S.C.A. Const.Amend. 1;
92k1018 k. Freedom of Speech, Ex-
Communications Act of 1934, §§ 640, 641(a), as
pression, and Press. Most Cited Cases
amended, 47 U.S.C.A. §§ 560, 561(a); 47 C.F.R. §
(Formerly 92k48(8))
76.227.
Constitutional Law 92 1038
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Press
Questions
92VI(C)4 Burden of Proof
92k1032 Particular Issues and Applica-
tions
Restrictions
92k1038 k. Freedom of Speech, Ex-
pression, and Press. Most Cited Cases
Cases
(Formerly 92k48(8))
(Formerly 92k90(3))
When a plausible, less restrictive alternative is Constitutional Law 92 1517
offered to a content-based speech restriction, it is
the government's obligation to prove that the altern- 92 Constitutional Law
ative will be ineffective to achieve its goals. 92XVIII Freedom of Speech, Expression, and
U.S.C.A. Const.Amend. 1. Press
[9] Constitutional Law 92 1490 92XVIII(A)1 In General

120 S.Ct. 1878 Page 4
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
Restrictions to enjoin the speech restriction. U.S.C.A.

92k1517 k. In General. Most Cited Const.Amend. 1; Communications Act of 1934, §§
Cases 640, 641(a), as amended, 47 U.S.C.A. §§ 560,
(Formerly 92k90(3)) 561(a); 47 C.F.R. § 76.227.
When the government seeks to restrict speech based FN*
on its content, the usual presumption of constitu- **1880 Syllabus
tionality afforded congressional enactments is re-
FN* The syllabus constitutes no part of the
versed; content-based regulations are presumptively
opinion of the Court but has been prepared
invalid, and the government bears the burden to re-
by the Reporter of Decisions for the con-
but that presumption. U.S.C.A. Const.Amend. 1.
venience of the reader. See United States v.
[11] Constitutional Law 92 1490 Detroit Timber & Lumber Co., 200 U.S.
321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
92XVIII Freedom of Speech, Expression, and Section 505 of the Telecommunications Act of
Press 1996 requires cable television operators providing
92XVIII(A) In General channels “primarily dedicated to sexually-oriented
92XVIII(A)1 In General programming” either to “fully scramble or other-
92k1490 k. In General. Most Cited wise fully block” those channels or to limit their
Cases transmission to hours when children are unlikely to
(Formerly 92k90(1)) be viewing, set by administrative regulation as
Under First Amendment's free speech clause, the between 10 p.m. and 6 a.m. Even before § 505's en-
citizen is entitled to seek out or reject certain ideas actment, cable operators used signal scrambling to
or influences without government interference or limit access to certain programs to paying custom-
control. U.S.C.A. Const.Amend. 1. ers. Scrambling could be imprecise, however; and
either or both audio and visual portions of the
[12] Telecommunications 372 1243 scrambled programs might be heard or seen, a phe-
nomenon known as “signal bleed.” The purpose of
372 Telecommunications § 505 is to shield children from hearing or seeing
372VI Cable Television images resulting from signal bleed. To comply with
372k1242 Judicial Review or Intervention § 505, the majority of cable operators adopted the
372k1243 k. In General. Most Cited Cases “time channeling” **1881 approach, so that, for
(Formerly 372k458(1), 372k449.10(1)) two-thirds of the day, no viewers in their service
District court erred in cable television program- areas could receive the programming in question.
mer's action asserting First Amendment challenge Appellee Playboy Entertainment Group, Inc., filed
to Telecommunications Act's “signal bleed” provi- this suit challenging § 505's constitutionality. A
sion, which required cable operators either to three-judge District Court concluded that § 505's
scramble sexually explicit channels in full or limit content-based restriction on speech violates the
programming on such channels to certain hours, by First Amendment because the Government might
requiring programmer to insist on expanded means further its interests in less restrictive ways. One
of giving notice to subscribers of their ability to plausible, less restrictive alternative could be found
seek individual blocking of particular channels, in § 504 of the Act, which requires a cable operator,
pursuant to another section of the Act, in its con- “[u]pon request by a cable service subscriber ...
tracts with cable operators; appropriate remedy was without charge, [to] fully scramble or otherwise
not to repair the statute by imposing less restrictive fully block” any channel the subscriber does not
means of achieving statutory goal by contract, but wish to receive. As long as subscribers knew about

120 S.Ct. 1878 Page 5
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
this opportunity, the court reasoned, § 504 would empirical evidence that § 504 generated few re-
provide as much protection against unwanted pro- quests for household-by-household blocking during
gramming as would § 505. a period when it was the sole federal blocking stat-
ute in effect, the District Court correctly concluded
Held: Because the Government failed to prove § that § 504, if publicized in an adequate manner,
505 is the least restrictive means for addressing a could serve as an effective, less restrictive means of
real problem, the District Court did not err in hold- reaching the Government's goals. When the Gov-
ing the statute violative of the First Amendment. ernment restricts speech, the Government bears the
Pp. 1885-1893. burden of proving the constitutionality of its ac-
tions. E.g., Greater New Orleans Broadcasting
(a) Two points should be understood: (1) Many
Assn., Inc. v. United States, 527 U.S. 173, 183, 119
adults would find the material at issue highly of-
S.Ct. 1923, 144 L.Ed.2d 161. Of three explanations
fensive, and considering that the material comes
for the lack of individual blocking requests under §
unwanted into homes where children might see or
504-(1) individual blocking might not be an effect-
hear it against parental wishes or consent, there are
ive alternative, due to technological or other limita-
legitimate reasons for regulating it; and (2) Play-
tions; (2) although an adequately advertised block-
boy's programming has First Amendment protec-
ing provision might have been effective, § 504 as
tion. *804 Section 505 is a content-based regula-
written does not require sufficient notice to make it
tion. It also singles out particular programmers for
so; and (3) the actual signal bleed problem might be
regulation. It is of no moment that the statute does
far less of a concern than the Government at first
not impose a complete prohibition. Since § 505 is
had supposed-the Government had to show that the
content based, it can stand only if it satisfies strict
first was the right answer. According to the District
scrutiny. E.g., Sable Communications of Cal., Inc.
Court, however, the first and third possibilities
v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106
were “equally consistent” with the **1882 record
L.Ed.2d 93. It must be narrowly tailored to promote
before it, and the record was not clear as to whether
a compelling Government interest, and if a less re-
enough notice had been issued to give § 504 a
strictive alternative would serve the Government's
fighting chance. Unless the District Court's findings
purpose, the legislature must use that alternative.
are clearly erroneous, the tie goes to free expres-
Cable television, like broadcast media, presents
sion. With regard to signal bleed itself, the District
unique problems, but even where speech is indecent
Court's thorough discussion exposes a central
and enters the home, the objective of shielding chil-
weakness in the Government's proof: There is little
dren does not suffice to support a blanket ban if the
hard evidence of how widespread *805 or how seri-
protection can be obtained by a less restrictive al-
ous the problem is. There is no proof as to how
ternative. There is, moreover, a key difference
likely any child is to view a discernible explicit im-
between cable television and the broadcasting me-
age, and no proof of the duration of the bleed or the
dia: Cable systems have the capacity to block un-
quality of the pictures or sound. Under § 505, sanc-
wanted channels on a household-by-household
tionable signal bleed can include instances as fleet-
basis. Targeted blocking is less restrictive than ban-
ing as an image appearing on a screen for just a few
ning, and the Government cannot ban speech if tar-
seconds. The First Amendment requires a more
geted blocking is a feasible and effective means of
careful assessment and characterization of an evil
furthering its compelling interests. Pp. 1885-1887.
in order to justify a regulation as sweeping as this.
(b) No one disputes that § 504 is narrowly tailored The Government has failed to establish a pervasive,
to the Government's goal of supporting parents who nationwide problem justifying its nationwide day-
want sexually explicit channels blocked. The ques- time speech ban. The Government also failed to
tion here is whether § 504 can be effective. Despite prove § 504, with adequate notice, would be inef-

120 S.Ct. 1878 Page 6
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
fective. There is no evidence that a well-promoted pellee.

voluntary blocking provision would not be capable
at least of informing parents about signal bleed (if For U.S. Supreme Court briefs, see:1999 WL
they are not yet aware of it) and about their rights 1021220 (Reply.Brief)1999 WL 700620
to have the bleed blocked (if they consider it a (Appellant.Brief)1999 WL 756117 (Appellee.Brief)
problem and have not yet controlled it themselves).
Justice KENNEDY delivered the opinion of the
A court should not assume a plausible, less restrict-
Court.
ive alternative would be ineffective; and a court
should not presume parents, given full information, This case presents a challenge to § 505 of the Tele-
will fail to act. The Government also argues soci- communications Act of 1996, Pub.L. 104-104, 110
ety's independent interests will be unserved if par- Stat. 136, 47 U.S.C. § 561 (1994 ed., Supp. III).
ents fail to act on that information. Even upon the Section 505 requires cable television operators who
assumption that the Government has an interest in provide channels “primarily dedicated to sexually-
substituting itself for informed and empowered par- oriented programming” either to “fully scramble or
ents, its interest is not sufficiently compelling to otherwise fully block” those channels or to limit
justify this widespread restriction on speech. The their transmission to hours when children are un-
regulatory alternative of a publicized § 504, which likely to be viewing, set by administrative regula-
has the real possibility of promoting more open dis- tion as the time between 10 p.m. and 6 a.m. 47
closure and the choice of an effective blocking sys- U.S.C. § 561(a) (1994 ed., Supp. **1883 III); 47
tem, would provide parents the information needed CFR § 76.227 (1999). Even before enactment of the
to engage in active supervision. The Government statute, signal scrambling was already in use. Cable
has not shown that this alternative would be insuffi- operators used scrambling in the regular course of
cient to secure its objective, or that any overriding business, so that only paying customers had access
harm justifies its intervention. Although, under a to certain programs. Scrambling could be impre-
voluntary blocking regime, even with adequate no- cise, however; and either or both audio and visual
tice, some children will be exposed to signal bleed, portions of the scrambled programs might be heard
children will also be exposed under time channel- or seen, a phenomenon known as “signal bleed.”
ing, which does not eliminate signal bleed around The purpose of § 505 is to shield children from
the clock. The record is silent as to the comparative hearing or seeing images resulting from signal
effectiveness of the two alternatives. Pp. bleed.
1887-1893.
To comply with the statute, the majority of cable
30 F.Supp.2d 702, affirmed. operators adopted the second, or “time channeling,”
approach. The effect of the widespread adoption of
KENNEDY, J., delivered the opinion of the Court,
time channeling was to *807 eliminate altogether
in which STEVENS, SOUTER, THOMAS, and
the transmission of the targeted programming out-
GINSBURG, JJ., joined. STEVENS, J., post, p.
side the safe harbor period in affected cable service
1894, and THOMAS, J., post, p. 1894, filed concur-
areas. In other words, for two-thirds of the day no
ring opinions. SCALIA, J., filed a dissenting opin-
household in those service areas could receive the
ion, post, p. 1895. BREYER, J., filed a dissenting
programming, whether or not the household or the
opinion, in which REHNQUIST, C.J., and
viewer wanted to do so.
O'CONNOR and SCALIA, JJ., joined, post, p.
1898. Appellee Playboy Entertainment Group, Inc., chal-
James A. Feldman, Washington, DC, for appellants. lenged the statute as unnecessarily restrictive con-
tent-based legislation violative of the First Amend-
*806 Robert Corn-Revere, Washington, DC, for ap-

120 S.Ct. 1878 Page 7
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
ment. After a trial, a three-judge District Court con- have not paid to receive Playboy's channels may
cluded that a regime in which viewers could order happen across discernible images of a sexually ex-
signal blocking on a household-by-household basis plicit nature. How many viewers, how discernible
presented an effective, less restrictive alternative to the scene or sound, and how often this may occur
§ 505. 30 F.Supp.2d 702, 719 (D.Del.1998). Find- are at issue in this case.
ing no error in this conclusion, we affirm.
Section 505 was enacted to address the signal bleed
phenomenon. As noted, the statute and its imple-
I menting regulations require cable operators either
to scramble a sexually explicit channel in full or to
Playboy Entertainment Group owns and prepares
limit the channel's programming to the hours
programs for adult television networks, including
between 10 p.m. and 6 a.m. 47 U.S.C. § 561 (1994
Playboy Television and Spice. Playboy transmits its
ed., Supp. III); 47 CFR § 76.227 (1999). Section
programming to cable television operators, who re-
505 was added by floor amendment, without signi-
transmit it to their subscribers, either through
ficant debate, to the Telecommunications Act of
monthly subscriptions to premium channels or on a
1996(Act), a major legislative effort designed “to
so-called “pay-per-view” basis. Cable operators
reduce regulation and encourage ‘the rapid deploy-
transmit Playboy's signal, like other premium chan-
ment of new telecommunications**1884 technolo-
nel signals, in scrambled form. The operators then
gies.’ ” Reno v. American Civil Liberties Union,
provide paying subscribers with an “addressable
521 U.S. 844, 857, 117 S.Ct. 2329, 138 L.Ed.2d
converter,” a box placed on the home television set.
874 (1997) (quoting 110 Stat. 56). “The Act in-
The converter permits the viewer to see and hear
cludes seven Titles, six of which are the product of
the descrambled signal. It is conceded that almost
extensive committee hearings and the subject of
all of Playboy's programming consists of sexually
discussion in Reports prepared by Committees of
explicit material as defined by the statute.
the Senate and the House of Representatives.”
The statute was enacted because not all scrambling Reno, supra, at 858, 117 S.Ct. 2329. Section 505 is
technology is perfect. Analog cable television sys- found in Title V of the Act, which is itself known
tems may use either “RF” or “baseband” scram- as the Communications Decency Act of
bling systems, which may not prevent signal bleed, 1996(CDA). 110 Stat. 133. Section 505 was to be-
so discernible pictures may appear from time to come effective on March 9, 1996, 30 days after the
time on the scrambled screen. Furthermore, the Act was signed by the President. Note following 47
listener might hear the audio portion of the pro- U.S.C. § 561 (1994 ed., Supp. III).
gram.
*809 On March 7, 1996, Playboy obtained a tem-
*808 These imperfections are not inevitable. The porary restraining order (TRO) enjoining the en-
problem is that at present it appears not to be eco- forcement of § 505. 918 F.Supp. 813 (D.Del.1996),
nomical to convert simpler RF or baseband scram- and brought this suit in a three-judge District Court
bling systems to alternative scrambling technolo- pursuant to § 561 of the Act, 110 Stat. 142, note
gies on a systemwide scale. Digital technology may following 47 U.S.C. § 223 (1994 ed., Supp. III).
one day provide another solution, as it presents no Playboy sought a declaration that § 505 violates the
bleed problem at all. Indeed, digital systems are Constitution and an injunction prohibiting the law's
projected to become the technology of choice, enforcement. The District Court denied Playboy a
which would eliminate the signal bleed problem. preliminary injunction, 945 F.Supp. 772
Digital technology is not yet in widespread use, (D.Del.1996), and we summarily affirmed, 520
however. With imperfect scrambling, viewers who U.S. 1141, 117 S.Ct. 1309, 137 L.Ed.2d 473 (1997)

120 S.Ct. 1878 Page 8
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
. The TRO was lifted, and the Federal Communica- scribers the information that certain channels
tions Commission announced it would begin enfor- broadcast sexually-oriented programming; that
cing § 505 on May 18, 1997. In re Implementation signal bleed ... may appear; that children may
of Section 505 of the Telecommunications Act of view signal bleed without their parents' know-
1996, 12 FCC Rcd. 5212, 5214 (1997). ledge or permission; that channel blocking
devices ... are available free of charge ...; and that
When the statute became operative, most cable op- a request for a free device ... can be made by a
erators had “no practical choice but to curtail [the telephone call to the [operator].” Id., at 719.
targeted] programming during the [regulated] six-
teen hours or risk the penalties imposed ... if any The means of providing this notice could include
audio or video signal bleed occur[red] during “inserts in monthly billing statements, barker
[those] times.” 30 F.Supp.2d, at 711. The majority channels (preview channels of programming
of operators-“in one survey, 69%”-complied with § coming up on Pay-Per-**1885 View), and on-air
505 by time channeling the targeted programmers. advertisement on channels other than the one
Ibid. Since “30 to 50% of all adult programming is broadcasting the sexually explicit programming.”
viewed by households prior to 10 p.m.,” the result Ibid.
was a significant restriction of communication, with
a corresponding reduction in Playboy's revenues. The court added that this notice could be “conveyed
Ibid. on a regular basis, at reasonable intervals,” and
could include notice of changes in channel align-
In March 1998, the District Court held a full trial ments. Ibid.
and concluded that § 505 violates the First Amend-
ment. Id., at 702. The District Court observed that § The District Court concluded that § 504 so supple-
505 imposed a content-based restriction on speech. mented would be an effective, less restrictive al-
Id., at 714-715. It agreed that the interests the stat- ternative to § 505, and consequently declared § 505
ute advanced were compelling but concluded the unconstitutional and enjoined its enforcement. Id.,
Government might further those interests in less re- at 719-720. The court also required Playboy to in-
strictive ways. Id., at 717-720. One plausible, less sist on these notice provisions in its contracts with
restrictive alternative could be found in another cable operators. Ibid.
section of the Act: § 504, which requires a cable
The United States filed a direct appeal in this Court
operator, “[u]pon request by a cable service sub-
pursuant to § 561. The District Court thereafter dis-
scriber ... without charge, [to] fully *810 scramble
missed for *811 lack of jurisdiction two post-trial
or otherwise fully block” any channel the sub-
motions filed by the Government. App. to Juris.
scriber does not wish to receive. 110 Stat. 136, 47
Statement 91a-92a. We noted probable jurisdiction,
U.S.C. § 560 (1994 ed., Supp. III). As long as sub-
527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed.2d 769
scribers knew about this opportunity, the court
(1999), and now affirm.
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 II
content neutral and would be less restrictive of
Playboy's First Amendment rights. Ibid. Two essential points should be understood concern-
ing the speech at issue here. First, we shall assume
The court described what “adequate notice” would that many adults themselves would find the materi-
include, suggesting al highly offensive; and when we consider the fur-
ther circumstance that the material comes unwanted
“[operators] should communicate to their sub- into homes where children might see or hear it

120 S.Ct. 1878 Page 9
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
against parental wishes or consent, there are legit- pellee by name. See 141 Cong. Rec. 15587 (1995)
imate reasons for regulating it. Second, all parties (statement of Sen. Feinstein) (noting the statute
bring the case to us on the premise that Playboy's would apply to channels “such as the Playboy and
programming has First Amendment protection. As Spice channels”). Laws designed or intended to
this case has been litigated, it is not alleged to be suppress or restrict the expression of specific
obscene; adults have a constitutional right to view speakers contradict basic First Amendment prin-
it; the Government disclaims any interest in pre- ciples. Section 505 limited Playboy's market as a
venting children from seeing or hearing it with the penalty for its programming choice, though other
consent of their parents; and Playboy has concomit- channels capable of **1886 transmitting like mater-
ant rights under the First Amendment to transmit it. ial are altogether exempt.
These points are undisputed.
[3] The effect of the federal statute on the protected
[1] The speech in question is defined by its content; speech is now apparent. It is evident that the only
and the statute which seeks to restrict it is content reasonable way for a substantial number of cable
based. Section 505 applies only to channels primar- operators to comply with the letter of § 505 is to
ily dedicated to “sexually explicit adult program- time channel, which silences the protected speech
ming or other programming that is indecent.” The for two-thirds of the day in every home in a cable
statute is unconcerned with signal bleed from any service area, regardless of the presence or likely
other channels. See 945 F.Supp., at 785 (“[Section presence of children or of the wishes of the view-
505] does not apply when signal bleed occurs on ers. According to the District Court, “30 to 50% of
other premium channel networks, like HBO or the all adult programming is viewed by households pri-
Disney Channel”). The overriding justification for or to 10 p.m.,” when the safe-harbor period begins.
the regulation is concern for the effect of the sub- 30 F.Supp.2d, at 711. To prohibit this much speech
ject matter on young viewers. Section 505 is not “ is a significant restriction of communication
‘justified without reference to the content of the between speakers and willing adult listeners, com-
regulated speech.’ ” Ward v. Rock Against Racism, munication which enjoys First Amendment protec-
491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d tion. It is of no moment that the statute does not im-
661 (1989) (quoting Clark v. Community for Creat- pose a complete prohibition. The distinction
ive Non-Violence, 468 U.S. 288, 293, 104 S.Ct. between laws burdening and laws banning speech is
3065, 82 L.Ed.2d 221 (1984)). It “focuses only on but a matter of degree. The Government's content-
the content of the speech and the direct impact that based burdens must satisfy the same rigorous scru-
speech has on its listeners.” *812Boos v. Barry, 485 tiny as its content-based bans.
U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333
(1988) (opinion of O'CONNOR, J.). This is the es- [4] *813 Since § 505 is a content-based speech re-
sence of content-based regulation. striction, it can stand only if it satisfies strict scru-
tiny. Sable Communications of Cal., Inc. v. FCC,
[2] Not only does § 505 single out particular pro- 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93
gramming content for regulation, it also singles out (1989). If a statute regulates speech based on its
particular programmers. The speech in question content, it must be narrowly tailored to promote a
was not thought by Congress to be so harmful that compelling Government interest. Ibid. If a less re-
all channels were subject to restriction. Instead, the strictive alternative would serve the Government's
statutory disability applies only to channels purpose, the legislature must use that alternative.
“primarily dedicated to sexually-oriented program- Reno, 521 U.S., at 874, 117 S.Ct. 2329 (“[The
ming.” 47 U.S.C. § 561(a) (1994 ed., Supp. III). CDA's Internet indecency provisions'] burden on
One sponsor of the measure even identified ap- adult speech is unacceptable if less restrictive al-

120 S.Ct. 1878 Page 10
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
ternatives would be at least as effective in achiev- shielding children does not suffice to support a
ing the legitimate purpose that the statute was en- blanket ban if the protection can be **1887 accom-
acted to serve”); Sable Communications, supra, at plished by a less restrictive alternative.
126, 109 S.Ct. 2829 (“The Government may ... reg-
ulate the content of constitutionally protected In Sable Communications, for instance, the feasibil-
speech in order to promote a compelling interest if ity of a technological approach to controlling
it chooses the least restrictive means to further the minors' access to “dial-a-porn” messages required
articulated interest”). To do otherwise would be to invalidation of a complete statutory ban on the me-
restrict speech without an adequate justification, a dium. 492 U.S., at 130-131, 109 S.Ct. 2829. And,
course the First Amendment does not permit. while mentioned only in passing, the mere possibil-
ity that user-based Internet screening software
[5] Our precedents teach these principles. Where would “ ‘soon be widely available’ ” was relevant
the designed benefit of a content-based speech re- to our rejection of an overbroad restriction of inde-
striction is to shield the sensibilities of listeners, the cent cyberspeech. Reno, supra, at 876-877, 117
general rule is that the right of expression prevails, S.Ct. 2329. Compare Rowan v. Post Office Dept.,
even where no less restrictive alternative exists. We 397 U.S. 728, 729-730, 90 S.Ct. 1484, 25 L.Ed.2d
are expected to protect our own sensibilities 736 (1970) (upholding statute “whereby any house-
“simply by averting [our] eyes.” Cohen v. Califor- holder may insulate himself from advertisements
nia, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 that offer for sale ‘matter which the addressee in his
(1971); accord, Erznoznik v. Jacksonville, 422 U.S. sole discretion believes to be erotically arousing or
205, 210-211, 95 S.Ct. 2268, 45 L.Ed.2d 125 sexually provocative’ ” (quoting then 39 U.S.C. §
(1975). Here, of course, we consider images trans- 4009(a) (1964 ed., Supp. IV))), with Bolger v.
mitted to some homes where they are not wanted Youngs Drug Products Corp., 463 U.S. 60, 75, 103
and where parents often are not present to give im- S.Ct. 2875, 77 L.Ed.2d 469 (1983) (rejecting
mediate guidance. Cable television, like broadcast blanket ban on the mailing of unsolicited contra-
media, presents unique problems, which inform our ceptive advertisements). Compare also Ginsberg v.
assessment of the interests at stake, and which may New York, 390 U.S. 629, 631, 88 S.Ct. 1274, 20
justify restrictions that would be unacceptable in L.Ed.2d 195 (1968) (upholding state statute barring
other contexts. See Denver Area Educational Tele- the sale to minors of material defined as “obscene
communications Consortium, Inc. v. FCC, 518 U.S. on the basis of its appeal to them”), with Butler v.
727, 744, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) Michigan, 352 U.S. 380, 381, 77 S.Ct. 524, 1
(plurality opinion); id., at 804-805, 116 S.Ct. 2374 L.Ed.2d 412 (1957) (rejecting blanket ban of mater-
(KENNEDY, J., concurring in part, concurring in ial “ ‘tending to incite minors to violent or de-
judgment in part, and dissenting in part); *814FCC praved or immoral acts, manifestly tending to the
v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. corruption of the morals of youth’ ” (quoting then
3026, 57 L.Ed.2d 1073 (1978). No one suggests the Mich. Penal Code § 343)). Each of these cases
Government must be indifferent to unwanted, inde- arose in a different context- *815Sable Communica
cent speech that comes into the home without par- tions and Reno, for instance, also note the affirmat-
ental consent. The speech here, all agree, is protec- ive steps necessary to obtain access to indecent ma-
ted speech; and the question is what standard the terial via the media at issue-but they provide neces-
Government must meet in order to restrict it. As we sary instruction for complying with accepted First
consider a content-based regulation, the answer Amendment principles.
should be clear: The standard is strict scrutiny. This
case involves speech alone; and even where speech [6] Our zoning cases, on the other hand, are irrelev-
is indecent and enters the home, the objective of ant to the question here. Post, at 1899 (BREYER,

120 S.Ct. 1878 Page 11
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
J., dissenting) (citing Renton v. Playtime Theatres, disputes that § 504, which requires cable operators
Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 to block undesired channels at individual house-
(1986), and Young v. American Mini Theatres, Inc., holds upon request, is narrowly tailored to the Gov-
427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) ernment's goal of supporting parents who want
). We have made clear that the lesser scrutiny af- those channels blocked. The question is whether §
forded regulations targeting the secondary effects 504 can be effective.
of crime or declining property values has no applic-
ation to content-based regulations targeting the [8] When a plausible, less restrictive alternative is
primary effects of protected speech. Reno, supra, at offered to a content-based speech restriction, it is
867-868, 117 S.Ct. 2329; Boos, 485 U.S., at the Government's obligation to prove that the al-
320-321, 108 S.Ct. 1157. The statute now before us ternative will be ineffective to achieve its goals.
burdens speech because of its content; it must re- The Government has not met that burden here. In
ceive strict scrutiny. support of its position, the Government cites empir-
ical evidence showing that § 504, as promulgated
There is, moreover, a key difference between cable and implemented before trial, generated few re-
television and the broadcasting media, which is the quests for household-by-household blocking.
point on which this case turns: Cable systems have Between March 1996 and May 1997, while the
the capacity to block unwanted channels on a Government was enjoined from enforcing § 505, §
household-by-household basis. The option to block 504 remained in operation. A survey of cable oper-
reduces the likelihood, so concerning to the Court ators determined that fewer than 0.5% of cable sub-
in Pacifica, supra, at 744, 98 S.Ct. 3026, that tradi- scribers requested full blocking during that time.
tional First Amendment scrutiny would deprive the Id., at 712. The uncomfortable fact is that § 504
Government of all authority to address this sort of was the sole blocking regulation in effect for over a
problem. The corollary, of course, is that targeted year; and the public greeted it with a collective
blocking enables the Government to support parent- yawn.
al authority without affecting the First Amendment
interests of speakers and willing listeners-listeners The District Court was correct to direct its attention
for whom, if the speech is unpopular or indecent, to the import of this tepid response. Placing the bur-
the privacy of their own homes may be the optimal den of proof upon the Government, the District
place of receipt. Simply put, targeted blocking is Court examined whether § 504 was capable of
less restrictive than banning, and the Government serving as an effective, less restrictive means of
cannot ban speech if targeted blocking is a feasible reaching the Government's goals. Id., at 715,
and effective means of furthering its compelling in- 718-719. It concluded that § 504, if publicized in an
terests. This is not to say that the absence of an ef- adequate manner, could be. Id., at 719-720.
fective blocking mechanism will in all cases suffice
[9][10] The District Court employed the proper ap-
to support a law restricting the speech in question;
proach. When the Government restricts speech, the
but if a less restrictive means is available for the
Government bears the burden of proving the consti-
Government to achieve its goals, the Government
tutionality of its actions. Greater New Orleans
must use it.
Broadcasting Assn., Inc. v. United States, 527 U.S.
173, 183, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999)
*816 III (“[T]he Government bears *817 the burden of
identifying a substantial interest and justifying the
[7] The District Court concluded that a less restrict- challenged restriction”); Reno, 521 U.S., at 879,
ive alternative is available: **1888 § 504, with ad- 117 S.Ct. 2329 (“The breadth of this content-based
equate publicity. 30 F.Supp.2d, at 719-720. No one restriction of speech imposes an especially heavy

120 S.Ct. 1878 Page 12
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
burden on the Government to explain why a less re- fluenced by the philosophy that one idea is as good
strictive provision would not be as effective ...”); as any other, and that in art and literature objective
Edenfield v. Fane, 507 U.S. 761, 770-771, 113 standards of style, taste, decorum, beauty, and es-
S.Ct. 1792, 123 L.Ed.2d 543 (1993) (“[A] govern- thetics are deemed by the Constitution to be inap-
mental body seeking to sustain a restriction on propriate, indeed unattainable. Quite the opposite is
commercial speech must demonstrate that the true. The Constitution no more enforces a relativist-
harms it recites are real and that its restriction will ic philosophy or moral nihilism than it does any
in fact alleviate them to a material degree”); Board other point of view. The Constitution exists pre-
of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. cisely so that opinions and judgments, including es-
469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) thetic and moral judgments about art and literature,
(“[T]he State bears the burden of justifying its re- can be formed, tested, and expressed. What the
strictions ...”); Tinker v. Des Moines Independent Constitution says is that these judgments are for the
Community School Dist., 393 U.S. 503, 509, 89 individual to make, not for the Government to de-
S.Ct. 733, 21 L.Ed.2d 731 (1969) (“In order for the cree, even with the mandate or approval of a major-
State ... to justify prohibition of a particular expres- ity. Technology expands the capacity to choose;
sion of opinion, it must be able to show that its ac- and it denies the potential of this revolution if we
tion was caused by something more than a mere de- assume the Government is best positioned to make
sire to avoid the discomfort and unpleasantness that these choices for us.
always accompany an unpopular viewpoint”).
When the Government seeks to restrict speech It is rare that a regulation restricting speech because
based on its content, the usual presumption of con- of its content will ever be permissible. Indeed, were
stitutionality afforded congressional enactments is we to give the Government the benefit of the doubt
reversed. “Content-based regulations are pre- when it attempted to restrict speech, we would risk
sumptively invalid,” R.A.V. v. St. Paul, 505 U.S. leaving regulations in place that sought to shape our
377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), unique personalities or to silence dissenting ideas.
and the Government bears the burden to rebut that When First Amendment compliance is the point to
presumption. be proved, the risk of nonpersuasion-operative in
all trials-must rest with the Government, not with
[11] This is for good reason. “[T]he line between the citizen. Id., at 526, 78 S.Ct. 1332.
speech unconditionally guaranteed and speech
which may legitimately be regulated, suppressed, or With this burden in mind, the District Court ex-
punished is finely drawn.” Speiser v. Randall, 357 plored three explanations for the lack of individual
U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460 blocking requests. 30 F.Supp.2d, at 719. First, indi-
(1958). Error in marking that line exacts an ex- vidual blocking might not be an effective alternat-
traordinary cost. It is through speech that our con- ive, due to technological or other limitations.
victions and beliefs are influenced, expressed, and Second, although an adequately advertised blocking
tested. It is through speech that we bring those be- provision might have been effective, § 504 as writ-
liefs to bear on Government and on society. It is ten did not require sufficient notice to make it so.
through speech that our **1889 personalities are Third, the actual signal bleed problem might be far
formed and expressed. The citizen is entitled to less of a concern than the Government at first had
seek out or reject certain ideas or influences supposed. Ibid.
without Government interference or control.
*819 To sustain its statute, the Government was re-
*818 When a student first encounters our free quired to show that the first was the right answer.
speech jurisprudence, he or she might think it is in- According to the District Court, however, the first
and third possibilities were “equally consistent”

120 S.Ct. 1878 Page 13
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
with the record before it. Ibid. As for the second, instance, the local [cable operator] offered to, or
the record was “not clear” as to whether enough no- did in fact, rectify the situation for free (with the
tice had been issued to give § 504 a fighting exception of 1 individual), with varying degrees
chance. Ibid. The case, then, was at best a draw. of rapidity. Included in the complaints was the
Unless the District Court's findings are clearly erro- additional concern that other parents might not be
neous, the tie goes to free expression. aware that their children are exposed to this prob-
lem. In addition, the Government presented evid-
The District Court began with the problem of signal ence of a child exposed to signal bleed at a
bleed itself, concluding “the Government has not friend's house. Cindy Omlin set the lockout fea-
convinced us that [signal bleed] is a pervasive prob- ture on her remote control to prevent her child
lem.” Id., at 708-709, 718. The District Court's from tuning to adult channels, but her eleven year
thorough discussion exposes a central weakness in old son was nevertheless exposed to signal bleed
the Government's proof: There is little hard evid- when he attended a slumber party at a friend's
ence of how widespread or how serious the problem house.
of signal bleed is. Indeed, there is no proof as to
how likely any child is to view a discernible expli- “The Government has presented evidence of
cit image, and no proof of the duration of the bleed only a handful of isolated incidents over the 16
or the quality of the pictures or sound. To say that years since 1982 when Playboy started broadcast-
millions of children are subject to a risk of viewing ing. The Government has not presented any sur-
signal bleed is one thing; to avoid articulating the vey-type evidence on the magnitude of the
true nature and extent of the risk is quite another. ‘problem.’ ” Id., at 709 (footnote and record cita-
Under § 505, sanctionable signal bleed can include tions omitted).
instances as fleeting as an image appearing on a
screen for just a few seconds. The First Amendment Spurred by the District Court's express request for
requires a more careful assessment and characteriz- more specific evidence of the problem, see 945
ation of an evil in order to justify a regulation as F.Supp., at 779, n. 16, the Government also presen-
sweeping as this. Although the parties have taken ted an expert's spreadsheet estimate that 39 million
the additional step of lodging with the Court an as- homes with 29.5 million children had the potential
sortment of videotapes, some of which show quite to be exposed to signal bleed, 30 F.Supp.2d, at
explicit bleeding and some of which show televi- 708-709. The Government made no attempt to con-
sion static or snow, there is no attempt at explana- firm the accuracy of its estimate through surveys or
tion or context; there is no discussion, for instance, other field tests, however. Accordingly, the District
of the extent to which any particular**1890 tape is Court discounted the figures and made this finding:
representative of what appears on screens nation- “[T]he Government presented no evidence on the
wide. number of households actually exposed to signal
bleed and thus has not quantified the actual extent
The Government relied at trial on anecdotal evid- of the problem of signal bleed.” *821Id., at 709.
ence to support its regulation, which the District The finding is not clearly erroneous; indeed it is all
Court summarized as follows: but required.
*820 “The Government presented evidence of Once § 505 went into effect, of course, a significant
two city councilors, eighteen individuals, one percentage of cable operators felt it necessary to
United States Senator, and the officials of one time channel their sexually explicit programmers.
city who complained either to their [cable operat- Id., at 711, and n. 14. This is an indication that
or], to their local Congressman, or to the FCC scrambling technology is not yet perfected. That is
about viewing signal bleed on television. In each not to say, however, that scrambling is completely

120 S.Ct. 1878 Page 14
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
ineffective. Different cable systems use different television images in fact reached into the millions
scrambling systems, which vary in their dependab- we, like the District Court, would have expected to
ility. “The severity of the problem varies from time be directed to more than a handful of complaints.
to time and place to place, depending on the weath-
er, the quality of the equipment, its installation, and No support for the restriction can be found in the
maintenance.” Id., at 708. At even the good end of near barren legislative record relevant to this provi-
the spectrum a system might bleed to an extent suf- sion. Section 505 was added to the Act by floor
ficient to trigger the time-channeling requirement amendment, accompanied by only brief statements,
for a cautious cable operator. (The statute requires and without committee hearing or debate. See 141
the signal to be “ fully block[ed].” 47 U.S.C. § Cong. Rec. 15586-15589 (1995). One of the meas-
561(a) (1994 ed., Supp. III) (emphasis added).) A ure's sponsors did indicate she considered time
rational cable operator, faced with the possibility of channeling to be superior to voluntary blocking,
sanctions for intermittent bleeding, could well which “put[s] the burden of action on the sub-
choose to time channel even if the bleeding is too scriber, not the cable company.” Id., at 15587
momentary to pose any concern to most house- (statement of Sen. Feinstein). This sole conclusory
holds. To affirm that the Government failed to statement, however, tells little about the relative ef-
prove the existence of a problem, while at the same ficacy of voluntary blocking versus time channel-
time observing that the statute imposes a severe ing, other than offering the unhelpful, self-evident
burden on speech, is consistent with the analysis generality that voluntary measures require volun-
our cases require. Here, there is no probative evid- tary action. The Court has declined to rely on simil-
ence in the record which differentiates among the ar evidence before. See Sable Communications, 492
extent of bleed at individual households and no U.S., at 129-130, 109 S.Ct. 2829 (“[A]side from
evidence which otherwise quantifies the signal conclusory statements during the debates by pro-
bleed problem. ponents of the bill, ... the congressional record
presented to us contains no evidence as to how ef-
In addition, market-based solutions such as pro- fective or ineffective the ... regulations were or
grammable televisions, VCR's, and mapping sys- might prove to be” (footnote omitted)); Reno, 521
tems (which display a blue screen when tuned to a U.S., at 858, and n. 24, 875-876, n. 41, 117 S.Ct.
scrambled signal) may eliminate signal bleed at the 2329 (same). This is not to suggest that a
consumer end of the cable. 30 F.Supp.2d, at 708. 10,000-page record must be compiled in every case
**1891 Playboy made the point at trial that the or that the Government must delay in acting to ad-
Government's estimate failed to account for these dress a real problem; but the Government must
factors. Id., at 708-709. Without some sort of field present more than anecdote and supposition. The
survey, it is impossible to know how widespread question is whether an actual problem has been
the problem in fact is, and the only indicator in the proved in this case. We agree that *823 the Govern-
record is a handful of complaints. Cf. *822 Turner ment has failed to establish a pervasive, nationwide
Broadcasting System, Inc. v. FCC, 520 U.S. 180, problem justifying its nationwide daytime speech
187, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) ban.
(reviewing “ ‘a record of tens of thousands of
pages' of evidence” developed through “three years Nor did the District Court err in its second conclu-
of pre-enactment hearings, ... as well as additional sion. The Government also failed to prove § 504
expert submissions, sworn declarations and testi- with adequate notice would be an ineffective altern-
mony, and industry documents” in support of com- ative to § 505. Once again, the District Court in-
plex must-carry provisions). If the number of chil- vited the Government to produce its proof. See 945
dren transfixed by even flickering pornographic F.Supp., at 781 (“If the § 504 blocking option is not

120 S.Ct. 1878 Page 15
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
being promoted, it cannot become a meaningful al- F.Supp.2d, at 713. This conclusion rests on the as-
ternative to the provisions of § 505. At the time of sumption that a sufficient percentage of households,
the permanent injunction hearing, further evidence informed of the potential for signal bleed, would
of the actual and predicted impact and efficacy of § consider it enough of a problem to order blocking
504 would be helpful to us”). Once again, the Gov- devices-an assumption for which there is no support
ernment fell short. See 30 F.Supp.2d, at 719 (“[The in the record. Id., at 719. It should be noted, fur-
Government's argument that § 504 is ineffective] is thermore, that Playboy is willing to incur the costs
premised on adequate notice to subscribers. It is not of an effective § 504. One might infer that Playboy
clear, however, from the record that notices of the believes an advertised § 504 will be ineffective for
provisions of § 504 have been adequate”). There is its object, or one might infer the company believes
no evidence that a well-promoted voluntary block- the signal bleed problem is not widespread. In the
ing provision would not be capable at least of in- absence of proof, it is not for the Court to assume
forming parents about signal bleed (if they are not the former.
yet aware of it) and about their rights to have the
bleed blocked (if they consider it a problem and It is no response that voluntary blocking requires a
have not yet controlled it themselves). consumer to take action, or may be inconvenient, or
may not go perfectly every time. A court should not
[12] The Government finds at least two problems assume a plausible, less restrictive alternative
with the conclusion of the three-judge District would be ineffective; and a court should not pre-
Court. First, the Government takes issue with the sume parents, given full information, will fail to
District Court's reliance, without proof, on a act. If unresponsive operators are a concern,
“hypothetical, enhanced version of Section 504.” moreover, a notice statute could give cable operat-
Brief for Appellants 32. It was not the District ors ample incentive, through fines or other penalties
Court's obligation, however, to predict the extent to for noncompliance, to respond to blocking requests
which an improved notice scheme would improve § in prompt and efficient fashion.
504. It was for the Government, presented with a
plausible, less **1892 restrictive alternative, to Having adduced no evidence in the District Court
prove the alternative to be ineffective, and § 505 to showing that an adequately advertised § 504 would
be the least restrictive available means. Indeed, to not be effective to aid desirous parents in keeping
the extent the District Court erred, it was only in at- signal bleed out of their own households, the Gov-
tempting to implement the less restrictive alternat- ernment can now cite nothing in the record to sup-
ive through judicial decree by requiring Playboy to port the point. The Government instead takes quite
provide for expanded notice in its cable service a different approach. After only an offhand sugges-
contracts. The appropriate remedy was not to repair tion that the success of a well-communicated § 504
the statute, it was to enjoin the speech restriction. is “highly *825 unlikely,” the Government sets the
*824 Given the existence of a less restrictive point aside, arguing instead that society's independ-
means, if the Legislature wished to improve its stat- ent interests will be unserved if parents fail to act
ute, perhaps in the process giving careful considera- on that information. Brief for Appellants 32-33
tion to other alternatives, it then could do so. (“[U]nder ... an enhanced version of Section 504,
parents who had strong feelings about the matter
The Government also contends a publicized § 504 could see to it that their children did not view sig-
will be just as restrictive as § 505, on the theory nal bleed-at least in their own homes”); id., at 33
that the cost of installing blocking devices will out- (“Even an enhanced version of Section 504 would
strip the revenues from distributing Playboy's pro- succeed in blocking signal bleed only if, and after,
gramming and lead to its cancellation. See 30 parents affirmatively decided to avail themselves of

120 S.Ct. 1878 Page 16
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
the means offered them to do so. There would cer- tice, some children will be exposed to signal bleed;
tainly be parents-perhaps a large number of parents- and we need not discount the possibility that a
who out of inertia, indifference, or distraction, graphic image could have a negative impact on a
simply would take no action to block signal bleed, young child. It must be remembered, however, that
even if fully informed of the problem and even if children will be exposed to signal bleed under time
offered a relatively easy solution”); Reply Brief for channeling as well. Time channeling, unlike block-
Appellants 12 (“[Society's] interest would of course ing, does not eliminate signal bleed around the
be served in instances ... in which parents request clock. Just as adolescents may be unsupervised out-
blocking under an enhanced Section 504. But in side of their own households, it is hardly unknown
cases in which parents fail to make use of an enfor them to be unsupervised in front of the televi-
hanced Section 504 procedure out of distraction, in- sion set after 10 p.m. The record is silent as to the
ertia, or indifference, Section 505 would be the comparative effectiveness of the two alternatives.
only means to protect society's independent in-
terest”).
***
Even upon the assumption that the Government has
Basic speech principles are at stake in this case.
an interest in substituting itself for informed and
When the purpose and design of a statute is to regu-
empowered parents, its interest is not sufficiently
late speech by reason of its content, special consid-
compelling to justify this widespread restriction on
eration or latitude is not accorded to the Govern-
speech. The Government's argument stems from the
ment merely because the law can somehow be de-
idea that parents do not know their children are
scribed as a burden rather than outright suppres-
viewing the material**1893 on a scale or frequency
sion. We cannot be influenced, moreover, by the
to cause concern, or if so, that parents do not want
perception that the regulation in question is not a
to take affirmative steps to block it and their de-
major one because the speech is not very important.
cisions are to be superseded. The assumptions have
The history of the law of free expression is one of
not been established; and in any event the assump-
vindication in cases involving speech that many cit-
tions apply only in a regime where the option of
izens may find shabby, offensive, or even ugly. It
blocking has not been explained. The whole point
follows that all content-based restrictions on speech
of a publicized § 504 would be to advise parents
must give us more than a moment's pause. If televi-
that indecent material may be shown and to afford
sion broadcasts can expose children to the real risk
them an opportunity to block it at all times, even
of harmful exposure to indecent materials, even in
when they are not at home and even after 10 p.m.
their own home and without parental consent, there
Time channeling does not offer this assistance. The
is a problem the *827 Government can address. It
regulatory alternative of a publicized*826 § 504,
must do so, however, in a way consistent with First
which has the real possibility of promoting more
Amendment principles. Here the Government has
open disclosure and the choice of an effective
not met the burden the First Amendment imposes.
blocking system, would provide parents the inform-
ation needed to engage in active supervision. The The Government has failed to show that § 505 is
Government has not shown that this alternative, a the least restrictive means for addressing a real
regime of added communication and support, would problem; and the District Court did not err in hold-
be insufficient to secure its objective, or that any ing the statute violative of the First Amendment. In
overriding harm justifies its intervention. light of our ruling, it is unnecessary to address the
second question presented: whether the District
There can be little doubt, of course, that under a
Court was divested of jurisdiction to consider the
voluntary blocking regime, even with adequate no-
Government's postjudgment motions after the Gov-

120 S.Ct. 1878 Page 17
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
ernment filed a notice of appeal in this Court. The “Upon request by a cable service subscriber, a
judgment of the District Court is affirmed. cable operator shall, without charge, fully
scramble or otherwise fully block the audio and
It is so ordered. video programming of each channel carrying
such programming so that one not a subscriber
APPENDIX TO OPINION OF THE COURT does not receive it.
Section 505 of the Telecommunications Act of “(b) ‘Scramble’ defined

1996, Pub.L. 104-104, 110 Stat. 136, 47 U.S.C. §
“As used in this section, the term ‘scramble’
561 (1994 ed., Supp. III), provides in relevant part:
means to rearrange the content of the signal of
“(a) Requirement the programming so that the programming cannot
be viewed or heard in an understandable man-
“In providing sexually explicit adult program- ner.”
ming or other programming that is indecent on
any channel of its service primarily dedicated to Justice STEVENS, concurring.
sexually-oriented programming, a multichannel Because Justice SCALIA has advanced an argu-
video programming distributor shall fully ment that the parties have not addressed, a brief re-
scramble or otherwise fully block the **1894 sponse is in order. Relying on Ginzburg v. United
video and audio portion of such channel so that States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31
one not a subscriber to such channel or program- (1966), Justice SCALIA would treat programs
ming does not receive it. whose content is, he assumes, protected by the First
Amendment as though they were obscene because
“(b) Implementation of the way they are advertised. The four separate
dissenting opinions in Ginzburg, authored by
“Until a multichannel video programming dis- Justices Black, Harlan, Douglas, and Stewart,
tributor complies with the requirement set forth amply demonstrated the untenable character of the
in subsection (a) of this section, the distributor Ginzburg decision when it was rendered. The Gin-
shall limit the access of children to the program- zburg theory of obscenity is a legal fiction premised
ming referred to in that subsection by not provid- upon a logical bait and switch; advertising*829 a
ing such programming during the hours of the bareheaded dancer as “topless” might be deceptive,
day (as determined by the Commission) *828 but it would not make her performance obscene.
when a significant number of children are likely
to view it. As I explained in my dissent in Splawn v. Califor-
nia, 431 U.S. 595, 602, 97 S.Ct. 1987, 52 L.Ed.2d
“(c) ‘Scramble’ defined 606 (1977), Ginzburg was decided before the Court
extended First Amendment protection to commer-
“As used in this section, the term ‘scramble’
cial speech, Virginia Bd. of Pharmacy v. Virginia
means to rearrange the content of the signal of
Citizens Consumer Council, Inc., 425 U.S. 748, 96
the programming so that the programming cannot
S.Ct. 1817, 48 L.Ed.2d 346 (1976). Justice
be viewed or heard in an understandable man-
SCALIA's proposal is thus not only anachronistic,
ner.”
it also overlooks a key premise upon which our
Section 504 of the Telecommunications Act of commercial speech cases are based. The First
1996, Pub.L. 104-104, 110 Stat. 136, 47 U.S.C. § Amendment assumes that, as a general matter,
560 (1994 ed., Supp. III), provides in relevant part: “information is not in itself harmful, that people
“(a) Subscriber request will perceive their own best interests if only they

120 S.Ct. 1878 Page 18
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
are well enough informed, and that the best means scrambled programming because it is diffi-
to that end is to open the channels of communica- cult to dispute that signal bleed “lacks seri-
tion rather than to close them.” Id., at 770, 96 S.Ct. ous literary, artistic, political, or scientific
1817. The very fact that the programs marketed by value.” Miller v. California, 413 U.S. 15,
Playboy are offensive to many viewers provides a 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
justification for protecting, not penalizing, truthful
statements about their content. However, as the Court points out, this case has been
Justice THOMAS, concurring. litigated on the assumption that the programming at
It would seem to me that, with respect to at least issue is not obscene, but merely indecent. We have
some of the cable programming affected by § 505 no factual finding that any of the materials at issue
of the Telecommunications Act of 1996, the Gov- are, in fact, obscene. Indeed, the District Court de-
ernment has ample constitutional and statutory au- scribed the materials as indecent but not obscene.
thority to prohibit its broadcast entirely. A govern- 945 F.Supp. 772, 774, n. 4 (D.Del.1996). The Gov-
mental restriction on the distribution of obscene ernment does not challenge that characterization in
materials receives no First Amendment scrutiny. this Court, Tr. of Oral Arg. 9-10, but instead asks
**1895Roth v. United States, 354 U.S. 476, 485, 77 this Court to ratify the statute on the assumption
S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Though perhaps that this is protected speech. I am unwilling, in the
not all of the programming at issue in the case is absence of factual findings or advocacy of the posi-
obscene as this Court defined the term in Miller v. tion, to rely on the view that some of the relevant
California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 programming is obscene.
L.Ed.2d 419 (1973), one could fairly conclude that,
What remains then is the assumption that the pro-
under the standards applicable in many communit-
gramming restricted by § 505 is not obscene, but
ies, some of the programming meets the Miller test.
merely indecent. The Government, having declined
If this is so, the Government is empowered by stat-
to defend the statute as a regulation of obscenity,
ute to sanction these broadcasts with criminal pen-
now asks us to dilute our stringent First Amend-
alties. See 47 U.S.C. § 559 (1994 ed., Supp. III)
ment standards to uphold § 505 as a proper regula-
(“Whoever transmits over any cable system any
tion of protected (rather than unprotected) speech.
matter which is obscene or otherwise unprotected
See Brief for Appellants 18-29 (arguing that tradi-
by the Constitution*830 of the United States shall
tional strict scrutiny does not apply). I am unwilling
be fined under title 18 or imprisoned not more than
FN* to corrupt the First Amendment to reach this result.
2 years, or both”).
The “starch” in our constitutional standards cannot
FN* I am referring, here, to unscrambled be sacrificed to accommodate the enforcement
programming on the Playboy and Spice choices of the Government. See Denver Area Edu-
channels, examples of which were lodged cational Telecommunications Consortium, Inc. v.
with the Court. The Government also FCC, 518 U.S. 727, 774, 116 S.Ct. 2374, 135
lodged videotapes containing signal bleed L.Ed.2d 888 (1996) (SOUTER, J., concurring)
from these channels. I assume that if the (“Reviewing *831 speech regulations under fairly
unscrambled programming on these chan- strict categorical rules keeps the starch in the stand-
nels is obscene, any scrambled but discern- ards for those moments when the daily politics cries
ible images from the programs would be loudest for limiting what may be said”). Applying
obscene as well. In fact, some of the ex- the First Amendment's exacting standards, the
amples of signal bleed contained in the re- Court has correctly determined that § 505 cannot be
cord may fall within our definition of ob- upheld on the theory argued by the Government.
scenity more easily than would the un- Accordingly, I join the opinion of the Court.

120 S.Ct. 1878 Page 19
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
Justice SCALIA, dissenting. materials are obscene”). This is so whether or not

I agree with the principal dissent in this case that § the products in which the business traffics inde-
505 of the Telecommunications Act of 1996, Pub.L. pendently meet the high hurdle we have established
104-104, 110 Stat. 136, 47 U.S.C. § 561 (1994 ed., for delineating the obscene, viz., that they contain
Supp. III), is supported by a compelling state in- no “serious literary, artistic, political, or scientific
terest and is narrowly tailored. I write separately to value.” Miller, supra, at 24, 93 S.Ct. 2607. See
express my view that § 505 can be upheld in sim- Ginzburg, 383 U.S., at 471, 86 S.Ct. 942. We are
pler fashion: by finding that it regulates the busi- more permissive of government regulation in these
ness of obscenity. circumstances because it is clear from the context
in which exchanges between such businesses and
To be sure, § 505 and the Federal Communications their customers occur that neither the merchant nor
Commission's implementing regulation, see 47 CFR the buyer is interested in the work's literary, artistic,
§ 76.227 (1999), purport to capture programming political, or scientific value. “The deliberate repres-
that is indecent rather than merely that which is ob- entation of petitioner's publications as erotically
scene. And I will assume for purposes of this dis- arousing ... stimulate[s] the reader to accept them as
cussion (though it is a highly fanciful assumption) prurient; he looks for titillation, not for saving in-
that none of the **1896 transmissions at issue inde- tellectual content.” Id., at 470, 86 S.Ct. 942. Thus, a
pendently crosses the boundary we have established business that “(1) offer [s] ... hardcore sexual ma-
for obscenity, see Miller v. California, 413 U.S. 15, terial, (2) as a constant and intentional objective of
24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), so that [its] business, [and] (3) seek[s] to promote it as
the individual programs themselves would enjoy such” finds no sanctuary in the First Amendment.
First Amendment protection. In my view, however, FW/PBS, supra, at 261, 110 S.Ct. 596 (SCALIA J.,
that assumption does not put an end to the inquiry. concurring in part and dissenting in part).
We have recognized that commercial entities which Section 505 regulates just this sort of business. Its
engage in “the sordid business of pandering” by coverage is limited to programming that “describes
“deliberately emphasiz[ing] the sexually provocat- or depicts sexual or excretory activities or organs in
ive aspects of [their nonobscene products], in order a patently offensive manner as measured by con-
to catch the salaciously disposed,” engage in consti- temporary community standards [for cable televi-
tutionally unprotected behavior. Ginzburg v. United sion].” 47 CFR § 76.227(d) (1999) (emphasis ad-
States, 383 U.S. 463, 467, 472, 86 S.Ct. 942, 16 ded). It furthermore applies only to those channels
L.Ed.2d 31 (1966); see also FW/PBS, Inc. v. Dal- that are “ primarily dedicated to sexually-oriented
las, 493 U.S. 215, 257-258, 110 S.Ct. 596, 107 FN1
programming.” § 505(a) (emphasis added). It
L.Ed.2d 603 (1990) (SCALIA, J., concurring in part is conceivable, I suppose, that a channel which is
and dissenting in part); Pinkus v. United States, 436 primarily dedicated to sex *833 might not hold it-
U.S. 293, 303-304, 98 S.Ct. 1808, 56 L.Ed.2d 293 self forth as primarily dedicated to sex-in which
(1978); *832Splawn v. California, 431 U.S. 595, case its productions which contain “serious literary,
597-599, 97 S.Ct. 1987, 52 L.Ed.2d 606 (1977); artistic, political, or scientific value” (if any) would
Hamling v. United States, 418 U.S. 87, 130, 94 be as entitled to First Amendment protection as the
S.Ct. 2887, 41 L.Ed.2d 590 (1974). Cf. Jacobellis statuary rooms of the National Gallery. But in the
v. Ohio, 378 U.S. 184, 201, 84 S.Ct. 1676, 12 competitive world of cable programming, the pos-
L.Ed.2d 793 (1964) (Warren, C. J., dissenting) (“In sibility that a channel devoted to sex would not ad-
my opinion, the use to which various materials are vertise itself as such is sufficiently remote, and the
put-not just the words and pictures themselves-must number of such channels sufficiently small (if not
be considered in determining whether or not the indeed nonexistent), as not to render the provision

120 S.Ct. 1878 Page 20
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
FN2
substantially overbroad. appeal. Commercial motive or not, the “
‘[c]ircumstances of ... dissemination are
FN1. Congress's attempt to limit the reach relevant to determining whether [the] so-
of § 505 is therefore, contrary to the cial importance claimed for [the] materi-
Court's contention, see ante, at 1885-1886, al [is] ... pretense or reality.’ ” Splawn,
a virtue rather than a vice. supra, at 598, 97 S.Ct. 1987 (quoting
jury instruction approved). Perhaps this
FN2. Justice STEVENS misapprehends in
is why the Court in Splawn did not ac-
several respects the nature of the test I
cept Justice STEVENS's claim of incom-
would apply. First, he mistakenly believes
patibility.
that the nature of the advertising controls
the obscenity analysis, regardless of the **1897 Playboy itself illustrates the type of busi-
nature of the material being advertised. I ness § 505 is designed to reach. Playboy provides,
entirely agree with him that “advertising a through its networks-Playboy Television, AdulTVi-
bareheaded dancer as ‘topless' might be sion, Adam & Eve, and Spice- *834 “virtually
deceptive, but it would not make her per- 100% sexually explicit adult programming.” 30
formance obscene.” Ante, at 1894 F.Supp.2d 702, 707 (D.Del.1998). For example, on
(concurring opinion). I believe, however, its Spice network, Playboy describes its own pro-
that if the material is “patently offensive” gramming as depicting such activities as “female
and it is being advertised as such, we have masturbation/external,” “girl/girl sex,” and “oral
little reason to think it is being proffered sex/cunnilingus.” 1 Record, Exh. 73, p.
for its socially redeeming value. TWC00132. As one would expect, given this con-
tent, Playboy advertises accordingly, with calls to
Justice STEVENS's second misappre-
“Enjoy the sexiest, hottest adult movies in the pri-
hension flows from the first: He sees the
vacy of your own home.” 6 id., Exh. 136, at
test I would apply as incompatible with
2P009732. An example of the promotion for a par-
the Court's commercial-speech jurispru-
ticular movie is as follows: “Little miss country
dence. See ante, at 1894 (concurring
girls are aching for a quick roll in the hay! Watch
opinion); see also Splawn v. California,
southern hospitality pull out all the stops as these
431 U.S. 595, 603, n. 2, 97 S.Ct. 1987,
ravin' nymphos tear down the barn and light up the
52 L.Ed.2d 606 (1977) (STEVENS, J.,
big country sky.” 7 id., Exh. 226, at 2P009187. One
dissenting) (“ Ginzburg cannot survive [
may doubt whether-or marvel that-this sort of em-
Virginia Bd. of Pharmacy v. Virginia
barrassingly juvenile promotion really attracts what
Citizens Consumer Council, Inc., 425
Playboy assures us is an “adult” audience. But it is
U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 FN3
certainly marketing sex.
(1976) ]”). There is no such conflict. Al-
though the Ginzburg test, like most ob- FN3. Both the Court, see ante, at 1885 and
scenity tests, has ordinarily been applied Justice THOMAS, see ante, at 1895
in a commercial context (most purveyors (concurring opinion), find great import-
of obscenity are in the business for the ance in the fact that “this case has been lit-
money), its logic is not restricted to that igated on the assumption that the program-
context. The test applies equally to the ming at issue is not obscene, but merely in-
improbable case in which a collector of decent,” see ibid. (emphasis deleted). But
indecent materials wishes to give them as I noted in FW/PBS, Inc. v. Dallas, 493
away, and takes out a classified ad in the U.S. 215, 262-263, 110 S.Ct. 596, 107
local newspaper touting their salacious

120 S.Ct. 1878 Page 21
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
L.Ed.2d 603 (1990) (opinion concurring in identifying the panderer to sex. It is, however, not a
part and dissenting in part), we have not al- course compelled by the Constitution. Since the
lowed the parties' litigating positions to Government is entirely free to block these transmis-
place limits upon our development of ob- sions, it may certainly take the less drastic step of
scenity law. See, e.g., Miller v. California, dictating how, and during what times, they may oc-
413 U.S. 15, 24-25, 93 S.Ct. 2607, 37 cur.
L.Ed.2d 419 (1973) (abandoning “utterly
without redeeming social value” test sua Justice BREYER, with whom THE CHIEF
sponte ); Ginzburg v. United States, 383 JUSTICE, Justice O'CONNOR, and Justice
U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 SCALIA join, dissenting.
(1966) (adopting pandering theory unar-
This case involves the application, not the elucida-
gued by the Government); Mishkin v. New
tion, of First Amendment principles. We apply es-
York, 383 U.S. 502, 86 S.Ct. 958, 16
tablished First Amendment law to a statute that fo-
L.Ed.2d 56 (1966) (upholding convictions
cuses upon the broadcast of “sexually explicit adult
on theory that obscenity could be defined
programming” on AdulTVision, Adam & Eve,
by looking to the intent of the disseminat-
Spice, and Playboy cable channels. These channels
or, despite respondent's express disavowal
are, as the statute requires, “primarily dedicated to
of that theory). As for Justice THOMAS's
sexually-oriented programming.” Telecommunica-
concern that there has been no factual find-
tions Act of 1996, Pub.L. 104-104, § 505(a), 110
ing of obscenity in this case, see ante, at
Stat. 136, 47 U.S.C. § 561(a) (1994 ed., Supp. III).
1895 (concurring opinion): This is not an
Section 505 prohibits cable operators from sending
as-applied challenge, in which the issue is
these adult channels into the homes of viewers who
whether a particular course of conduct con-
do not request them. In practice, it requires a signi-
stitutes obscenity; it is a facial challenge,
ficant number of cable operators either to upgrade
in which the issue is whether the terms of
their scrambling technology or to avoid broadcast-
this statute address obscenity. That is not
ing these channels during daylight and evening
for the factfinder below, but for this Court.
hours (6 a.m. to 10 p.m.). We must decide whether
Thus, while I agree with Justice BREYER's child- the First Amendment permits Congress to enact this
protection analysis, it leaves me with the same feel- statute.
ing of *835 true-but-inadequate as the conclusion
*836 The basic, applicable First Amendment prin-
that Al Capone did not accurately report his in-
ciples are not at issue. The Court must examine the
come. It is not only children who can be protected
statute before us with great care to determine
from occasional uninvited exposure to what ap-
whether its speech-related restrictions are justified
pellee calls “adult-oriented programming”; we can
by a “compelling interest,” namely, an interest in
all be. Section 505 covers only businesses that en-
limiting children's access to sexually explicit mater-
gage in the “commercial exploitation of erotica
ial. In doing so, it recognizes that the Legislature
solely for the sake of their prurient appeal,” **1898
must respect adults' viewing freedom by “narrowly
Ginzburg, 383 U.S., at 466, 86 S.Ct. 942-which, as
tailoring” the statute so that it restricts no more
Playboy's own advertisements make plain, is what
speech than necessary, and choosing instead any al-
“adult” programming is all about. In most contexts,
ternative that would further the compelling interest
contemporary American society has chosen to per-
in a “less restrictive” but “at least as effective”
mit such commercial exploitation. That may be a
way. See ante, at 1886; Reno v. American Civil
wise democratic choice, if only because of the diffi-
Liberties Union, 521 U.S. 844, 874, 117 S.Ct. 2329,
culty in many contexts (though not this one) of
138 L.Ed.2d 874 (1997).

120 S.Ct. 1878 Page 22
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
Applying these principles, the majority invalidates The statute is carefully tailored to respect viewer
§ 505 for two reasons. It finds that (1) the preferences. It regulates transmissions by creating
“Government has failed to establish a pervasive, two “default rules” applicable unless the subscriber
nationwide problem justifying its nationwide day- decides otherwise. Section 504 requires a cable op-
time speech ban,” ante, at 1891, and (2) the erator to “fully scramble” any channel (whether or
“Government ... failed to prove” the “ineffective not it broadcasts adult programming) if a subscriber
[ness]” of an alternative, namely, notified viewers asks not to receive it. Section 505 requires a cable
requesting that the broadcaster of sexually explicit operator to “fully scramble” every adult channel
material stop sending it, ante, at 1891. In my view, unless a subscriber asks to receive it. Taken togeth-
the record supports neither reason. er, the two provisions create a scheme that permits
subscribers to choose to see what they want. But
each law creates a different “default” assumption
I
about silent subscribers. Section 504 assumes a si-
At the outset, I would describe the statutory scheme lent subscriber wants to see the ordinary
somewhat differently than does the majority. I (non-adult) channels that the cable operator in-
would emphasize three background points. First, cludes in the paid-for bundle sent into the home.
the statutory scheme reflects more than a congres- Section 505 assumes that a silent subscriber does
sional effort to control incomplete scrambling. Pre- not want to receive adult channels. Consequently, a
viously, federal law had left cable operators free to subscriber wishing to view an adult channel must
decide whether, when, and how to transmit adult “opt in,” and specifically request that channel. See
channels. Most channel operators on their own had § 505. A subscriber wishing not to view any other
decided not to send adult channels into a sub- channel (sent into the home) must “opt out.” See §
scriber's home except on request. But the operators 504.
then implemented that decision with inexpensive
The scheme addresses signal bleed but only indir-
technology. Through signal “bleeding,” the scram-
ectly. From the statute's perspective signal
bling technology (either inadvertently or by way of
“bleeding”-i.e., a failure to fully “rearrange the
enticement) allowed nonsubscribers to see and hear
content of the signal ... so that the programming
what was going on. That is why Congress decided
cannot be viewed or heard in an understandable
to act.
*838 manner,” § 504(c)-amounts to transmission
*837 In 1995, Senator Dianne Feinstein, the present into a home. Hence “bleeding” violates the statute
statute's legislative cosponsor, pointed out that whenever a clear transmission of an unrequested
“numerous cable operators across the country are adult channel would violate the statute.
still automatically broadcasting sexually explicit
Second, the majority's characterization of this stat-
programming**1899 into households across Amer-
utory scheme as “prohibit[ing] ... speech” is an ex-
ica, regardless of whether parents want this or sub-
aggeration. Ante, at 1885-1886. Rather, the statute
scribers want it.” 141 Cong. Rec. 15588. She com-
places a burden on adult channel speech by requir-
plained that the “industry has only taken baby steps
ing the relevant cable operator either to use better
to address this problem through voluntary policies
scrambling technology, or, if that technology is too
that simply recommend action,” ibid., adding that
expensive, to broadcast only between 10 p.m. and 6
the “problem is that there are no uniform laws or
a.m. Laws that burden speech, say, by making
regulations that govern such sexually explicit adult
speech less profitable, may create serious First
programming on cable television,” id., at 15587.
Amendment issues, but they are not the equivalent
She consequently proposed, and Congress enacted,
of an absolute ban on speech itself. Cf. Nixon v.
the present statute.

120 S.Ct. 1878 Page 23
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
Shrink Missouri Government PAC, 528 U.S. 377, educational or other value”); Butler, supra, at
120 S.Ct. 897, 145 L.Ed.2d 886 (2000). Thus, this 381-384, 77 S.Ct. 524 (invalidating ban on books “
Court has upheld laws that do not ban the access of ‘tending to the corruption of the morals of youth’
adults to sexually explicit speech, but burden that ”).
access through geographical or temporal zoning.
See, e.g., Renton v. Playtime Theatres, Inc., 475 With this background in mind, the reader will better
U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); FCC understand my basic disagreement with each of the
v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. Court's two conclusions.
3026, 57 L.Ed.2d 1073 (1978); Young v. American
Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 II
L.Ed.2d 310 (1976). This Court has also recognized
that material the First Amendment guarantees The majority first concludes that the Government
adults the right to see may not be suitable for chil- failed to prove the seriousness of the problem-re-
dren. And it has consequently held that legislatures ceipt of adult channels by children whose parents
maintain a limited power to protect children by re- did not request their broadcast. Ante, at 1889-1891.
stricting access to, but not banning, adult material. This claim is flat-out wrong. For one thing, the
Compare Ginsberg v. New York, 390 U.S. 629, 88 parties concede that basic RF scrambling does not
S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding ban scramble the audio portion of the program. 30
on sale of pornographic magazines to minors), with F.Supp.2d, at 707. For another, Playboy itself con-
Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 ducted a survey of cable operators who were asked:
L.Ed.2d 412 (1957) (invalidating ban on all books “Is your system in full compliance with Section 505
unfit for minors); see also Denver Area Educational (no discernible audio or video bleed)?” To this
Telecommunications Consortium, Inc. v. FCC, 518 question, 75% of cable operators answered “no.”
U.S. 727, 737-753, 116 S.Ct. 2374, 135 L.Ed.2d See Def. Exh. 254, 2 Record 2. Further, the Gov-
888 (1996) (plurality opinion); Pacifica Founda- ernment's expert took the number of homes sub-
tion, supra, at 748-750, 98 S.Ct. 3026; Reno, supra, scribing to Playboy or Spice, multiplied by the frac-
at 887-889, 117 S.Ct. 2329 (O'CONNOR, J., con- tion of cable households with children and the aver-
curring in part and dissenting in part). The differ- age number of children per household, and found
ence-between imposing a burden**1900 and enact- 29 million children are potentially exposed to audio
ing a ban-can matter even when strict First Amend- and video bleed from adult programming. Def. Exh.
ment rules are at issue. 82, 10 Record 11-12. Even discounting by 25% for
systems that might be considered in full compli-
*839 Third, this case concerns only the regulation ance, this left *840 22 million children in homes
of commercial actors who broadcast “virtually with faulty scrambling systems. See id., at 12. And,
100% sexually explicit” material. 30 F.Supp.2d of course, the record contains additional anecdotal
702, 707 (D.Del.1998). The channels do not broad- evidence and the concerns expressed by elected of-
cast more than trivial amounts of more serious ma- ficials, probative of a larger problem. See 30
terial such as birth control information, artistic im- F.Supp.2d, at 709, and n. 10; see also 141 Cong.
ages, or the visual equivalents of classical or seri- Rec. 15586 (1995).
ous literature. This case therefore does not present
the kind of narrow tailoring concerns seen in other I would add to this empirical evidence the major-
cases. See, e.g., Reno, 521 U.S., at 877-879, 117 ity's own statement that “ most cable operators had
S.Ct. 2329 (“The breadth of the [statute's] coverage ‘no practical choice but to curtail’ ” adult program-
is wholly unprecedented ... .[It] cover[s] large ming by switching to nighttime only transmission
amounts of nonpornographic material with serious of adult channels. Ante, at 1884 (emphasis added)

120 S.Ct. 1878 Page 24
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
(quoting 30 F.Supp.2d, at 711). If signal bleed is small, for the Legislature when it chooses among
not a significant empirical problem, then why, in possible alternatives in light of predicted comparat-
light of the cost of its cure, must so many cable op- ive effects. Without some such empirical leeway,
erators switch to nighttime hours? There is no real- the undoubted ability of lawyers and judges to ima-
istic answer to this question. I do not think it real- gine some kind of slightly less drastic or restrictive
istic to imagine that signal bleed occurs just enough an approach would make it impossible to write laws
to make cable operators skittish, without also signi- that deal with the harm that called the statute into
ficantly exposing children to these images. See being. As Justice Blackmun pointed out, a “judge
ante, at 1890-1891. would be unimaginative indeed if he could not
come up with something a little less ‘drastic’ or a
If, as the majority suggests, the signal bleed prob- little less ‘restrictive’ in almost any situation, and
lem is not significant, then there is also no signific- thereby enable himself to vote to strike legislation
ant burden on speech created by § 505. The major- down.” Illinois Bd. of Elections v. Socialist Work-
ity cannot have this evidence both ways. And if, ers Party, 440 U.S. 173, 188-189, 99 S.Ct. 983, 59
given this logical difficulty and the quantity of em- L.Ed.2d 230 (1979) (concurring opinion). Used
pirical evidence, the majority still believes that the without a sense of the practical choices that face le-
Government has not proved its case, then it imposes gislatures, “the test merely announces an inevitable
a burden upon the Government beyond that sugges- [negative] result, and the test is no test at all.” Id.,
ted in any other First Amendment case of which I at 188, 99 S.Ct. 983.
am aware.
The majority, in describing First Amendment juris-
prudence, scarcely mentions the words “at least as
III
effective”-a rather surprising omission since they
The majority's second claim-that the Government happen to be what this case is all about. But the ma-
failed to demonstrate the absence of a “less restrict- jority does refer to Reno's understanding of less re-
ive alternative”-presents a closer question. The spe- strictive alternatives, ante, at 1886, and it addresses
cific question is whether § 504's “opt-out” amounts the Government's effectiveness arguments, ante, at
to a “less restrictive,” but similarly**1901 practical 1891-1893. I therefore assume it continues to re-
and effective, way to accomplish § 505's child- cognize their role as part of the test that it enunci-
protecting objective. As Reno tells us, a “less re- ates.
strictive alternativ[e]” must be “at least as effective
I turn then to the major point of disagreement. Un-
in achieving the legitimate purpose that the statute
like the majority, I believe the record makes clear
was enacted to serve.” 521 U.S., at 874, 117 S.Ct.
that § 504's opt-out is not a similarly effective al-
2329.
ternative. Section 504 (opt-out) and § 505 (opt-in)
*841 The words I have just emphasized, “similarly” work differently in order to achieve very different
and “effective,” are critical. In an appropriate case legislative objectives. Section 504 *842 gives par-
they ask a judge not to apply First Amendment ents the power to tell cable operators to keep any
rules mechanically, but to decide whether, in light channel out of their home. Section 505 does more.
of the benefits and potential alternatives, the statute Unless parents explicitly consent, it inhibits the
works speech-related harm (here to adult speech) transmission of adult cable channels to children
out of proportion to the benefits that the statute whose parents may be unaware of what they are
seeks to provide (here, child protection). watching, whose parents cannot easily supervise
television viewing habits, whose parents do not
These words imply a degree of leeway, however know of their § 504 “opt-out” rights, or whose par-

120 S.Ct. 1878 Page 25
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
ents are simply unavailable at critical times. In this showing that the two laws are not equivalent with
respect, § 505 serves the same interests as the laws respect to the Government's objectives. As the ma-
that deny children access to adult cabarets or X- jority observes, during the 14 months the Govern-
rated movies. E.g., Del.Code Ann., Tit. 11, § 1365 ment was enjoined from enforcing § 505, “fewer
(i)(2) (1995); D.C.Code Ann. § 22-2001(b)(1)(B) than 0.5% of cable subscribers requested full block-
(1996). These laws, and § 505, all act in the ab- ing” under § 504. Ante, at 1888. The majority de-
sence of direct parental supervision. scribes this public reaction as “a collective yawn,”
ibid., adding that the Government failed to prove
This legislative objective is perfectly legitimate. that the “yawn” reflected anything other than the
Where over 28 million school age children have lack of a serious signal bleed problem or a lack of
both parents or their only parent in the work force, notice which better information about § 504 might
where at least 5 million children are left alone at cure. The record excludes the first possibility-at
home without supervision each week, and where least in respect to exposure, as discussed above. See
children may spend afternoons and evenings watch- supra, at 1900-1901. And I doubt that the public,
ing television outside of the home with friends, § though it may well consider the viewing habits of
505 offers independent protection for a large num- adults a matter of personal choice, would “yawn”
ber of families. See U.S. Dept. of Education, Office when the exposure in question concerns young chil-
of Research and Improvement, Bringing Education dren, the absence of parental consent, and the sexu-
into the After-School Hours 3 (summer 1999). I ally explicit material here at issue. See ante, at
could not disagree more when the majority implies 1896-1897 (SCALIA, J., dissenting).
that the Government's independent interest in offer-
ing such protection-preventing, say, an 8-year-old Neither is the record neutral in respect to the curat-
child from watching virulent pornography without ive power of better notice. Section 504's opt-out
parental consent-might not be “compelling.” Ante, right works only when parents (1) become aware of
at 1892-1893. No previous case in which the pro- their § 504 rights, (2) discover that their children
tection of **1902 children was at issue has sugges- are watching sexually explicit signal “bleed,” (3)
ted any such thing. Indeed, they all say precisely reach their cable operator and ask that it block the
the opposite. See Reno, supra, at 865, 117 S.Ct. sending of its signal to their home, (4) await install-
2329 (State has an “independent interest in the ation of an individual blocking device, and, perhaps
well-being of its youth”); Denver Area, 518 U.S., at (5) (where the block fails or the channel number
743, 116 S.Ct. 2374; New York v. Ferber, 458 U.S. changes) make a new request. Better notice of §
747, 756-757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 504 rights does little to help parents discover their
(1982); Ginsberg, 390 U.S., at 640, 88 S.Ct. 1274; children's viewing habits (step 2). And it does noth-
Prince v. Massachusetts, 321 U.S. 158, 165, 64 ing at all in respect to steps 3 through 5. Yet the re-
S.Ct. 438, 88 L.Ed. 645 (1944). They make clear cord contains considerable evidence that those
that Government has a compelling interest in help- problems matter, i.e., evidence of endlessly delayed
ing parents by preventing *843 minors from access- phone *844 call responses, faulty installations,
ing sexually explicit materials in the absence of blocking failures, and other mishaps, leaving those
parental supervision. See Ginsberg, supra, at 640, steps as significant § 504 obstacles. See, e.g., De-
88 S.Ct. 1274. position of J. Cavalier in Civ. Action No. 96-94, pp.
17-18 (D.Del., Dec. 5, 1997) (“It's like calling any
By definition, § 504 does nothing at all to further utilities; you sit there, and you wait and wait on the
the compelling interest I have just described. How phone.... [It took] [t]hree weeks, numerous phone
then is it a similarly effective § 505 alternative? calls ... .[E]very time I call Cox Cable ... I get dif-
ferent stories”); Telephonic Deposition of M. Ben-
The record, moreover, sets forth empirical evidence

120 S.Ct. 1878 Page 26
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
nett, id., at 10-11 (D.Del., Dec. 9, 1997) (“After economic evidence shows that if more than 6% do
two [failed installations,] no, I don't recall calling so, Playboy's programming would be totally elimin-
them again. I just said well, I guess this is ated. The majority provides no answer to this argu-
something I'm going to have to live with”). ment in its opinion-and this evidence is sufficient in
and of itself to dispose of this case.
Further, the District Court's actual plan for “better
notice”-the only plan that makes concrete the ma- Of course, it is logically possible that “better no-
jority's “better notice” requirement-is fraught with tice” will bring about near perfect parental know-
difficulties. The District Court ordered Playboy to ledge (of what children watch and § 504 opt-out
insist that cable operators place notice of § 504 in rights), that cable operators will respond rapidly to
“inserts in monthly billing statements, barker chan- blocking requests, and that still 94% of all informed
nels ... and on-air advertising.” 30 F.Supp.2d, at parents will decided not to have adult channels
719. But how can one say that placing one more in- blocked for free. But the probability that this re-
sert in a monthly billing statement stuffed with oth- mote possibility will occur is neither a “draw” nor a
ers, or calling additional attention to adult channels “tie.” Ante, at 1889. And that fact is sufficient for
through a “notice” on “barker” channels, will make the Government to have met its burden of proof.
more than a small difference? More importantly,
why would doing so not interfere to some extent All these considerations show that § 504's opt-out,
with the cable operators' own **1903 freedom to even with the Court's plan for “better notice,” is not
decide what to broadcast? And how is the District similarly effective in achieving the legitimate goals
Court to supervise the contracts with thousands of that the statute was enacted to serve.
cable operators that are to embody this require-
ment? IV
Even if better notice did adequately inform viewers Section 505 raises the cost of adult channel broad-
of their § 504 rights, exercise of those rights by casting. In doing so, it restricts, but does not ban,
more than 6% of the subscriber base would itself adult speech. Adults may continue to watch adult
raise Playboy's costs to the point that Playboy channels, though less conveniently, by watching at
would be forced off the air entirely, 30 F.Supp.2d, night, recording programs with a VCR, or by sub-
at 713-a consequence that would not seem to fur- scribing to digital cable with better blocking sys-
ther anyone's interest in free speech. The majority, tems. Cf. Renton, 475 U.S., at 53-55, 106 S.Ct. 925
resting on its own earlier conclusion that signal (upholding zoning rules that force potential adult
bleed is not widespread, denies any likelihood that theater patrons to travel to less convenient loca-
more than 6% of viewers would need § 504. But tions). The Government's justification for imposing
that earlier conclusion is unsound. See supra, at this restriction-limiting the access of children to
1900-1901. The majority also relies on *845 the channels that broadcast virtually 100%
fact that Playboy, presumably aware of its own eco- “sexuallyexplicit” *846 material-is “compelling.”
nomic interests, “is willing to incur the costs of an The record shows no similarly effective, less re-
effective § 504.” Ante, at 1892. Yet that denial, as strictive alternative. Consequently § 505's restric-
the majority admits, may simply reflect Playboy's tion, viewed in light of the proposed alternative, is
knowledge that § 504, even with better notice, will proportionate to need. That is to say, it restricts
not work. Section 504 is not a similarly effective al- speech no more than necessary to further that com-
ternative to § 505 (in respect to the Government's pelling need. Taken together, these considerations
interest in protecting children), unless more than a lead to the conclusion that § 505 is lawful.
minimal number of viewers actually use it; yet the

120 S.Ct. 1878 Page 27
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
I repeat that my disagreement with the majority lies L.Ed.2d 195 (1968). It is not difficult to distinguish
in the fact that, in my view, the Government has our cases striking down such laws-either because
satisfied its burden of proof. In particular, it has they applied far more broadly than the narrow regu-
proved both the existence of a serious problem and lation of adult channels here, see, e.g., Reno v.
the comparative ineffectiveness of § 504 in resolv- American Civil Liberties Union, 521 U.S. 844, 117
ing that problem. This disagreement is not about al- S.Ct. 2329, 138 L.Ed.2d 874 (1997), imposed a
location of First Amendment burdens of proof, ba- total ban on a form of adult speech, see, e.g., Sable
sic First Amendment principle, nor the importance Communications of Cal., Inc. v. FCC, 492 U.S.
of that Amendment to our scheme of Government. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989); Bolger
See ante, at 1893. First Amendment standards are v. Youngs Drug Products Corp., 463 U.S. 60, 103
rigorous. They safeguard speech. But they also per- S.Ct. 2875, 77 L.Ed.2d 469 (1983), or because a
mit Congress to enact a law that increases the costs less restrictive, similarly effective alternative was
associated with certain speech, where doing so otherwise available, see, e.g., Denver Area, 518
serves a compelling interest that cannot be served U.S., at 753-760, 116 S.Ct. 2374.
through the adoption of a less restrictive, similarly
effective alternative. **1904 Those standards at Nor is it a satisfactory answer to say, as does
their strictest make it difficult for the Government Justice THOMAS, that the Government remains
to prevail. But they do not make it impossible for free to prosecute under the obscenity laws. Ante, at
the Government to prevail. 1894-1895. The obscenity exception permits cen-
sorship of communication even among adults. See,
The majority here, however, has applied those e.g., Miller v. California, 413 U.S. 15, 93 S.Ct.
standards without making a realistic assessment of 2607, 37 L.Ed.2d 419 (1973). It must be kept nar-
the alternatives. It thereby threatens to leave Con- row lest the Government improperly interfere with
gress without power to help the millions of parents the communication choices that adults have freely
who do not want to expose their children to com- made. To rely primarily upon law that bans speech
mercial pornography-but will remain ill served by for adults is to overlook the special need to protect
the Court's chosen remedy. Worse still, the logic of children.
the majority's “505/504” comparison (but not its
holding that the problem has not been established) Congress has taken seriously the importance of
would seem to apply whether “bleeding” or totally maintaining adult access to the sexually explicit
unscrambled transmission is at issue. If so, the pub- channels here at issue. It has tailored the restric-
lic would have to depend solely upon the voluntary tions to minimize their impact upon adults while of-
conduct of cable channel operators to avert consid- fering parents help in keeping unwanted transmis-
erably greater harm. sions from their children. By finding “adequate al-
ternatives” where there are none, the Court reduces
*847 Case law does not mandate the Court's result. Congress' protective power to the vanishing point.
To the contrary, as I have pointed out, our prior That is not what the First Amendment demands.
cases recognize that, where the protection of chil-
dren is at issue, the First Amendment poses a barri- I respectfully dissent.
er that properly is high, but not insurmountable. It
U.S.,2000.
is difficult to reconcile today's decision with our
U.S. v. Playboy Entertainment Group, Inc.
foundational cases that have upheld similar laws,
529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865, 68
such as FCC v. Pacifica Foundation, 438 U.S. 726,
USLW 4409, 28 Media L. Rep. 1801, 00 Cal. Daily
98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), and Gins-
Op. Serv. 3966, 2000 Daily Journal D.A.R. 5305,
berg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20
2000 CJ C.A.R. 2765, 20 Communications Reg.

120 S.Ct. 1878 Page 28
Weekly Fed. S 325
(Cite as: 529 U.S. 803, 120 S.Ct. 1878)
(P&F) 551, 13 Fla. L. Weekly Fed. S 325
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[1] Constitutional Law 92 2258

Supreme Court of the United States 92 Constitutional Law

West Headnotes 92 Constitutional Law

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Press 92k1517 k. In General. Most Cited

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372 Telecommunications 92XVIII Freedom of Speech, Expression, and

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Restrictions to enjoin the speech restriction. U.S.C.A.

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fective. There is no evidence that a well-promoted pellee.

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Section 505 of the Telecommunications Act of “(b) ‘Scramble’ defined

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Justice SCALIA, dissenting. materials are obscene”). This is so whether or not

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(P&F) 551, 13 Fla. L. Weekly Fed. S 325

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