Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the
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SUPREME COURT OF THE UNITED STATES



No. 98—1682



UNITED STATES, et al., APPELLANTS v. PLAYBOY

ENTERTAINMENT GROUP, INC.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

[May 22, 2000]

Justice Kennedy delivered the opinion of the Court.

This case presents a challenge to §505 of the Telecommunications Act of 1996, Pub. L. 104—104, 110
Stat. 136, 47

U.S.C. § 561 (1994 ed., Supp. III). Section 505 requires cable television operators who provide channels
"primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block"
those channels or to limit their transmission to hours when children are unlikely to be viewing, set by
administrative regulation as the time between 10 p.m. and 6 a.m. 47 U.S.C. § 561(a) (1994 ed., Supp. III);
47 CFR § 76.227 (1999). Even before enactment of the statute, signal scrambling was already in use. Cable
operators used scrambling in the regular course of business, so that only paying customers had access to
certain programs. Scrambling could be imprecise, however; and either or both audio and visual portions of
the scrambled programs might be heard or seen, a phenomenon known as "signal bleed." The purpose of
§505 is to shield children from hearing or seeing images resulting from signal bleed.

To comply with the statute, the majority of cable operators adopted the second, or "time channeling,"
approach. The effect of the widespread adoption of time channeling was to eliminate altogether the
transmission of the targeted programming outside the safe harbor period in affected cable service areas. In
other words, for two-thirds of the day no household in those service areas could receive the programming,
whether or not the household or the viewer wanted to do so.

Appellee Playboy Entertainment Group, Inc., challenged the statute as unnecessarily restrictive
content-based legislation violative of the First Amendment. After a trial, a three-judge District Court
concluded that a regime in which viewers could order signal blocking on a household-by-household basis
presented an effective, less restrictive alternative to §505. 30

F. Supp. 2d 702, 719 (Del. 1998). Finding no error in this conclusion, we affirm.

I

Playboy Entertainment Group owns and prepares programs for adult television networks, including
Playboy Television and Spice. Playboy transmits its programming to cable television operators, who
retransmit it to their subscribers, either through monthly subscriptions to premium channels or on a
so-called "pay-per-view" basis. Cable operators transmit Playboy’s signal, like other premium channel
signals, in scrambled form. The operators then provide paying subscribers with an "addressable
converter," a box placed on the home television set. The converter permits the viewer to see and hear the
descrambled signal.

It is conceded that almost all of Playboy’s programming consists of sexually explicit material as defined by
the statute.

The statute was enacted because not all scrambling technology is perfect. Analog cable television systems
may use either

"RF" or "baseband" scrambling systems, which may not prevent signal bleed, so discernible pictures may
appear from time to time on the scrambled screen. Furthermore, the listener might hear the audio portion of
the program.

These imperfections are not inevitable. The problem is that at present it appears not to be economical to
convert simpler RF or baseband scrambling systems to alternative scrambling technologies on a
systemwide scale. Digital technology may one day provide another solution, as it presents no bleed
problem at all. Indeed, digital systems are projected to become the technology of choice, which would
eliminate the signal bleed problem. Digital technology is not yet in widespread use, however. With
imperfect scrambling, viewers who have not paid to receive Playboy’s channels may happen across
discernible images of a sexually explicit nature. How many viewers, how discernible the scene or sound,
and how often this may occur are at issue in this case.

Section 505 was enacted to address the signal bleed phenomenon. As noted, the statute and its
implementing regulations require cable operators either to scramble a sexually explicit channel in full or to
limit the channel’s programming to the hours between 10 p.m. and 6 a.m. 47 U.S.C. § 561 (1994 ed., Supp.
III); 47 CFR § 76.227 (1999). Section 505 was added by floor amendment, without significant debate, to
the Telecommunications Act of 1996 (Act), a major legislative effort designed "to reduce regulation and
encourage ‘the rapid deployment of new telecommunications technologies.’" Reno v. American Civil
Liberties Union, 521 U.S. 844, 857 (1997) (quoting 110 Stat. 56). "The Act includes seven Titles, six of
which are the product of extensive committee hearings and the subject of discussion in Reports prepared by
Committees of the Senate and the House of Representatives." Reno, supra, at 858. Section 505 is found in
Title V of the Act, which is itself known as the Communications Decency Act of 1996 (CDA). 110 Stat.
133. Section 505 was to become effective on March 9, 1996, 30 days after the Act was signed by the
President. Note following 47 U.S.C. § 561 (1994 ed., Supp. III).

On March 7, 1996, Playboy obtained a temporary restraining order (TRO) enjoining the enforcement of
§505. 918

F. Supp. 813 (Del.), and brought this suit in a three-judge District Court pursuant to §561 of the Act, 110
Stat. 142, note

following 47 U.S.C. § 223 (1994 ed., Supp. III). Playboy sought a declaration that §505 violates the
Constitution and an

injunction prohibiting the law’s enforcement. The District Court denied Playboy a preliminary injunction,
945 F. Supp. 772

(Del. 1996), and we summarily affirmed, 520 U.S. 1141 (1997). The TRO was lifted, and the Federal
Communications

Commission announced it would begin enforcing §505 on May 18, 1997. In re Implementation of Section
505 of the

Telecommunications Act of 1996, 12 FCC Rcd. 5212, 5214 (1997).

When the statute became operative, most cable operators had "no practical choice but to curtail [the
targeted] programming

during the [regulated] sixteen hours or risk the penalties imposed … if any audio or video signal bleed
occur[red] during [those]

times." 30 F. Supp. 2d, at 711. The majority of operators–"in one survey, 69%"–complied with §505 by
time channeling the

targeted programmers. Ibid. Since "30 to 50% of all adult programming is viewed by households prior to
10 p.m.," the result

was a significant restriction of communication, with a corresponding reduction in Playboy’s revenues. Ibid.

In March 1998, the District Court held a full trial and concluded that §505 violates the First Amendment.
30 F. Supp. 2d, at

702. The District Court observed that §505 imposed a content-based restriction on speech. Id., at
714—715. It agreed that

the interests the statute advanced were compelling but concluded the Government might further those
interests in less restrictive

ways. Id., at 717—720. One plausible, less restrictive alternative could be found in another section of the
Act: §504, which

requires a cable operator, "[u]pon request by a cable service subscriber . . . without charge, [to] fully
scramble or otherwise

fully block" any channel the subscriber does not wish to receive. 110 Stat. 136, 47 U.S.C. § 560 (1994 ed.,
Supp. III). As

long as subscribers knew about this opportunity, the court reasoned, §504 would provide as much
protection against unwanted

programming as would §505. 30 F. Supp. 2d, at 718—720. At the same time, §504 was content neutral and
would be less

restrictive of Playboy’s First Amendment rights. Ibid.

The court described what "adequate notice" would include, suggesting

"[operators] should communicate to their subscribers the information that certain channels broadcast
sexually-oriented

programming; that signal bleed … may appear; that children may view signal bleed without their parents’
knowledge or

permission; that channel blocking devices … are available free of charge … ; and that a request for a free
device … can be

made by a telephone call to the [operator]." Id., at 719.

The means of providing this notice could include

"inserts in monthly billing statements, barker channels (preview channels of programming coming up on
Pay-Per-View), and

on-air advertisement on channels other than the one broadcasting the sexually explicit programming." Ibid.

The court added that this notice could be "conveyed on a regular basis, at reasonable intervals," and could
include notice of

changes in channel alignments. Ibid.

The District Court concluded that §504 so supplemented would be an effective, less restrictive alternative
to §505, and

consequently declared §505 unconstitutional and enjoined its enforcement. Id., at 719—720. The court also
required Playboy

to insist on these notice provisions in its contracts with cable operators. Ibid.

The United States filed a direct appeal in this Court pursuant to §561. The District Court thereafter
dismissed for lack of

jurisdiction two post-trial motions filed by the Government. App. to Juris. Statement 91a—92a. We noted
probable

jurisdiction, 527 U.S. 1021 (1999), and now affirm.

II

Two essential points should be understood concerning the speech at issue here. First, we shall assume that
many adults

themselves would find the material highly offensive; and when we consider the further circumstance that
the material comes

unwanted into homes where children might see or hear it against parental wishes or consent, there are
legitimate reasons for

regulating it. Second, all parties bring the case to us on the premise that Playboy’s programming has First
Amendment

protection. As this case has been litigated, it is not alleged to be obscene; adults have a constitutional right
to view it; the

Government disclaims any interest in preventing children from seeing or hearing it with the consent of their
parents; and Playboy

has concomitant rights under the First Amendment to transmit it. These points are undisputed.

The speech in question is defined by its content; and the statute which seeks to restrict it is content based.
Section 505

applies only to channels primarily dedicated to "sexually explicit adult programming or other programming
that is indecent." The

statute is unconcerned with signal bleed from any other channels. See 945 F. Supp., at 785 ("[Section 505]
does not apply

when signal bleed occurs on other premium channel networks, like HBO or the Disney Channel"). The
overriding justification

for the regulation is concern for the effect of the subject matter on young viewers. Section 505 is not
"‘justified without

reference to the content of the regulated speech.’" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(quoting Clark

v. Community for Creative Non&nbhyph;Violence, 468 U.S. 288, 293 (1984) (emphasis deleted)). It
"focuses only on the

content of the speech and the direct impact that speech has on its listeners." Boos v. Barry, 485 U.S. 312,
321 (1988)

(opinion of O’Connor, J.). This is the essence of content-based regulation.

Not only does §505 single out particular programming content for regulation, it also singles out particular
programmers. The

speech in question was not thought by Congress to be so harmful that all channels were subject to
restriction. Instead, the

statutory disability applies only to channels "primarily dedicated to sexually-oriented programming." 47
U.S.C. § 561(a) (1994

ed., Supp. III). One sponsor of the measure even identified appellee by name. See 141 Cong. Rec. 15587
(1995) (statement

of Sen. Feinstein) (noting the statute would apply to channels "such as the Playboy and Spice channels").
Laws designed or

intended to suppress or restrict the expression of specific speakers contradict basic First Amendment
principles. Section 505

limited Playboy’s market as a penalty for its programming choice, though other channels capable of
transmitting like material are

altogether exempt.

The effect of the federal statute on the protected speech is now apparent. It is evident that the only
reasonable way for a

substantial number of cable operators to comply with the letter of §505 is to time channel, which silences
the protected speech

for two-thirds of the day in every home in a cable service area, regardless of the presence or likely
presence of children or of

the wishes of the viewers. According to the District Court, "30 to 50% of all adult programming is viewed
by households prior

to 10 p.m.," when the safe-harbor period begins. 30 F. Supp. 2d, at 711. To prohibit this much speech is a
significant

restriction of communication between speakers and willing adult listeners, communication which enjoys
First Amendment

protection. It is of no moment that the statute does not impose a complete prohibition. The distinction
between laws burdening

and laws banning speech is but a matter of degree. The Government’s content-based burdens must satisfy
the same rigorous

scrutiny as its content-based bans.

Since §505 is a content-based speech restriction, it can stand only if it satisfies strict scrutiny. Sable
Communications of

Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). If a statute regulates speech based on its content, it must be
narrowly tailored

to promote a compelling Government interest. Ibid. If a less restrictive alternative would serve the
Government’s purpose, the

legislature must use that alternative. Reno, 521 U.S., at 874 ("[The CDA’s Internet indecency provisions’]
burden on adult

speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the
legitimate purpose that the

statute was enacted to serve"); Sable Communications, supra, at 126 ("The Government may … regulate
the content of

constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive
means to further the

articulated interest"). To do otherwise would be to restrict speech without an adequate justification, a
course the First

Amendment does not permit.

Our precedents teach these principles. Where the designed benefit of a content-based speech restriction is
to shield the

sensibilities of listeners, the general rule is that the right of expression prevails, even where no less
restrictive alternative exists.

We are expected to protect our own sensibilities "simply by averting [our] eyes." Cohen v. California, 403
U.S. 15, 21

(1971); accord, Erznoznik v. Jacksonville, 422 U.S. 205, 210—211 (1975). Here, of course, we consider
images

transmitted to some homes where they are not wanted and where parents often are not present to give
immediate guidance.

Cable television, like broadcast media, presents unique problems, which inform our assessment of the
interests at stake, and

which may justify restrictions that would be unacceptable in other contexts. See Denver Area Ed.
Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727, 744 (1996) (plurality opinion); id., at 804—805 (Kennedy, J.,
concurring in part,

concurring in judgment in part, and dissenting in part); FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
No one suggests

the Government must be indifferent to unwanted, indecent speech that comes into the home without parental
consent. The

speech here, all agree, is protected speech; and the question is what standard the Government must meet in
order to restrict it.

As we consider a content-based regulation, the answer should be clear: The standard is strict scrutiny. This
case involves

speech alone; and even where speech is indecent and enters the home, the objective of shielding children
does not suffice to

support a blanket ban if the protection can be accomplished by a less restrictive alternative.

In Sable Communications, for instance, the feasibility of a technological approach to controlling minors’
access to

"dial-a-porn" messages required invalidation of a complete statutory ban on the medium. 492 U.S., at
130—131. And, while

mentioned only in passing, the mere possibility that user-based Internet screening software would "‘soon
be widely available’"

was relevant to our rejection of an overbroad restriction of indecent cyberspeech. Reno, supra, at
876—877. Compare

Rowan v. Post Office Dept., 397 U.S. 728, 729—730 (1970) (upholding statute "whereby any householder
may insulate

himself from advertisements that offer for sale ‘matter which the addressee in his sole discretion believes
to be erotically

arousing or sexually provocative’" (quoting then 39 U.S.C. § 4009(a) (1964 ed., Supp. IV))), with Bolger
v. Youngs Drug

Products Corp., 463 U.S. 60, 75 (1983) (rejecting blanket ban on the mailing of unsolicited contraceptive
advertisements).

Compare also Ginsberg v. New York, 390 U.S. 629, 631 (1968) (upholding state statute barring the sale to
minors of material

defined as "obscene on the basis of its appeal to them"), with Butler v. Michigan, 352 U.S. 380, 381
(1957) (rejecting

blanket ban of material "‘tending to incite minors to violent or depraved or immoral acts, manifestly
tending to the corruption of

the morals of youth’" (quoting then Mich. Penal Code §343)). Each of these cases arose in a different
context–Sable

Communications and Reno, for instance, also note the affirmative steps necessary to obtain access to
indecent material via the

media at issue–but they provide necessary instruction for complying with accepted First Amendment
principles.

Our zoning cases, on the other hand, are irrelevant to the question here. Post, at 4 (Breyer, J., dissenting)
(citing Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986), and Young v. American Mini Theatres, Inc., 427 U.S. 50
(1976)). We have

made clear that the lesser scrutiny afforded regulations targeting the secondary effects of crime or declining
property values has

no application to content-based regulations targeting the primary effects of protected speech. Reno, supra,
at 867—868;

Boos,

485 U.S., at 320—321. The statute now before us bur-

dens speech because of its content; it must receive strict scrutiny.

There is, moreover, a key difference between cable television and the broadcasting media, which is the
point on which this

case turns: Cable systems have the capacity to block unwanted channels on a household-by-household
basis. The option to

block reduces the likelihood, so concerning to the Court in Pacifica, supra, at 744, that traditional First
Amendment scrutiny

would deprive the Government of all authority to address this sort of problem. The corollary, of course, is
that targeted

blocking enables the Government to support parental authority without affecting the First Amendment
interests of speakers and

willing listeners–listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes
may be the optimal

place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot
ban speech if

targeted blocking is a feasible and effective means of furthering its compelling interests. This is not to say
that the absence of an

effective blocking mechanism will in all cases suffice to support a law restricting the speech in question;
but if a less restrictive

means is available for the Government to achieve its goals, the Government must use it.

III

The District Court concluded that a less restrictive alternative is available: §504, with adequate publicity.
30 F. Supp. 2d, at

719—720. No one disputes that §504, which requires cable operators to block undesired channels at
individual households

upon request, is narrowly tailored to the Government’s goal of supporting parents who want those channels
blocked. The

question is whether §504 can be effective.

When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the
Government’s obligation

to prove that the alternative will be ineffective to achieve its goals. The Government has not met that
burden here. In support of

its position, the Government cites empirical evidence showing that §504, as promulgated and implemented
before trial,

generated few requests for household-by-household blocking. Between March 1996 and May 1997, while
the Government

was enjoined from enforcing §505, §504 remained in operation. A survey of cable operators determined
that fewer than 0.5%

of cable subscribers requested full blocking during that time. Id., at 712. The uncomfortable fact is that
§504 was the sole

blocking regulation in effect for over a year; and the public greeted it with a collective yawn.

The District Court was correct to direct its attention to the import of this tepid response. Placing the burden
of proof upon

the Government, the District Court examined whether §504 was capable of serving as an effective, less
restrictive means of

reaching the Government’s goals. Id., at 715, 718—719. It concluded that §504, if publicized in an
adequate manner, could

be. Id., at 719—720.

The District Court employed the proper approach. When the Government restricts speech, the Government
bears the

burden of proving the constitutionality of its actions. Greater New Orleans Broadcasting Assn., Inc. v.
United States, 527

U.S. 173, 183 (1999) ("[T]he Government bears the burden of identifying a substantial interest and
justifying the challenged

restriction"); Reno, 521 U.S., at 879 ("The breadth of this content-based restriction of speech imposes an
especially heavy

burden on the Government to explain why a less restrictive provision would not be as effective …");
Edenfield v. Fane, 507

U.S. 761, 770—771 (1993) ("[A] governmental body seeking to sustain a restriction on commercial speech
must demonstrate

that the harms it recites are real and that its restriction will in fact alleviate them to a material degree");
Board of Trustees of

State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989) ("[T]he State bears the burden of justifying its
restrictions …");

Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 509 (1969) ("In order for the
State … to

justify prohibition of a particular expression of opinion, it must be able to show that its action was caused
by something more

than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint"). When the

Government seeks to restrict speech based on its content, the usual presumption of constitutionality
afforded congressional

enactments is reversed. "Content-based regulations are presumptively invalid," R. A. V. v. St. Paul, 505
U.S. 377, 382

(1992), and the Government bears the burden to rebut that presumption.

This is for good reason. "[T]he line between speech unconditionally guaranteed and speech which may
legitimately be

regulated, suppressed, or punished is finely drawn." Speiser v. Randall, 357 U.S. 513, 525 (1958). Error
in marking that line

exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, expressed,
and tested. It is

through speech that we bring those beliefs to bear on Government and on society. It is through speech that
our personalities are

formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without
Government interference

or control.

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the
philosophy that

one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum,
beauty, and esthetics

are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The
Constitution no more

enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution
exists precisely so that

opinions and judgments, including esthetic and moral judgments about art and literature, can be formed,
tested, and expressed.

What the Constitution says is that these judgments are for the individual to make, not for the Government to
decree, even with

the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the
potential of this revolution

if we assume the Government is best positioned to make these choices for us.

It is rare that a regulation restricting speech because of its content will ever be permissible. Indeed, were
we to give the

Government the benefit of the doubt when it attempted to restrict speech, we would risk leaving regulations
in place that sought

to shape our unique personalities or to silence dissenting ideas. When First Amendment compliance is the
point to be proved,

the risk of non-persuasion–operative in all trials–must rest with the Government, not with the citizen. Id., at
526.

With this burden in mind, the District Court explored three explanations for the lack of individual blocking
requests. 30

F. Supp. 2d, at 719. First, individual blocking might not be an effective alternative, due to technological or
other limitations.

Second, although an adequately advertised blocking provision might have been effective, §504 as written
did not require

sufficient notice to make it so. Third, the actual signal bleed problem might be far less of a concern than the
Government at first

had supposed. Ibid.

To sustain its statute, the Government was required to show that the first was the right answer. According
to the District

Court, however, the first and third possibilities were "equally consistent" with the record before it. Ibid.
As for the second, the

record was "not clear" as to whether enough notice had been issued to give §504 a fighting chance. Ibid.
The case, then, was

at best a draw. Unless the District Court’s findings are clearly erroneous, the tie goes to free expression.

The District Court began with the problem of signal bleed itself, concluding "the Government has not
convinced us that

[signal bleed] is a pervasive problem." Id., at 708—709, 718. The District Court’s thorough discussion
exposes a central

weakness in the Government’s proof: There is little hard evidence of how widespread or how serious the
problem of signal

bleed is. Indeed, there is no proof as to how likely any child is to view a discernible explicit image, and no
proof of the duration

of the bleed or the quality of the pictures or sound. To say that millions of children are subject to a risk of
viewing signal bleed is

one thing; to avoid articulating the true nature and extent

of the risk is quite another. Under §505, sanctionable

signal bleed can include instances as fleeting as an image

appearing on a screen for just a few seconds. The First Amendment requires a more careful assessment and
characterization of

an evil in order to justify a regulation as sweeping as this. Although the parties have taken the additional
step of lodging with the

Court an assortment of videotapes, some of which show quite explicit bleeding and some of which show
television static or

snow, there is no attempt at explanation or context; there is no discussion, for instance, of the extent to
which any particular

tape is representative of what appears on screens nationwide.

The Government relied at trial on anecdotal evidence to support its regulation, which the District Court
summarized as

follows:

"The Government presented evidence of two city councillors, eighteen individuals, one United States
Senator, and the

officials of one city who complained either to their [cable operator], to their local Congressman, or to the
FCC about viewing

signal bleed on television. In each instance, the local [cable operator] offered to, or did in fact, rectify the
situation for free (with

the exception of 1 individual), with varying degrees of rapidity. Included in the complaints was the
additional concern that other

parents might not be aware that their children are exposed to this problem. In addition, the Government
presented evidence of

a child exposed to signal bleed at a friend’s house. Cindy Omlin set the lockout feature on her remote
control to prevent her

child from tuning to adult channels, but her eleven year old son was nevertheless exposed to signal bleed
when he attended a

slumber party at a friend’s house.

"The Government has presented evidence of only a handful of isolated incidents over the 16 years since
1982 when Playboy

started broadcasting. The Government has not presented any survey-type evidence on the magnitude of the
‘problem.’" Id., at

709 (footnote and record citations omitted).

Spurred by the District Court’s express request for more specific evidence of the problem, see 945 F.
Supp., at 779, n. 16,

the Government also presented an expert’s spreadsheet estimate that 39 million homes with 29.5 million
children had the

potential to be exposed to signal bleed, 30 F. Supp. 2d, at 708—709. The Government made no attempt to
confirm the

accuracy of its estimate through surveys or other field tests, however. Accordingly, the District Court
discounted the figures and

made this finding: "[T]he Government presented no evidence on the number of households actually exposed
to signal bleed and

thus has not quantified the actual extent of the problem of signal bleed." Id., at 709. The finding is not
clearly erroneous; indeed

it is all but required.

Once §505 went into effect, of course, a significant percentage of cable operators felt it necessary to time
channel their

sexually explicit programmers. Id., at 711, and n. 14. This is an indication that scrambling technology is not
yet perfected. That

is not to say, however, that scrambling is completely ineffective. Different cable systems use different
scrambling systems, which

vary in their dependability. "The severity of the problem varies from time to time and place to place,
depending on the weather,

the quality of the equipment, its installation, and maintenance." Id., at 708. At even the good end of the
spectrum a system

might bleed to an extent sufficient to trigger the time-channeling requirement for a cautious cable operator.
(The statute requires

the signal to be "fully block[ed]." 47 U.S.C. § 561(a) (1994 ed., Supp. III) (emphasis added).) A rational
cable operator,

faced with the possibility of sanctions for intermittent bleeding, could well choose to time channel even if
the bleeding is too

momentary to pose any concern to most households. To affirm that the Government failed to prove the
existence of a problem,

while at the same time observing that the statute imposes a severe burden on speech, is consistent with the
analysis our cases

require. Here, there is no probative evidence in the record which differentiates among the extent of bleed at
individual

households and no evidence which otherwise quantifies the signal bleed problem.

In addition, market-based solutions such as programmable televisions, VCR’s, and mapping systems
(which display a blue

screen when tuned to a scrambled signal) may eliminate signal bleed at the consumer end of the cable. 30
F. Supp. 2d, at 708.

Playboy made the point at trial that the Government’s estimate failed to account for these factors. Id., at
708—709. Without

some sort of field survey, it is impossible to know how widespread the problem in fact is, and the only
indicator in the record is

a handful of complaints. Cf. Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 187 (1997)
(reviewing "‘a record of

tens of thousands of pages’ of evidence" developed through "three years of pre-enactment hearings, … as
well as additional

expert submissions, sworn declarations and testimony, and industry documents" in support of complex
must-carry provisions).

If the number of children transfixed by even flickering pornographic television images in fact reached into
the millions we, like

the District Court, would have expected to be directed to more than a handful of complaints.

No support for the restriction can be found in the near barren legislative record relevant to this provision.
Section 505 was

added to the Act by floor amendment, accompanied by only brief statements, and without committee
hearing or debate. See

141 Cong. Rec. 15586—15589 (1995). One of the measure’s sponsors did indicate she considered time
channeling to be

superior to voluntary blocking, which "put[s] the burden of action on the subscriber, not the cable
company." Id., at 15587

(statement of Sen. Feinstein). This sole conclusory statement, however, tells little about the relative
efficacy of voluntary

blocking versus time channeling, other than offering the unhelpful, self-evident generality that voluntary
measures require

voluntary action. The Court has declined to rely on similar evidence before. See Sable Communications,
492 U.S., at

129—130 ("[A]side from conclusory statements during the debates by proponents of the bill, … the
congressional record

presented to us contains no evidence as to how effective or ineffective the … regulations were or might
prove to be" (footnote

omitted)); Reno, 521 U.S., at 858, and n. 24, 875—876, n. 41 (same). This is not to suggest that a 10,000
page record must

be compiled in every case or that the Government must delay in acting to address a real problem; but the
Government must

present more than anecdote and supposition. The question is whether an actual problem has been proven in
this case. We

agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide
daytime speech ban.

Nor did the District Court err in its second conclusion. The Government also failed to prove §504 with
adequate notice

would be an ineffective alternative to §505. Once again, the District Court invited the Government to
produce its proof. See

945 F. Supp., at 781 ("If the §504 blocking option is not being promoted, it cannot become a meaningful
alternative to the

provisions of §505. At the time of the permanent injunction hearing, further evidence of the actual and
predicted impact and

efficacy of §504 would be helpful to us"). Once again, the Government fell short. See 30 F. Supp. 2d, at
719 ("[The

Government’s argument that §504 is ineffective] is premised on adequate notice to subscribers. It is not
clear, however, from

the record that notices of the provisions of §504 have been adequate"). There is no evidence that a
well-promoted voluntary

blocking provision would not be capable at least of informing parents about signal bleed (if they are not yet
aware of it) and

about their rights to have the bleed blocked (if they consider it a problem and have not yet controlled it
themselves).

The Government finds at least two problems with the conclusion of the three-judge District Court. First, the
Government

takes issue with the District Court’s reliance, without proof, on a "hypothetical, enhanced version of
Section 504." Brief for

United States et al. 32. It was not the District Court’s obligation, however, to predict the extent to which an
improved notice

scheme would improve §504. It was for the Government, presented with a plausible, less restrictive
alternative, to prove the

alternative to be ineffective, and §505 to be the least restrictive available means. Indeed, to the extent the
District Court erred,

it was only in attempting to implement the less restrictive alternative through judicial decree by requiring
Playboy to provide for

expanded notice in its cable service contracts. The appropriate remedy was not to repair the statute, it was
to enjoin the speech

restriction. Given the existence of a less restrictive means, if the Legislature wished to improve its statute,
perhaps in the process

giving careful consideration to other alternatives, it then could do so.

The Government also contends a publicized §504 will be just as restrictive as §505, on the theory that the
cost of installing

blocking devices will outstrip the revenues from distributing Playboy’s programming and lead to its
cancellation. See 30

F. Supp. 2d, at 713. This conclusion rests on the assumption that a sufficient percentage of households,
informed of the

potential for signal bleed, would consider it enough of a problem to order blocking devices–an assumption
for which there is no

support in the record. Id., at 719. It should be noted, furthermore, that Playboy is willing to incur the costs
of an effective §504.

One might infer that Playboy believes an advertised §504 will be ineffective for its object, or one might
infer the company

believes the signal bleed problem is not widespread. In the absence of proof, it is not for the Court to
assume the former.

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may
not go perfectly

every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a
court should not

presume parents, given full information, will fail to act. If unresponsive operators are a concern, moreover,
a notice statute

could give cable operators ample incentive, through fines or other penalties for noncompliance, to respond
to blocking requests

in prompt and efficient fashion.

Having adduced no evidence in the District Court showing that an adequately advertised §504 would not
be effective to aid

desirous parents in keeping signal bleed out of their own households, the Government can now cite nothing
in the record to

support the point. The Government instead takes quite a different approach. After only an offhand
suggestion that the success

of a well-communicated §504 is "highly unlikely," the Government sets the point aside, arguing instead that
society’s

independent interests will be unserved if parents fail to act on that information. Brief for United States et
al. 32—33

("[U]nder … an enhanced version of Section 504, parents who had strong feelings about the matter could
see to it that their

children did not view signal bleed–at least in their own homes"); id., at 33 ("Even an enhanced version of
Section 504 would

succeed in blocking signal bleed only if, and after, parents affirmatively decided to avail themselves of the
means offered them

to do so. There would certainly be parents–perhaps a large number of parents–who out of inertia,
indifference, or distraction,

simply would take no action to block signal bleed, even if fully informed of the problem and even if
offered a relatively easy

solution"); Reply Brief for United States et al. 12 ([Society’s] interest would of course be served in
instances … in which

parents request blocking under an enhanced Section 504. But in cases in which parents fail to make use of
an enhanced Section

504 procedure out of distraction, inertia, or indifference, Section 505 would be the only means to protect
society’s independent

interest").

Even upon the assumption that the Government has an interest in substituting itself for informed and
empowered parents, its

interest is not sufficiently compelling to justify this widespread restriction on speech. The Government’s
argument stems from

the idea that parents do not know their children are viewing the material on a scale or frequency to cause
concern, or if so, that

parents do not want to take affirmative steps to block it and their decisions are to be superseded. The
assumptions have not

been established; and in any event the assumptions apply only in a regime where the option of blocking has
not been explained.

The whole point of a publicized §504 would be to advise parents that indecent material may be shown and
to afford them an

opportunity to block it at all times, even when they are not at home and even after 10 p.m. Time channeling
does not offer this

assistance. The regulatory alternative of a publicized §504, which has the real possibility of promoting
more open disclosure

and the choice of an effective blocking system, would provide parents the information needed to engage in
active supervision.

The Government has not shown that this alternative, a regime of added communication and support, would
be insufficient to

secure its objective, or that any overriding harm justifies its intervention.

There can be little doubt, of course, that under a voluntary blocking regime, even with adequate notice,
some children will be

exposed to signal bleed; and we need not discount the possibility that a graphic image could have a
negative impact on a young

child. It must be remembered, however, that children will be exposed to signal bleed under time channeling
as well. Time

channeling, unlike blocking, does not eliminate signal bleed around the clock. Just as adolescents may be
unsupervised outside

of their own households, it is hardly unknown for them to be unsupervised in front of the television set after
10 p.m. The record

is silent as to the comparative effectiveness of the two alternatives.

* * *

Basic speech principles are at stake in this case. When the purpose and design of a statute is to regulate
speech by reason of

its content, special consideration or latitude is not accorded to the Government merely because the law can
somehow be

described as a burden rather than outright suppression. We cannot be influenced, moreover, by the
perception that the

regulation in question is not a major one because the speech is not very important. The history of the law of
free expression is

one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. It
follows that all

content-based restrictions on speech must give us more than a moment’s pause. If television broadcasts can
expose children to

the real risk of harmful exposure to indecent materials, even in their own home and without parental
consent, there is a problem

the Government can address. It must do so, however, in a way consistent with First Amendment principles.
Here the

Government has not met the burden the First Amendment imposes.

The Government has failed to show that §505 is the least restrictive means for addressing a real problem;
and the District

Court did not err in holding the statute violative of the First Amendment. In light of our ruling, it is
unnecessary to address the

second question presented: whether the District Court was divested of jurisdiction to consider the
Government’s postjudgment

motions after the Government filed a notice of appeal in this Court. The

judgment of the District Court is affirmed.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

Section 505 of the Telecommunications Act of 1996, Pub. L. 104—104, 110 Stat. 136, 47 U.S.C. § 561
(1994 ed., Supp.

III), provides in relevant part:

"(a) Requirement

"In providing sexually explicit adult programming or other programming that is indecent on any channel of
its service primarily

dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully
scramble or otherwise fully

block the video and audio portion of such channel so that one not a subscriber to such channel or
programming does not

receive it.

"(b) Implementation

"Until a multichannel video programming distributor complies with the requirement set forth in subsection
(a) of this section,

the distributor shall limit the access of children to the programming referred to in that subsection by not
providing such

programming during the hours of the day (as determined by the Commission) when a significant number of
children are likely to

view it.

"(c) ‘Scramble’ defined

"As used in this section, the term ‘scramble’ means to rearrange the content of the signal of the
programming so that the

programming cannot be viewed or heard in an understandable manner."

Section 504 of the Telecommunications Act of 1996, Pub. L. 104—104, 110 Stat. 136, 47 U.S.C. § 560
(1994 ed., Supp.

III), provides in relevant part:

"(a) Subscriber request

"Upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or
otherwise fully block

the audio and video programming of each channel carrying such programming so that one not a subscriber
does not receive it.

"(b) ‘Scramble’ defined

"As used in this section, the term ‘scramble’ means to rearrange the content of the signal of the
programming so that the programming cannot be viewed or heard in an understandable manner."