Opinion of the Court
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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 Kennedy delivered the opinion of the Court.
This case presents a challenge to §505 of the Telecommunications Act of 1996, Pub. L.
104104, 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 Playboys 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 Playboys 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 Playboys 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 channels 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 laws 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
Playboys 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
714715. It agreed that
the interests the statute advanced were compelling but concluded the Government might
further those
interests in less restrictive
ways. Id., at 717720. 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 718720. At the same time, §504 was
content neutral and
would be less
restrictive of Playboys 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
719720. 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
91a92a. 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 Playboys
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 OConnor, 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 Playboys 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 Governments 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
Governments purpose, the
legislature must use that alternative. Reno, 521 U.S., at 874 ("[The CDAs
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, 210211 (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
804805 (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
130131. 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
876877. Compare
Rowan v. Post Office Dept., 397 U.S. 728, 729730 (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
contextSable
Communications and Reno, for instance, also note the affirmative steps necessary to obtain
access to
indecent material via the
media at issuebut 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 867868;
Boos,
485 U.S., at 320321. 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 listenerslisteners 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
719720. No one disputes that §504, which requires cable operators to block
undesired channels at
individual households
upon request, is narrowly tailored to the Governments 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
Governments 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 Governments goals. Id., at 715, 718719. It concluded that §504,
if publicized in an
adequate manner, could
be. Id., at 719720.
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, 770771 (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-persuasionoperative in all trialsmust 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 Courts 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 708709, 718. The District
Courts thorough discussion
exposes a central
weakness in the Governments 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 friends 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 friends 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 Courts express request for more specific evidence of the
problem, see 945 F.
Supp., at 779, n. 16,
the Government also presented an experts 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 708709. 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, VCRs, 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 Governments estimate failed to account for
these factors. Id., at
708709. 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. 1558615589 (1995). One of the measures 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
129130 ("[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, 875876, 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
Governments 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 Courts reliance, without proof, on a
"hypothetical, enhanced version of
Section 504." Brief for
United States et al. 32. It was not the District Courts 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 Playboys 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
devicesan 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
societys
independent interests will be unserved if parents fail to act on that information. Brief
for United States et
al. 3233
("[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 bleedat 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 parentsperhaps a large number of parentswho
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 ([Societys] 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
societys 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 Governments
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 moments 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
Governments 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. 104104, 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. 104104, 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."