Breyer, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 981682
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 Breyer, with whom the Chief Justice, Justice OConnor, and Justice Scalia
join, dissenting.
This case involves the application, not the elucidation, of First Amendment principles. We
apply
established First Amendment law to a statute that focuses upon the broadcast of
"sexually explicit adult
programming" on AdulTVision, Adam & Eve, Spice, and Playboy cable channels. These
channels are, as
the statute requires, "primarily dedicated to sexually-oriented programming."
Telecommunications Act of
1996, Pub. L. 104104, §505(a), 110 Stat. 136, 47 U.S.C. § 561(a) (1994 ed., Supp.
III). Section 505
forbids cable operators from sending these adult channels into the homes of viewers who do
not request
them. In practice, it requires a significant number of cable operators either to upgrade
their scrambling
technology or to avoid broadcasting these channels during daylight and evening hours (6
a.m. to 10 p.m.).
We must decide whether the First Amendment permits Congress to enact this statute.
The basic, applicable First Amendment principles are not at issue. The Court must examine
the statute
before us with great care to determine whether its speech-related restrictions are
justified by a "compelling
interest," namely an interest in limiting childrens access to sexually explicit
material. Indoing so, it
recognizes that the legislature must respect adults viewing freedom by
"narrowly tailoring" the statute so
that it restricts no more speech than necessary, and choosing instead any alternative that
would further the
compelling interest in a "less restrictive" but "at least as
effective" way. See ante, at 8; Reno v. American
Civil Liberties Union, 521 U.S. 844, 874
(1997).
Applying these principles, the majority invalidates §505 for two reasons. It finds that
(1) the "Government
has failed to establish a pervasive, nationwide problem justifying its nationwide daytime
speech ban,"
ante, at 18, and (2) the "Government
failed to prove" the
"ineffective[ness]" of an alternative, namely,
notified viewers requesting that the broadcaster of sexually explicit material stop
sending it, ante, at 18. In
my view, the record supports neither reason.
I
At the outset, I would describe the statutory scheme somewhat differently than does the
majority. I would
emphasize three background points. First, the statutory scheme reflects more than a
congressional effort to
control incomplete scrambling.
Previously, federal law had left cable operators free to decide whether, when, and how to
transmit adult
channels. Most channel operators on their own had decided not to send adult channels into
a subscribers
home except on request. But the operators then implemented that decision with inexpensive
technology.
Through signal "bleeding," the scrambling technology (either inadvertently or by
way of enticement)
allowed non subscribers to see and hear what was going on. That is why
Congress decided to act.
In 1995, Senator Dianne Feinstein, the present statutes legislative cosponsor,
pointed out that "numerous
cable operators across the country are still automatically broadcasting sexually explicit
programming into
households across America, regardless of whether parents want this or subscribers want
it." 141 Cong.
Rec. 15588. She complained that the "industry has only taken baby steps to address
this problem through
voluntary policies that simply recommend action," ibid., adding that the
"problem is that there are no
uniform laws or regulations that govern such sexually explicit adult programming on cable
television," id.,
at 15587. She consequently proposed, and Congress enacted, the present statute.
The statute is carefully tailored to respect viewer preferences. It regulates
transmissions by creating two
"default rules" applicable unless the subscriber decides otherwise. Section 504
requires a cable operator
to "fully scramble" any channel (whether or not it broadcasts adult programming)
if a subscriber asks not to
receive it. Section 505 requires a cable operator to "fully scramble" every
adult channel unless a
subscriber asks to receive it. Taken together, the two provisions create a scheme that
permits subscribers
to choose to see what they want. But each law creates a different "default"
assumption about silent
subscribers. Section 504 assumes a silent subscriber wants to see the ordinary (non adult)
channels that the
cable operator includes in the paid-for bundle sent into the home. Section 505 assumes
that a silent
subscriber does not want to receive adult channels. Consequently, a subscriber wishing to
view an adult
channel must "opt in," and specifically request that channel. See §505. A
subscriber wishing not to view
any other channel (sent into the home) must "opt out." See §504.
The scheme addresses signal bleed but only indirectly. From the statutes perspective
signal
"bleeding"i.e., a failure to fully "rearrange the content of the
signal . . . so that the programming cannot be
viewed or heard in an understandable manner,"
§505(c),amounts to transmission into a home. Hence "bleeding" violates
the statute whenever a clear
transmission of an unrequested adult channel would violate the statute.
Second, the majoritys characterization of this statutory scheme as
"prohibit[ing]
speech" is an
exaggeration. Ante, at 7.
Rather, the statute places a burden on adult channel speech by requiring the relevant
cable operator either
to use better
scrambling technology, or, if that technology is too expensive, to broadcast only between
10 p.m. and 6
a.m. Laws that burden
speech, say, by making speech less profitable, may create serious First Amendment issues,
but they are not
the equivalent of an
absolute ban on speech itself. Cf. Nixon v. Shrink Missouri Government PAC, 528 U.S. ___
(2000). Thus,
this Court has
upheld laws that do not ban the access of adults to sexually explicit speech, but burden
that access through
geographical or
temporal zoning. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); FCC v.
Pacifica
Foundation, 438 U.S.
726 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). This Court has also
recognized
that material the
First Amendment guarantees adults the right to see may not be suitable for children. And
it has
consequently held that
legislatures maintain a limited power to protect children by restricting access to, but
not banning, adult
material. Compare
Ginsberg v. New York, 390 U.S. 629 (1968) (upholding ban on sale of pornographic magazines
to minors),
with Butler v.
Michigan, 352 U.S. 380 (1957) (invalidating ban on all books unfit for minors); see also
Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737753 (1996) (plurality
opinion);
Pacifica Foundation,
supra, at 748750; Reno, supra, at 887889 (OConnor, J., concurring in
part and dissenting in part).
The
differencebetween imposing a burden and enacting a bancan matter even when
strict First Amendment
rules are at issue.
Third, this case concerns only the regulation of commercial actors who broadcast
"virtually 100% sexually
explicit" material. 30
F. Supp. 2d 702, 707 (Del. 1998). The channels do not broadcast more than trivial amounts
of more serious
material such as
birth control information, artistic images, or the visual equivalents of classical or
serious literature. This
case therefore does not
present the kind of narrow tailoring concerns seen in other cases. See, e.g., Reno, 521
U.S., at 877879
("The breadth of the
[statutues] coverage is wholly unprecedented
. [It] cover[s] large amounts of
non pornographic material
with serious
educational or other value"); Butler, supra, at 381384 (invalidating ban on
books " tending to the
corruption of the morals
of youth ").
With this background in mind, the reader will better understand my basic disagreement with
each of the
Courts two
conclusions.
II
The majority first concludes that the Government failed to prove the seriousness of the
problemreceipt of
adult channels by
children whose parents did not request their broadcast. Ante, at 1417. This claim is
flat-out wrong. For
one thing, the parties
concede that basic RF scrambling does not scramble the audio portion of the program. 30 F.
Supp. 2d, at
707. For another,
Playboy itself conducted a survey of cable operators who were asked: "Is your system
in full compliance
with Section 505 (no
discernible audio or video bleed)?" To this question, 75% of cable operators answered
"no." See Def.
Exh. 254, 13 Record 2.
Further, the Governments expert took the number of homes subscribing to Playboy or
Spice, multiplied by
the fraction of
cable households with children and the average number of children per household, and found
29 million
children are potentially
exposed to audio and video bleed from adult programming. Def. Exh. 82, 10 Record
1112. Even
discounting by 25% for
systems that might be considered in full compliance, this left 22 million children in
homes with faulty
scrambling systems. See id.,
at 12. And, of course, the record contains additional anecdotal evidence and the concerns
expressed by
elected officials,
probative of a larger problem. See 30 F. Supp. 2d, at 709, and n. 10; see also 141 Cong.
Rec. 15586
(1995).
I would add to this empirical evidence the majoritys own statement that "most
cable operators had no
practical choice but
to curtail " adult programming by switching to nighttime only transmission of
adult channels. Ante, at 4
(emphasis added)
(quoting 30 F. Supp. 2d, at 711). If signal bleed is not a significant empirical problem,
then why, in light of
the cost of
its cure, must so many cable operators switch to night time hours? There is no realistic
answer to this
question. I do not
think it realistic to imagine that signal bleed occurs just enough to make cable operators
skittish, without
also significantly
exposing children to these images. See ante, at 1617.
If, as the majority suggests, the signal bleed problem is not significant, then there is
also no significant
burden on speech
created by §505. The majority cannot have this evidence both ways. And if, given this
logical difficulty and
the quantity of
empirical evidence, the majority still believes that the Government has not proved its
case, then it imposes
a burden upon the
Government beyond that suggested in any other First Amendment case of which I am aware.
III
The majoritys second claimthat the Government failed to demonstrate the
absence of a "less restrictive
alternative"presents a closer question. The specific question is whether
§504s "opt-out" amounts to a
"less restrictive," but
similarly practical and effective, way to accomplish §505s child-protecting
objective. As Reno tells us, a
"less restrictive
alternative" must be "at least as effective in achieving the legitimate purpose
that the statute was enacted to
serve." 521 U.S., at
874.
The words I have just emphasized, "similarly" and effective," are critical.
In an appropriate case they ask a
judge not to
apply First Amendment rules mechanically, but to decide whether, in light of the benefits
and potential
alternatives, the statute
works speech-related harm (here to adult speech) out of proportion to the benefits that
the statute seeks to
provide (here, child
protection).
These words imply a degree of leeway, however small, for the legislature when it chooses
among possible
alternatives in light
of predicted comparative effects. Without some such empirical leeway, the undoubted
ability of lawyers
and judges to imagine
some kind of slightly less drastic or restrictive an approach would make it impossible to
write laws that
deal with the harm that
called the statute into being. As Justice Blackmun pointed out, a "judge would be
unimaginative indeed if
he could not come up
with something a little less drastic or a little less restrictive
in almost any situation, and thereby enable
himself to vote to strike
legislation down." Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S.
173, 188189 (1979)
(concurring
opinion). Used without a sense of the practical choices that face legislatures, "the
test merely announces an
inevitable [negative]
result, and the test is no test at all." Id., at 188.
The majority, in describing First Amendment jurisprudence, scarcely mentions the words
"at least as
effective"a rather
surprising omission since they happen to be what this case is all about. But the majority
does refer to
Renos understanding of
less restrictive alternatives, ante, at 8, and it addresses the Governments
effectiveness arguments, ante, at
1822. I therefore
assume it continues to recognize their role as part of the test that it enunciates.
I turn then to the major point of disagreement. Unlike the majority, I believe the record
makes clear that
§504s opt-out is
not a similarly effective alternative. Section 504 (opt-out) and §505 (opt-in) work
differently in order to
achieve very different
legislative objectives. Section 504 gives parents the power to tell cable operators to
keep any channel out
of their home.
Section 505 does more. Unless parents explicitly consent, it inhibits the transmission of
adult cable
channels to children whose
parents may be unaware of what they are watching, whose parents cannot easily supervise
television
viewing habits, whose
parents do not know of their §504 "opt-out" rights, or whose parents are simply
unavailable at critical
times. In this respect,
§505 serves the same interests as the laws that deny children access to adult cabarets or
X-rated movies.
E.g., Del. Code
Ann., Tit. 11, §1365(i)(2) (1995); D. C. Code Ann. §222001(b)(1)(B) (1996). These
laws, and §505, all
act in the
absence of direct parental supervision.
This legislative objective is perfectly legitimate. Where over 28 million school age
children have both
parents or their only
parent in the work force, where at least 5 million children are left alone at home without
supervision each
week, and where
children may spend afternoons and evenings watching television outside of the home with
friends, §505
offers independent
protection for a large number of families. See U.S. Dept. of Education, Office of Research
and
Improvement, Bringing
Education into the After-School Hours 3 (summer 1999). I could not disagree more when the
majority
implies that the
Governments independent interest in offering such protectionpreventing, say,
an 8-year-old child from
watching virulent
pornography without parental consentmight not be "compelling." Ante, at
19. No previous case in which
the protection of
children was at issue has suggested any such thing. Indeed, they all say precisely the
opposite. See Reno,
521 U.S., at 865
(State has an "independent interest in the well-being of its youth"); Denver
Area, 518 U.S., at 743; New
York v. Ferber, 458
U.S. 747, 756757 (1982); Ginsberg, 390 U.S., at 640; Prince v. Massachusetts, 321
U.S. 158, 165
(1944). They make
clear that Government has a compelling interest in helping parents by preventing minors
from accessing
sexually explicit
materials in the absence of parental supervision. See Ginsberg, supra, at 640.
By definition, §504 does nothing at all to further the compelling interest I have just
described. How then is
it a similarly
effective §505 alternative?
The record, moreover, sets forth empirical evidence showing that the two laws are not
equivalent with
respect to the
Governments objectives. As the majority observes, during the 14 months the
Government was enjoined
from enforcing §505,
"fewer than 0.5% of cable subscribers requested full blocking" under §504.
Ante, at 11. The majority
describes this public
reaction as "a collective yawn," ibid., adding that the Government failed to
prove that the "yawn" reflected
anything other than
the lack of a serious signal bleed problem or a lack of notice which better information
about §504 might
cure. The record
excludes the first possibilityat least in respect to exposure, as discussed above.
See supra, at 56. And I
doubt that the
public, though it may well consider the view-
ing habits of adults a matter of personal choice, would "yawn" when the exposure
in question concerns
young children, the
absence of parental consent, and the sexually explicit material here at issue. See ante,
at 3 (Scalia, J.,
dissenting).
Neither is the record neutral in respect to the curative power of better notice. Section
504s opt-out right
works only when
parents (1) become aware of their §504 rights, (2) discover that their children are
watching
sexually-explicit signal "bleed," (3)
reach their cable operator and ask that it block the sending of its signal to their home,
(4) await installation
of an individual
blocking device, and, perhaps (5) (where the block fails or the channel number changes)
make a new
request. Better notice of
§504 rights does little to help parents discover their childrens viewing habits
(step two). And it does
nothing at all in respect to
steps three through five. Yet the record contains considerable evidence that those
problems matter, i.e.,
evidence of endlessly
delayed phone call responses, faulty installations, blocking failures, and other mishaps,
leaving those steps
as significant §504
obstacles. See, e.g., Deposition of J. Cavalier in Civ. Action No. 9694, pp.
1718 (D. Del., Dec. 5,
1997) ("Its like
calling any utilities; you sit there, and you wait and wait on the phone .
[It
took] [t]hree weeks,
numerous phone
calls
. [E]very time I call Cox Cable
I get different stories");
Telephonic Deposition of M. Bennett, at
1011 (D. Del.,
Dec. 9, 1997) ("After two [failed installations,] no, I dont recall calling
them again. I just said well, I
guess this is something Im
going to have to live with").
Further, the District Courts actual plan for "better notice"the only
plan that makes concrete the majoritys
"better notice"
requirementis fraught with difficulties. The District Court ordered Playboy to
insist that cable operators
place notice of §504
"inserts in monthly billing statements, barker channels
and on-air
advertising." 30 F. Supp. 2d, at 719.
But how can one say
that placing one more insert in a monthly billing statement stuffed with others, or
calling additional
attention to adult channels
through a "notice" on "barker" channels, will make more than a small
difference? More importantly, why
would doing so not
interfere to some extent with the cable operators own freedom to decide what to
broadcast? And how is
the District Court to
supervise the contracts with thousands of cable operators that are to embody this
requirement?
Even if better notice did adequately inform viewers of their §504 rights, exercise of
those rights by more
than 6% of the
subscriber base would itself raise Playboys costs to the point that Playboy would be
forced off the air
entirely, 30 F. Supp. 2d,
at 713a consequence that would not seem to further anyones interest in free
speech. The majority, resting
on its own earlier
conclusion that signal bleed is not widespread, denies any likelihood that more than 6% of
viewers would
need §504. But that
earlier conclusion is unsound. See supra, at 56. The majority also relies on the
fact that Playboy,
presumably aware of its
own economic interests, "is willing to incur the costs of an effective §504."
Ante, at 19. Yet that denial, as
the majority admits,
may simply reflect Playboys knowledge that §504, even with better notice, will not
work. Section 504 is
not a similarly
effective alternative to §505 (in respect to the Governments interest in protecting
children), unless more
than a minimal number
of viewers actually use it; yet the economic evidence shows that if more than 6% do so,
Playboys
programming would be
totally eliminated. The majority provides no answer to this argument in its
opinionand this evidence is
sufficient in and of itself
to dispose of this case.
Of course, it is logically possible that "better notice" will bring about near
perfect parental knowledge (of
what children
watch and §504 opt-out rights), that cable operators will respond rapidly to blocking
requests, and that still
94% of all
informed parents will decided not to have adult channels blocked for free. But the
probability that this
remote possibility will
occur is neither a "draw" nor a "tie." Ante, at 14. And that fact is
sufficient for the Government to have met
its burden of proof.
All these considerations show that §504s opt-out, even with the Courts plan
for "better notice," is not
similarly effective in
achieving the legitimate goals that the statute was enacted to serve.
IV
Section 505 raises the cost of adult channel broadcasting. In doing so, it restricts, but
does not ban adult
speech. Adults may
continue to watch adult channels, though less conveniently, by watching at night,
recording programs with a
VCR, or by
subscribing to digital cable with better blocking systems. Cf. Renton, 475 U.S. at
5355 (upholding zoning rules that force potential adult theatre patrons to travel to
less convenient
locations). The
Governments justification for imposing this restrictionlimiting the access of
children to channels that
broad-
cast virtually 100% "sexually explicit" materialis "compelling."
The record shows no similarly effective,
less restrictive
alternative. Consequently §505s restriction,
viewed in light of the proposed alternative, is proportionate to need. That is to say, it
restricts speech no
more
than necessary to further that compelling need. Taken
together, these considerations lead to the conclusion that
§505 is lawful.
I repeat that my disagreement with the majority lies in the fact that, in my view, the
Government has
satisfied its burden of
proof. In particular, it has proved both the existence of a serious problem and the
comparative
ineffectiveness of §504 in
resolving that problem. This disagreement is not about allocation of First Amendment
burdens of proof,
basic First Amendment
principle nor the importance of that Amendment to our scheme of Government. See ante, at
22. First
Amendment standards
are rigorous. They safeguard speech. But they also permit Congress to enact a law that
increases the costs
associated with
certain speech, where doing so serves a compelling interest that cannot be served through
the adoption of a
less restrictive,
similarly effective alternative. Those standards at their strictest make it difficult for
the Government to
prevail. But they do not
make it impossible for the Government to prevail.
The majority here, however, has applied those standards without making a realistic
assessment of the
alternatives. It thereby
threatens to leave Congress without power to help the millions of parents who do not want
to expose their
children to
commercial pornographybut will remain ill served by the Courts chosen remedy.
Worse still, the logic of
the majoritys
"505/504" comparison (but not its holding that the problem has not been
established) would seem to apply
whether "bleeding"
or totally unscrambled transmission is at issue. If so, the public would have to depend
solely upon the
voluntary conduct of
cable channel operators to avert considerably greater harm. Case law does not mandate the
Courts result.
To the contrary,
as I have pointed out, our prior cases recognize that, where the protection of children is
at issue, the First
Amendment poses a
barrier that properly is high, but not insurmountable. It is difficult to reconcile
todays decision with our
foundational cases that
have upheld similar laws, such as FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and
Ginsberg v. New
York, 390 U.S.
629 (1968). It is not difficult to distinguish our cases striking down such
lawseither because they applied
far more broadly than
the narrow regulation of adult channels here, see, e.g., Reno v. American Civil Liberties
Union, 521 U.S.
844 (1997),
imposed a total ban on a form of adult speech, see, e.g., Sable Communications of Cal.,
Inc. v. FCC, 492
U.S. 115 (1989);
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), or because a less restrictive,
similarly
effective alternative was
otherwise available, see, e.g., Denver Area, 518 U.S., at 753760.
Nor is it a satisfactory answer to say, as does Justice Thomas, that the Government
remains free to
prosecute under the
obscenity laws. Ante, at 1. The obscenity exception permits censorship of communication
even among
adults. See, e.g., Miller
v. California, 413 U.S. 15 (1973). It must be kept narrow lest the Government improperly
interfere with the
communication
choices that adults
have freely made. To rely primarily upon law that bans speech for adults is to overlook
the special need to
protect children.
Congress has taken seriously the importance of maintaining adult access to the sexually
explicit channels
here at issue. It has
tailored the restrictions to minimize their impact upon adults while offering parents help
in keeping
unwanted transmissions from
their children. By finding "adequate alternatives" where there are none, the
Court reduces Congress
protective power to the
vanishing point. That is not what the First Amendment demands.
I respectfully dissent.