Stevens, J., concurring
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 Stevens, concurring.
Because Justice Scalia has advanced an argument that the parties have not addressed, a
brief response is in
order. Relying on Ginzburg v. United States, 383 U.S. 463 (1966), Justice Scalia would
treat programs
whose content is, he assumes, protected by the First Amendment as though they were obscene
because of
the way they are advertised. The four separate dissenting opinions in Ginzburg, authored
by Justices Black,
Harlan, Douglas, and Stewart, amply demonstrated the untenable character of the Ginzburg
decision when
it was rendered. The Ginzburg theory of obscenity is a legal fiction premised upon a
logical
bait-and-switch; advertising a bareheaded dancer as "topless" might be
deceptive, but it would not make
her performance obscene.
As I explained in my dissent in Splawn v. California, 431 U.S. 595, 602 (1977), Ginzburg
was decided
before the Court extended First Amendment protection to commercial speech, Virginia Bd. of
Pharmacy v.
Virginia Citizens Consumer Council, Inc. , 425 U.S. 748 (1976). Justice Scalias
proposal is thus not only
anachronistic, it also overlooks a key premise upon which our commercial speech cases are
based. The
First Amendment assumes that, as a general matter, "information is not in itself
harmful, that people will
perceive their own best interests if only they are well enough informed, and that the best
means to that end
is to open the channels of communication rather than to close them." Id., at 770. The
very fact that the
programs marketed by Playboy are offensive to many viewers provides a justification for
protecting, not
penalizing, truthful statements about their content.