Breyer, J., dissenting

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 Breyer, with whom the Chief Justice, Justice O’Connor, and Justice Scalia join, dissenting.

This case involves the application, not the elucidation, of First Amendment principles. We apply
established First Amendment law to a statute that focuses upon the broadcast of "sexually explicit adult
programming" on AdulTVision, Adam & Eve, Spice, and Playboy cable channels. These channels are, as
the statute requires, "primarily dedicated to sexually-oriented programming." Telecommunications Act of
1996, Pub. L. 104—104, §505(a), 110 Stat. 136, 47 U.S.C. § 561(a) (1994 ed., Supp. III). Section 505
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 children’s 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 subscriber’s
home except on request. But the operators then implemented that decision with inexpensive technology.
Through signal "bleeding," the scrambling technology (either inadvertently or by way of enticement)
allowed non subscribers to see and hear what was going on. That is why

Congress decided to act.

In 1995, Senator Dianne Feinstein, the present statute’s legislative cosponsor, pointed out that "numerous
cable operators across the country are still automatically broadcasting sexually explicit programming into
households across America, regardless of whether parents want this or subscribers want it." 141 Cong.
Rec. 15588. She complained that the "industry has only taken baby steps to address this problem through
voluntary policies that simply recommend action," ibid., adding that the "problem is that there are no
uniform laws or regulations that govern such sexually explicit adult programming on cable television," id.,
at 15587. She consequently proposed, and Congress enacted, the present statute.

The statute is carefully tailored to respect viewer preferences. It regulates transmissions by creating two
"default rules" applicable unless the subscriber decides otherwise. Section 504 requires a cable operator
to "fully scramble" any channel (whether or not it broadcasts adult programming) if a subscriber asks not to
receive it. Section 505 requires a cable operator to "fully scramble" every adult channel unless a
subscriber asks to receive it. Taken together, the two provisions create a scheme that permits subscribers
to choose to see what they want. But each law creates a different "default" assumption about silent
subscribers. Section 504 assumes a silent subscriber wants to see the ordinary (non adult) channels that the
cable operator includes in the paid-for bundle sent into the home. Section 505 assumes that a silent
subscriber does not want to receive adult channels. Consequently, a subscriber wishing to view an adult
channel must "opt in," and specifically request that channel. See §505. A subscriber wishing not to view
any other channel (sent into the home) must "opt out." See §504.

The scheme addresses signal bleed but only indirectly. From the statute’s perspective signal
"bleeding"–i.e., a failure to fully "rearrange the content of the signal . . . so that the programming cannot be
viewed or heard in an understandable 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 majority’s 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, 737—753 (1996) (plurality opinion);
Pacifica Foundation,

supra, at 748—750; Reno, supra, at 887—889 (O’Connor, J., concurring in part and dissenting in part).
The

difference–between imposing a burden and enacting a ban–can 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 877—879
("The breadth of the

[statutue’s] coverage is wholly unprecedented… . [It] cover[s] large amounts of non pornographic material
with serious

educational or other value"); Butler, supra, at 381—384 (invalidating ban on books " ‘tending to the
corruption of the morals

of youth’ ").

With this background in mind, the reader will better understand my basic disagreement with each of the
Court’s two

conclusions.

II

The majority first concludes that the Government failed to prove the seriousness of the problem–receipt of
adult channels by

children whose parents did not request their broadcast. Ante, at 14—17. 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 Government’s expert took the number of homes subscribing to Playboy or Spice, multiplied by
the fraction of

cable households with children and the average number of children per household, and found 29 million
children are potentially

exposed to audio and video bleed from adult programming. Def. Exh. 82, 10 Record 11—12. Even
discounting by 25% for

systems that might be considered in full compliance, this left 22 million children in homes with faulty
scrambling systems. See id.,

at 12. And, of course, the record contains additional anecdotal evidence and the concerns expressed by
elected officials,

probative of a larger problem. See 30 F. Supp. 2d, at 709, and n. 10; see also 141 Cong. Rec. 15586
(1995).

I would add to this empirical evidence the majority’s own statement that "most cable operators had ‘no
practical choice but

to curtail’ " adult programming by switching to nighttime only transmission of adult channels. Ante, at 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 16—17.

If, as the majority suggests, the signal bleed problem is not significant, then there is also no significant
burden on speech

created by §505. The majority cannot have this evidence both ways. And if, given this logical difficulty and
the quantity of

empirical evidence, the majority still believes that the Government has not proved its case, then it imposes
a burden upon the

Government beyond that suggested in any other First Amendment case of which I am aware.

III

The majority’s second claim–that the Government failed to demonstrate the absence of a "less restrictive

alternative"–presents a closer question. The specific question is whether §504’s "opt-out" amounts to a
"less restrictive," but

similarly practical and effective, way to accomplish §505’s 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, 188—189 (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
Reno’s understanding of

less restrictive alternatives, ante, at 8, and it addresses the Governments’ effectiveness arguments, ante, at
18—22. I therefore

assume it continues to recognize their role as part of the test that it enunciates.

I turn then to the major point of disagreement. Unlike the majority, I believe the record makes clear that
§504’s opt-out is

not a similarly effective alternative. Section 504 (opt-out) and §505 (opt-in) work differently in order to
achieve very different

legislative objectives. Section 504 gives parents the power to tell cable operators to keep any channel out
of their home.

Section 505 does more. Unless parents explicitly consent, it inhibits the transmission of adult cable
channels to children whose

parents may be unaware of what they are watching, whose parents cannot easily supervise television
viewing habits, whose

parents do not know of their §504 "opt-out" rights, or whose parents are simply unavailable at critical
times. In this respect,

§505 serves the same interests as the laws that deny children access to adult cabarets or X-rated movies.
E.g., Del. Code

Ann., Tit. 11, §1365(i)(2) (1995); D. C. Code Ann. §22—2001(b)(1)(B) (1996). These laws, and §505, all
act in the

absence of direct parental supervision.

This legislative objective is perfectly legitimate. Where over 28 million school age children have both
parents or their only

parent in the work force, where at least 5 million children are left alone at home without supervision each
week, and where

children may spend afternoons and evenings watching television outside of the home with friends, §505
offers independent

protection for a large number of families. See U.S. Dept. of Education, Office of Research and
Improvement, Bringing

Education into the After-School Hours 3 (summer 1999). I could not disagree more when the majority
implies that the

Government’s independent interest in offering such protection–preventing, say, an 8-year-old child from
watching virulent

pornography without parental consent–might not be "compelling." Ante, at 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, 756—757 (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

Government’s objectives. As the majority observes, during the 14 months the Government was enjoined
from enforcing §505,

"fewer than 0.5% of cable subscribers requested full blocking" under §504. Ante, at 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 possibility–at least in respect to exposure, as discussed above. See supra, at 5—6. 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 504’s opt-out right
works only when

parents (1) become aware of their §504 rights, (2) discover that their children are watching
sexually-explicit signal "bleed," (3)

reach their cable operator and ask that it block the sending of its signal to their home, (4) await installation
of an individual

blocking device, and, perhaps (5) (where the block fails or the channel number changes) make a new
request. Better notice of

§504 rights does little to help parents discover their children’s viewing habits (step 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. 96—94, pp. 17—18 (D. Del., Dec. 5,
1997) ("It’s like

calling any utilities; you sit there, and you wait and wait on the phone . … [It took] [t]hree weeks,
numerous phone

calls… . [E]very time I call Cox Cable … I get different stories"); Telephonic Deposition of M. Bennett, at
10—11 (D. Del.,

Dec. 9, 1997) ("After two [failed installations,] no, I don’t recall calling them again. I just said well, I
guess this is something I’m

going to have to live with").

Further, the District Court’s actual plan for "better notice"–the only plan that makes concrete the majority’s
"better notice"

requirement–is fraught with difficulties. The District Court ordered Playboy to insist that cable operators
place notice of §504

"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 Playboy’s costs to the point that Playboy would be forced off the air
entirely, 30 F. Supp. 2d,

at 713–a consequence that would not seem to further anyone’s interest in free speech. The majority, resting
on its own earlier

conclusion that signal bleed is not widespread, denies any likelihood that more than 6% of viewers would
need §504. But that

earlier conclusion is unsound. See supra, at 5—6. 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 Playboy’s knowledge that §504, even with better notice, will not work. Section 504 is
not a similarly

effective alternative to §505 (in respect to the Government’s interest in protecting children), unless more
than a minimal number

of viewers actually use it; yet the economic evidence shows that if more than 6% do so, Playboy’s
programming would be

totally eliminated. The majority provides no answer to this argument in its opinion–and this evidence is
sufficient in and of itself

to dispose of this case.

Of course, it is logically possible that "better notice" will bring about near perfect parental knowledge (of
what children

watch and §504 opt-out rights), that cable operators will respond rapidly to blocking requests, and that still
94% of all

informed parents will decided not to have adult channels blocked for free. But the probability that this
remote possibility will

occur is neither a "draw" nor a "tie." Ante, at 14. And that fact is sufficient for the Government to have met
its burden of proof.

All these considerations show that §504’s opt-out, even with the Court’s plan for "better notice," is not
similarly effective in

achieving the legitimate goals that the statute was enacted to serve.

IV

Section 505 raises the cost of adult channel broadcasting. In doing so, it restricts, but does not ban adult
speech. Adults may

continue to watch adult channels, though less conveniently, by watching at night, recording programs with a
VCR, or by

subscribing to digital cable with better blocking systems. Cf. Renton, 475 U.S. at

53—55 (upholding zoning rules that force potential adult theatre patrons to travel to less convenient
locations). The

Government’s justification for imposing this restriction–limiting the access of children to channels that
broad-

cast virtually 100% "sexually explicit" material–is "compelling." The record shows no similarly effective,
less restrictive

alternative. Consequently §505’s restriction,

viewed in light of the proposed alternative, is proportionate to need. That is to say, it restricts speech no
more

than necessary to further that compelling need. Taken

together, these considerations lead to the conclusion that

§505 is lawful.

I repeat that my disagreement with the majority lies in the fact that, in my view, the Government has
satisfied its burden of

proof. In particular, it has proved both the existence of a serious problem and the comparative
ineffectiveness of §504 in

resolving that problem. This disagreement is not about allocation of First Amendment burdens of proof,
basic First Amendment

principle nor the importance of that Amendment to our scheme of Government. See ante, at 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 pornography–but will remain ill served by the Court’s chosen remedy. Worse still, the logic of
the majority’s

"505/504" comparison (but not its holding that the problem has not been established) would seem to apply
whether "bleeding"

or totally unscrambled transmission is at issue. If so, the public would have to depend solely upon the
voluntary conduct of

cable channel operators to avert considerably greater harm. Case law does not mandate the Court’s result.
To the contrary,

as I have pointed out, our prior cases recognize that, where the protection of children is at issue, the First
Amendment poses a

barrier that properly is high, but not insurmountable. It is difficult to reconcile today’s decision with our
foundational cases that

have upheld similar laws, such as FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Ginsberg v. New
York, 390 U.S.

629 (1968). It is not difficult to distinguish our cases striking down such laws–either because they applied
far more broadly than

the narrow regulation of adult channels here, see, e.g., Reno v. American Civil Liberties Union, 521 U.S.
844 (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 753—760.

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.