UNITED STATES et al. v. PLAYBOY ENTERTAIN- MENT GROUP, INC.

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803 OCTOBER TERM, 1999
Syllabus
UNITED STATES et al. v. PLAYBOY ENTERTAIN-
MENT GROUP, INC.
appeal from the united states district court for the
district of delaware
No. 98–1682. Argued November 30, 1999—Decided May 22, 2000
Section 505 of the Telecommunications Act of 1996 requires cable televi-
sion operators providing 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 chil-
dren are unlikely to be viewing, set by administrative regulation as
between 10 p.m. and 6 a.m. Even before § 505’s enactment, cable opera-
tors used signal scrambling to limit access to certain programs to paying
customers. 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 § 505, the majority of cable operators adopted
the “time channeling” approach, so that, for two-thirds of the day, no
viewers in their service areas could receive the programming in ques-
tion. Appellee Playboy Entertainment Group, Inc., filed this suit chal-
lenging § 505’s constitutionality. A three-judge District Court con-
cluded that § 505’s content-based restriction on speech violates the First
Amendment because the Government might further its interests in less
restrictive ways. One plausible, less restrictive alternative could be
found in § 504 of the Act, which requires a cable operator, “[u]pon re-
quest by a cable service subscriber . . . without charge, [to] fully scram-
ble or otherwise fully block” any channel the subscriber does not wish
to receive. As long as subscribers knew about this opportunity, the
court reasoned, § 504 would provide as much protection against un-
wanted programming as would § 505.
Held: Because the Government failed to prove § 505 is the least restrictive
means for addressing a real problem, the District Court did not err in
holding the statute violative of the First Amendment. Pp. 811–827.
(a) Two points should be understood: (1) Many adults would find the
material at issue highly offensive, and considering 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; and (2) Playboy’s programming has First Amendment protection.

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804 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Syllabus
Section 505 is a content-based regulation. It also singles out particular
programmers for regulation. It is of no moment that the statute does
not impose a complete prohibition. Since § 505 is content based, it can
stand only if it satisfies strict scrutiny. E. g., Sable Communications
of Cal., Inc. v. FCC, 492 U. S. 115, 126. It must be narrowly tailored
to promote a compelling Government interest, and if a less restrictive
alternative would serve the Government’s purpose, the legislature must
use that alternative. Cable television, like broadcast media, presents
unique problems, but 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 obtained by a less restrictive alter-
native. There is, moreover, a key difference between cable television
and the broadcasting media: Cable systems have the capacity to block
unwanted channels on a household-by-household basis. Targeted block-
ing is less restrictive than banning, and the Government cannot ban
speech if targeted blocking is a feasible and effective means of further-
ing its compelling interests. Pp. 811–815.
(b) No one disputes that § 504 is narrowly tailored to the Govern-
ment’s goal of supporting parents who want sexually explicit channels
blocked. The question here is whether § 504 can be effective. Despite
empirical evidence that § 504 generated few requests for household-by-
household blocking during a period when it was the sole federal blocking
statute in effect, the District Court correctly concluded that § 504, if
publicized in an adequate manner, could serve as an effective, less re-
strictive means of reaching the Government’s goals. When the Govern-
ment restricts speech, the Government bears the burden of proving the
constitutionality of its actions. E. g., Greater New Orleans Broad-
casting Assn., Inc. v. United States, 527 U. S. 173, 183. Of three expla-
nations for the lack of individual blocking requests under § 504—(1) indi-
vidual blocking might not be an effective alternative, due to technologi-
cal or other limitations; (2) although an adequately advertised blocking
provision might have been effective, § 504 as written does not require
sufficient notice to make it so; and (3) the actual signal bleed problem
might be far less of a concern than the Government at first had sup-
posed—the Government had 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, and the record was
not clear as to whether enough notice had been issued to give § 504 a
fighting chance. Unless the District Court’s findings are clearly errone-
ous, the tie goes to free expression. With regard to signal bleed itself,
the District Court’s thorough discussion exposes a central weakness in
the Government’s proof: There is little hard evidence of how widespread

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Syllabus
or how serious the problem is. 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. Under § 505, sanc-
tionable signal bleed can include instances as fleeting as an image ap-
pearing on a screen for just a few seconds. The First Amendment re-
quires a more careful assessment and characterization of an evil in order
to justify a regulation as sweeping as this. The Government has failed
to establish a pervasive, nationwide problem justifying its nationwide
daytime speech ban. The Government also failed to prove § 504, with
adequate notice, would be ineffective. 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). 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. The Government also argues society’s independent interests
will be unserved if parents fail to act on that information. Even upon
the assumption that the Government has an interest in substituting it-
self for informed and empowered parents, its interest is not sufficiently
compelling to justify this widespread restriction on speech. The regu-
latory 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 ac-
tive supervision. The Government has not shown that this alternative
would be insufficient to secure its objective, or that any overriding harm
justifies its intervention. Although, under a voluntary blocking regime,
even with adequate notice, some children will be exposed to signal
bleed, children will also be exposed under time channeling, which does
not eliminate signal bleed around the clock. The record is silent as to
the comparative effectiveness of the two alternatives. Pp. 816–826.
30 F. Supp. 2d 702, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., post, p. 828,
and Thomas, J., post, p. 829, filed concurring opinions. Scalia, J., filed
a dissenting opinion, post, p. 831. Breyer, J., filed a dissenting opinion,
in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined, post,
p. 835.
James A. Feldman argued the cause for appellants. With
him on the briefs were Solicitor General Waxman, Acting

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806 UNITED STATES v. PLAYBOY ENTERTAINMENT
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Opinion of the Court
Assistant Attorney General Schultz, Deputy Solicitor Gen-
eral Kneedler, Jacob M. Lewis, Edward Himmelfarb, and
Christopher J. Wright.
Robert Corn-Revere argued the cause for appellees. With
him on the brief were Jean S. Moore and Burton Joseph.*
Justice Kennedy delivered the opinion of the Court.
This case presents a challenge to § 505 of the Telecommuni-
cations Act of 1996, Pub. L. 104–104, 110 Stat. 136, 47 U. S. C.
§ 561 (1994 ed., Supp. III). Section 505 requires cable televi-
sion operators who provide channels “primarily dedicated to
sexually-oriented programming” either to “fully scramble or
otherwise fully block” those channels or to limit their trans-
mission 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, sig-
nal 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. Scram-
bling 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
*Janet M. LaRue, Paul J. McGeady, and Bruce Taylor filed a brief for
the Family Research Council et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American
Booksellers Foundation for Free Expression et al. by Michael A. Bam-
berger; for the Media Institute by Laurence H. Winer; for the National
Cable Television Association by Daniel L. Brenner and Michael S.
Schooler; for Sexuality Scholars, Researchers, Educators, and Therapists
by Marjorie Heins and Joan E. Bertin; and for the Thomas Jefferson
Center for the Protection of Free Expression by J. Joshua Wheeler.

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Opinion of the Court
eliminate altogether the transmission of the targeted pro-
gramming 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 program-
ming, 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 legis-
lation 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 alter-
native 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 pro-
grams for adult television networks, including Playboy Tele-
vision and Spice. Playboy transmits its programming to
cable television operators, who retransmit it to their sub-
scribers, either through monthly subscriptions to premium
channels or on a so-called “pay-per-view” basis. Cable oper-
ators transmit Playboy’s signal, like other premium channel
signals, in scrambled form. The operators then provide
paying subscribers with an “addressable converter,” a box
placed on the home television set. The converter permits
the viewer to see and hear the descrambled signal. It is
conceded that almost all of Playboy’s programming consists
of sexually explicit material as defined by the statute.
The statute was enacted because not all scrambling tech-
nology is perfect. Analog cable television systems may use
either “RF” or “baseband” scrambling systems, which may
not prevent signal bleed, so discernible pictures may ap-
pear from time to time on the scrambled screen. Further-
more, the listener might hear the audio portion of the
program.

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Opinion of the Court
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 pre-
sents 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 scram-
bling, viewers who have not paid to receive Playboy’s chan-
nels may happen across discernible images of a sexually ex-
plicit 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 phe-
nomenon. As noted, the statute and its implementing regu-
lations require cable operators either to scramble a sexually
explicit channel in full or to limit the channel’s programming
to the hours between 10 p.m. and 6 a.m. 47 U. S. C. § 561
(1994 ed., Supp. III); 47 CFR § 76.227 (1999). Section 505
was added by floor amendment, without significant debate, to
the Telecommunications Act of 1996 (Act), a major legislative
effort designed “to reduce regulation and encourage ‘the
rapid deployment of new telecommunications technologies.’ ”
Reno v. American Civil Liberties Union, 521 U. S. 844, 857
(1997) (quoting 110 Stat. 56). “The Act includes seven Ti-
tles, 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 Representa-
tives.” 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).

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On March 7, 1996, Playboy obtained a temporary restrain-
ing 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). Play-
boy sought a declaration that § 505 violates the Constitution
and an injunction prohibiting the law’s enforcement. The
District Court denied Playboy a preliminary injunction, 945
F. Supp. 772 (Del. 1996), and we summarily affirmed, 520
U. S. 1141 (1997). The TRO was lifted, and the Federal
Communications Commission announced it would begin en-
forcing § 505 on May 18, 1997. In re Implementation of Sec-
tion 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] pro-
gramming during the [regulated] sixteen hours or risk the
penalties imposed . . . if any audio or video signal bleed oc-
cur[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 re-
striction of communication, with a corresponding reduction
in Playboy’s revenues. Ibid.
In March 1998, the District Court held a full trial and con-
cluded that § 505 violates the First Amendment. Id., at 702.
The District Court observed that § 505 imposed a content-
based restriction on speech. Id., at 714–715. It agreed that
the interests the statute advanced were compelling but con-
cluded the Government might further those interests in less
restrictive ways. Id., at 717–720. One plausible, less re-
strictive 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

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Opinion of the Court
scramble or otherwise fully block” any channel the sub-
scriber 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 pro-
vide as much protection against unwanted programming as
would § 505. 30 F. Supp. 2d, at 718–720. At the same time,
§ 504 was content neutral and would be less restrictive of
Playboy’s First Amendment rights. Ibid.
The court described what “adequate notice” would in-
clude, 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 par-
ents’ 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 program-
ming.” Ibid.
The court added that this notice could be “conveyed on a
regular basis, at reasonable intervals,” and could include no-
tice 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 en-
joined its enforcement. Id., at 719–720. The court also re-
quired Playboy to insist on these notice provisions in its con-
tracts with cable operators. Ibid.
The United States filed a direct appeal in this Court pursu-
ant to § 561. The District Court thereafter dismissed for

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Opinion of the Court
lack of jurisdiction two post-trial motions filed by the Gov-
ernment. App. to Juris. Statement 91a–92a. We noted
probable jurisdiction, 527 U. S. 1021 (1999), and now affirm.
II
Two essential points should be understood concerning the
speech at issue here. First, we shall assume that many
adults themselves would find the material highly offensive;
and when we consider the further circumstance that the ma-
terial comes unwanted into homes where children might see
or hear it against parental wishes or consent, there are legiti-
mate reasons for regulating it. Second, all parties bring the
case to us on the premise that Playboy’s programming has
First Amendment protection. As this case has been liti-
gated, it is not alleged to be obscene; adults have a constitu-
tional 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 in-
decent.” 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 reg-
ulated speech.’ ” Ward v. Rock Against Racism, 491 U. S.
781, 791 (1989) (quoting Clark v. Community for Creative
Non-Violence, 468 U. S. 288, 293 (1984)). 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,

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321 (1988) (opinion of O’Connor, J.). This is the essence of
content-based regulation.
Not only does § 505 single out particular programming con-
tent for regulation, it also singles out particular program-
mers. The speech in question was not thought by Congress
to be so harmful that all channels were subject to restriction.
Instead, the statutory disability applies only to channels
“primarily dedicated to sexually-oriented programming.”
47 U. S. C. § 561(a) (1994 ed., Supp. III). One sponsor of the
measure even identified appellee by name. See 141 Cong.
Rec. 15587 (1995) (statement of Sen. Feinstein) (noting the
statute would apply to channels “such as the Playboy and
Spice channels”). Laws designed or intended to suppress or
restrict the expression of specific speakers contradict basic
First Amendment principles. Section 505 limited Playboy’s
market as a penalty for its programming choice, though other
channels capable of transmitting like material are alto-
gether 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 pro-
tected speech for two-thirds of the day in every home in a
cable service area, regardless of the presence or likely pres-
ence 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 be-
tween speakers and willing adult listeners, communication
which enjoys First Amendment protection. It is of no mo-
ment that the statute does not impose a complete prohibi-
tion. The distinction between laws burdening and laws ban-
ning speech is but a matter of degree. The Government’s
content-based burdens must satisfy the same rigorous scru-
tiny as its content-based bans.

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Opinion of the Court
Since § 505 is a content-based speech restriction, it can
stand only if it satisfies strict scrutiny. Sable Communica-
tions of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). If a
statute regulates speech based on its content, it must be nar-
rowly tailored to promote a compelling Government interest.
Ibid. If a less restrictive alternative would serve the Gov-
ernment’s purpose, the legislature must use that alternative.
Reno, 521 U. S., at 874 (“[The CDA’s Internet indecency pro-
visions’] burden on adult speech is unacceptable if less re-
strictive alternatives would be at least as effective in achiev-
ing the legitimate purpose that the statute was enacted to
serve”); Sable Communications, supra, at 126 (“The Gov-
ernment 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 articu-
lated 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 de-
signed 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 restric-
tive alternative exists. We are expected to protect our own
sensibilities “simply by averting [our] eyes.” Cohen v. Cali-
fornia, 403 U. S. 15, 21 (1971); accord, Erznoznik v. Jackson-
ville, 422 U. S. 205, 210–211 (1975). Here, of course, we con-
sider images transmitted to some homes where they are not
wanted and where parents often are not present to give im-
mediate guidance. Cable television, like broadcast media,
presents unique problems, which inform our assessment of
the interests at stake, and which may justify restrictions
that would be unacceptable in other contexts. See Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC, 518
U. S. 727, 744 (1996) (plurality opinion); id., at 804–805 (Ken-
nedy, J., concurring in part, concurring in judgment in part,
and dissenting in part); FCC v. Pacifica Foundation, 438

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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 con-
sider a content-based regulation, the answer should be clear:
The standard is strict scrutiny. This case involves speech
alone; and even where speech is indecent and enters the
home, the objective of shielding children does not suffice to
support a blanket ban if the protection can be accomplished
by a less restrictive alternative.
In Sable Communications, for instance, the feasibility of
a technological approach to controlling minors’ access to
“dial-a-porn” messages required invalidation of a complete
statutory ban on the medium. 492 U. S., at 130–131. And,
while mentioned only in passing, the mere possibility that
user-based Internet screening software would “ ‘soon be
widely available’ ” was relevant to our rejection of an over-
broad restriction of indecent cyberspeech. Reno, supra, at
876–877. Compare Rowan v. Post Office Dept., 397 U. S.
728, 729–730 (1970) (upholding statute “whereby any house-
holder may insulate himself from advertisements that offer
for sale ‘matter which the addressee in his sole discretion
believes to be erotically arousing or sexually provocative’ ”
(quoting then 39 U. S. C. § 4009(a) (1964 ed., Supp. IV))), with
Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 75
(1983) (rejecting blanket ban on the mailing of unsolicited
contraceptive advertisements). Compare also Ginsberg v.
New York, 390 U. S. 629, 631 (1968) (upholding state statute
barring the sale to minors of material defined as “obscene on
the basis of its appeal to them”), with Butler v. Michigan,
352 U. S. 380, 381 (1957) (rejecting blanket ban of material
“ ‘tending to incite minors to violent or depraved or immoral
acts, manifestly tending to the corruption of the morals of
youth’ ” (quoting then Mich. Penal Code § 343)). Each of
these cases arose in a different context—Sable Communica-

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Opinion of the Court
tions and Reno, for instance, also note the affirmative steps
necessary to obtain access to indecent material via the media
at issue—but they provide necessary instruction for comply-
ing with accepted First Amendment principles.
Our zoning cases, on the other hand, are irrelevant to the
question here. Post, at 838 (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 regula-
tions targeting the secondary effects of crime or declining
property values has no application to content-based regula-
tions targeting the primary effects of protected speech.
Reno, supra, at 867–868; Boos, 485 U. S., at 320–321. The
statute now before us burdens speech because of its content;
it must receive strict scrutiny.
There is, moreover, a key difference between cable televi-
sion and the broadcasting media, which is the point on which
this case turns: Cable systems have the capacity to block
unwanted channels on a household-by-household basis. The
option to block reduces the likelihood, so concerning to the
Court in Pacifica, supra, at 744, that traditional First
Amendment scrutiny would deprive the Government of all
authority to address this sort of problem. The corollary, of
course, is that targeted blocking enables the Government to
support parental authority without affecting the First
Amendment interests of speakers and willing listeners—lis-
teners for whom, if the speech is unpopular or indecent, the
privacy of their own homes may be the optimal place of re-
ceipt. 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.

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Opinion of the Court
III
The District Court concluded that a less restrictive al-
ternative is available: § 504, with adequate publicity. 30
F. Supp. 2d, at 719–720. No one disputes that § 504, which
requires cable operators to block undesired channels at indi-
vidual households upon request, is narrowly tailored to the
Government’s goal of supporting parents who want those
channels blocked. The question is whether § 504 can be
effective.
When a plausible, less restrictive alternative is offered to
a content-based speech restriction, it is the Government’s ob-
ligation 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 enforc-
ing § 505, § 504 remained in operation. A survey of cable
operators determined that fewer than 0.5% of cable subscrib-
ers requested full blocking during that time. Id., at 712.
The uncomfortable fact is that § 504 was the sole blocking
regulation in effect for over a year; and the public greeted it
with a collective yawn.
The District Court was correct to direct its attention to
the import of this tepid response. Placing the burden of
proof upon the Government, the District Court examined
whether § 504 was capable of serving as an effective, less
restrictive means of reaching the Government’s goals. Id.,
at 715, 718–719. It concluded that § 504, if publicized in an
adequate manner, could be. Id., at 719–720.
The District Court employed the proper approach. When
the Government restricts speech, the Government bears
the burden of proving the constitutionality of its actions.
Greater New Orleans Broadcasting Assn., Inc. v. United
States, 527 U. S. 173, 183 (1999) (“[T]he Government bears

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817 Cite as: 529 U. S. 803 (2000)
Opinion of the Court
the burden of identifying a substantial interest and justi-
fying the challenged restriction”); Reno, 521 U. S., at 879
(“The breadth of this content-based restriction of speech
imposes an especially heavy burden on the Government to
explain why a less restrictive provision would not be as
effective . . .”); Edenfield v. Fane, 507 U. S. 761, 770–771
(1993) (“[A] governmental body seeking to sustain a restric-
tion 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 unpleasant-
ness 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 reg-
ulations 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 un-
conditionally 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 mark-
ing that line exacts an extraordinary cost. It is through
speech that our convictions and beliefs are influenced, ex-
pressed, 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 ex-
pressed. The citizen is entitled to seek out or reject certain
ideas or influences without Government interference or
control.

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818 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Opinion of the Court
When a student first encounters our free speech jurispru-
dence, he or she might think it is influenced by the philoso-
phy 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 phi-
losophy 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 ex-
pands the capacity to choose; and it denies the potential of
this revolution if we assume the Government is best posi-
tioned 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 at-
tempted to restrict speech, we would risk leaving regula-
tions in place that sought to shape our unique personalities
or to silence dissenting ideas. When First Amendment com-
pliance is the point to be proved, the risk of nonpersuasion—
operative in all trials—must rest with the Government, not
with the citizen. Id., at 526.
With this burden in mind, the District Court explored
three explanations for the lack of individual blocking re-
quests. 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 adver-
tised 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.

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819 Cite as: 529 U. S. 803 (2000)
Opinion of the Court
To sustain its statute, the Government was required to
show that the first was the right answer. According to the
District Court, however, the first and third possibilities were
“equally consistent” with the record before it. Ibid. As for
the second, the record was “not clear” as to whether enough
notice had been issued to give § 504 a fighting chance. Ibid.
The case, then, was at best a draw. Unless the District
Court’s findings are clearly erroneous, the tie goes to free
expression.
The District Court began with the problem of signal bleed
itself, concluding “the Government has not convinced us that
[signal bleed] is a pervasive problem.” Id., at 708–709, 718.
The District Court’s thorough discussion exposes a central
weakness in the Government’s proof: There is little hard evi-
dence of how widespread or how serious the problem of sig-
nal 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 as-
sessment 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 assort-
ment of videotapes, some of which show quite explicit bleed-
ing and some of which show television static or snow, there
is no attempt at explanation or context; there is no discus-
sion, 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:

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820 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Opinion of the Court
“The Government presented evidence of two city
councillors, eighteen individuals, one United States Sen-
ator, 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. In-
cluded in the complaints was the additional concern that
other parents might not be aware that their children are
exposed to this problem. In addition, the Government
presented evidence of a child exposed to signal bleed at
a friend’s house. Cindy Omlin set the lockout feature
on her remote control to prevent her child from tuning
to adult channels, but her eleven year old son was never-
theless exposed to signal bleed when he attended a
slumber party at a friend’s house.
“The Government has presented evidence of only a
handful of isolated incidents over the 16 years since 1982
when Playboy started broadcasting. The Government
has not presented any survey-type evidence on the mag-
nitude of the ‘problem.’ ” Id., at 709 (footnote and rec-
ord citations omitted).
Spurred by the District Court’s express request for more
specific evidence of the problem, see 945 F. Supp., at 779,
n. 16, the Government also presented an expert’s spread-
sheet estimate that 39 million homes with 29.5 million chil-
dren had the potential to be exposed to signal bleed, 30
F. Supp. 2d, at 708–709. The Government made no attempt
to confirm the accuracy of its estimate through surveys or
other field tests, however. Accordingly, the District Court
discounted the figures and made this finding: “[T]he Govern-
ment 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

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821 Cite as: 529 U. S. 803 (2000)
Opinion of the Court
709. The finding is not clearly erroneous; indeed it is all
but required.
Once § 505 went into effect, of course, a significant percent-
age 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 per-
fected. That is not to say, however, that scrambling is
completely ineffective. Different cable systems use differ-
ent 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 require-
ment 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 bleed-
ing, 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 evi-
dence in the record which differentiates among the extent of
bleed at individual households and no evidence which other-
wise quantifies the signal bleed problem.
In addition, market-based solutions such as programmable
televisions, VCR’s, and mapping systems (which display a
blue screen when tuned to a scrambled signal) may eliminate
signal bleed at the consumer end of the cable. 30 F. Supp.
2d, at 708. Playboy made the point at trial that the Govern-
ment’s estimate failed to account for these factors. Id., at
708–709. Without some sort of field survey, it is impossible
to know how widespread the problem in fact is, and the only
indicator in the record is a handful of complaints. Cf.

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822 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Opinion of the Court
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 sup-
port of complex must-carry provisions). If the number of
children transfixed by even flickering pornographic televi-
sion images in fact reached into the millions we, like the
District Court, would have expected to be directed to more
than a handful of complaints.
No support for the restriction can be found in the near
barren legislative record relevant to this provision. Section
505 was added to the Act by floor amendment, accompanied
by only brief statements, and without committee hearing or
debate. See 141 Cong. Rec. 15586–15589 (1995). One of the
measure’s sponsors did indicate she considered time channel-
ing 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 conclu-
sory statement, however, tells little about the relative effi-
cacy of voluntary blocking versus time channeling, other
than offering the unhelpful, self-evident generality that vol-
untary measures require voluntary action. The Court has
declined to rely on similar evidence before. See Sable Com-
munications, 492 U. S., at 129–130 (“[A]side from conclusory
statements during the debates by proponents of the bill, . . .
the congressional record presented to us contains no evi-
dence as to how effective or ineffective the . . . regulations
were or might prove to be” (footnote omitted)); Reno, 521
U. S., at 858, and n. 24, 875–876, n. 41 (same). This is not to
suggest that a 10,000-page record must be compiled in every
case or that the Government must delay in acting to address
a real problem; but the Government must present more than
anecdote and supposition. The question is whether an ac-
tual problem has been proved in this case. We agree that

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823 Cite as: 529 U. S. 803 (2000)
Opinion of the Court
the Government has failed to establish a pervasive, nation-
wide 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 no-
tice 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 alter-
native to the provisions of § 505. At the time of the perma-
nent injunction hearing, further evidence of the actual and
predicted impact and efficacy of § 504 would be helpful
to us”). Once again, the Government fell short. See 30
F. Supp. 2d, at 719 (“[The Government’s argument that § 504
is ineffective] is premised on adequate notice to subscribers.
It is not clear, however, from the record that notices of the
provisions of § 504 have been adequate”). There is no evi-
dence that a well-promoted voluntary blocking provision
would not be capable at least of informing parents about sig-
nal 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 con-
clusion of the three-judge District Court. First, the Gov-
ernment takes issue with the District Court’s reliance, with-
out proof, on a “hypothetical, enhanced version of Section
504.” Brief for Appellants 32. It was not the District
Court’s obligation, however, to predict the extent to which
an improved notice scheme would improve § 504. It was for
the Government, presented with a plausible, less restrictive
alternative, to prove the alternative to be ineffective, and
§ 505 to be the least restrictive available means. Indeed, to
the extent the District Court erred, it was only in attempting
to implement the less restrictive alternative through judicial
decree by requiring Playboy to provide for expanded notice
in its cable service contracts. The appropriate remedy was
not to repair the statute, it was to enjoin the speech restric-

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824 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Opinion of the Court
tion. Given the existence of a less restrictive means, if the
Legislature wished to improve its statute, perhaps in the
process giving careful consideration to other alternatives, it
then could do so.
The Government also contends a publicized § 504 will be
just as restrictive as § 505, on the theory that the cost of
installing blocking devices will outstrip the revenues from
distributing Playboy’s programming and lead to its cancella-
tion. See 30 F. Supp. 2d, at 713. This conclusion rests on
the assumption that a sufficient percentage of households,
informed of the potential for signal bleed, would consider it
enough of a problem to order blocking devices—an assump-
tion 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 con-
sumer to take action, or may be inconvenient, or may not go
perfectly every time. A court should not assume a plausi-
ble, 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 rec-
ord to support the point. The Government instead takes
quite a different approach. After only an offhand sugges-
tion that the success of a well-communicated § 504 is “highly

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825 Cite as: 529 U. S. 803 (2000)
Opinion of the Court
unlikely,” the Government sets the point aside, arguing in-
stead that society’s independent interests will be unserved if
parents fail to act on that information. Brief for Appellants
32–33 (“[U]nder . . . an enhanced version of Section 504, par-
ents who had strong feelings about the matter could see to
it that their children did not view signal bleed—at least in
their own homes”); id., at 33 (“Even an enhanced version of
Section 504 would succeed in blocking signal bleed only if,
and after, parents affirmatively decided to avail themselves
of the means offered them to do so. There would certainly
be parents—perhaps a large number of parents—who out of
inertia, indifference, or distraction, simply would take no ac-
tion to block signal bleed, even if fully informed of the prob-
lem and even if offered a relatively easy solution”); Reply
Brief for Appellants 12 (“[Society’s] interest would of course
be served in instances . . . in which parents request blocking
under an enhanced Section 504. But in cases in which par-
ents fail to make use of an enhanced Section 504 procedure
out of distraction, inertia, or indifference, Section 505 would
be the only means to protect society’s independent interest”).
Even upon the assumption that the Government has an
interest in substituting itself for informed and empowered
parents, its interest is not sufficiently compelling to justify
this widespread restriction on speech. The Government’s
argument stems from the idea that parents do not know their
children are viewing the material on a scale or frequency
to cause concern, or if so, that parents do not want to take
affirmative steps to block it and their decisions are to be
superseded. The assumptions have not been established;
and in any event the assumptions apply only in a regime
where the option of blocking has not been explained. The
whole point of a publicized § 504 would be to advise parents
that indecent material may be shown and to afford them an
opportunity to block it at all times, even when they are not
at home and even after 10 p.m. Time channeling does not
offer this assistance. The regulatory alternative of a publi-

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826 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Opinion of the Court
cized § 504, which has the real possibility of promoting more
open disclosure and the choice of an effective blocking sys-
tem, would provide parents the information needed to en-
gage 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 channel-
ing 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 sup-
pression. We cannot be influenced, moreover, by the per-
ception 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 in-
volving speech that many citizens may find shabby, offensive,
or even ugly. It follows that all content-based restrictions
on speech must give us more than a moment’s pause. If
television broadcasts can expose children to the real risk of
harmful exposure to indecent materials, even in their own
home and without parental consent, there is a problem the

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827 Cite as: 529 U. S. 803 (2000)
Appendix to opinion of the Court
Government can address. It must do so, however, in a way
consistent with First Amendment principles. Here the Gov-
ernment 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 Dis-
trict 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 Dis-
trict Court was divested of jurisdiction to consider the Gov-
ernment’s postjudgment motions after the Government filed
a notice of appeal in this Court. The judgment of the Dis-
trict Court is affirmed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Section 505 of the Telecommunications Act of 1996, Pub. L.
104–104, 110 Stat. 136, 47 U. S. C. § 561 (1994 ed., Supp. III),
provides in relevant part:
“(a) Requirement
“In providing sexually explicit adult programming or
other programming that is indecent on any channel of
its service primarily dedicated to sexually-oriented pro-
gramming, a multichannel video programming distribu-
tor 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 sub-
section by not providing such programming during the
hours of the day (as determined by the Commission)

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828 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Stevens, J., concurring
when a significant number of children are likely to
view it.
“(c) ‘Scramble’ defined
“As used in this section, the term ‘scramble’ means to
rearrange the content of the signal of the programming
so that the programming cannot be viewed or heard in
an understandable manner.”
Section 504 of the Telecommunications Act of 1996, Pub. L.
104–104, 110 Stat. 136, 47 U. S. C. § 560 (1994 ed., Supp. III),
provides in relevant part:
“(a) Subscriber request
“Upon request by a cable service subscriber, a cable
operator shall, without charge, fully scramble or other-
wise 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.”
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 demon-
strated 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; adver-

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829 Cite as: 529 U. S. 803 (2000)
Thomas, J., concurring
tising 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 Scalia’s pro-
posal 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 in-
formed, 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 Play-
boy are offensive to many viewers provides a justification for
protecting, not penalizing, truthful statements about their
content.
Justice Thomas, concurring.
It would seem to me that, with respect to at least some of
the cable programming affected by § 505 of the Telecommuni-
cations Act of 1996, the Government has ample constitutional
and statutory authority to prohibit its broadcast entirely. A
governmental restriction on the distribution of obscene
materials receives no First Amendment scrutiny. Roth v.
United States, 354 U. S. 476, 485 (1957). Though perhaps
not all of the programming at issue in the case is obscene as
this Court defined the term in Miller v. California, 413 U. S.
15, 24 (1973), one could fairly conclude that, under the stand-
ards applicable in many communities, some of the program-
ming meets the Miller test. If this is so, the Government
is empowered by statute to sanction these broadcasts with
criminal penalties. See 47 U. S. C. § 559 (1994 ed., Supp. III)
(“Whoever transmits over any cable system any matter
which is obscene or otherwise unprotected by the Constitu-

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830 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Thomas, J., concurring
tion of the United States shall be fined under title 18 or im-
prisoned not more than 2 years, or both”).*
However, as the Court points out, this case has been liti-
gated on the assumption that the programming at issue is
not obscene, but merely indecent. We have no factual find-
ing that any of the materials at issue are, in fact, obscene.
Indeed, the District Court described the materials as inde-
cent but not obscene. 945 F. Supp. 772, 774, n. 4 (Del. 1996).
The Government does not challenge that characterization in
this Court, Tr. of Oral Arg. 9–10, but instead asks this Court
to ratify the statute on the assumption that this is protected
speech. I am unwilling, in the absence of factual findings or
advocacy of the position, to rely on the view that some of the
relevant programming is obscene.
What remains then is the assumption that the program-
ming restricted by § 505 is not obscene, but merely indecent.
The Government, having declined to defend the statute as a
regulation of obscenity, now asks us to dilute our stringent
First Amendment standards to uphold § 505 as a proper reg-
ulation of protected (rather than unprotected) speech. See
Brief for Appellants 18–29 (arguing that traditional strict
scrutiny does not apply). I am unwilling to corrupt the
First Amendment to reach this result. The “starch” in our
constitutional standards cannot be sacrificed to accommodate
the enforcement choices of the Government. See Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC, 518
U. S. 727, 774 (1996) (Souter, J., concurring) (“Reviewing
*I am referring, here, to unscrambled programming on the Playboy and
Spice channels, examples of which were lodged with the Court. The Gov-
ernment also lodged videotapes containing signal bleed from these chan-
nels. I assume that if the unscrambled programming on these channels
is obscene, any scrambled but discernible images from the programs would
be obscene as well. In fact, some of the examples of signal bleed con-
tained in the record may fall within our definition of obscenity more easily
than would the unscrambled programming because it is difficult to dispute
that signal bleed “lacks serious literary, artistic, political, or scientific
value.” Miller v. California, 413 U. S. 15, 24 (1973).

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Scalia, J., dissenting
speech regulations under fairly strict categorical rules keeps
the starch in the standards for those moments when the daily
politics cries loudest for limiting what may be said”).
Applying the First Amendment’s exacting standards, the
Court has correctly determined that § 505 cannot be upheld
on the theory argued by the Government. Accordingly,
I join the opinion of the Court.
Justice Scalia, dissenting.
I agree with the principal dissent in this case that § 505 of
the Telecommunications Act of 1996, Pub. L. 104–104, 110
Stat. 136, 47 U. S. C. § 561 (1994 ed., Supp. III), is supported
by a compelling state interest and is narrowly tailored. I
write separately to express my view that § 505 can be upheld
in simpler fashion: by finding that it regulates the business
of obscenity.
To be sure, § 505 and the Federal Communications Com-
mission’s implementing regulation, see 47 CFR § 76.227
(1999), purport to capture programming that is indecent
rather than merely that which is obscene. And I will as-
sume for purposes of this discussion (though it is a highly
fanciful assumption) that none of the transmissions at issue
independently crosses the boundary we have established for
obscenity, see Miller v. California, 413 U. S. 15, 24 (1973), so
that the individual programs themselves would enjoy First
Amendment protection. In my view, however, that assump-
tion does not put an end to the inquiry.
We have recognized that commercial entities which engage
in “the sordid business of pandering” by “deliberately em-
phasiz[ing] the sexually provocative aspects of [their nonob-
scene products], in order to catch the salaciously disposed,”
engage in constitutionally unprotected behavior. Ginzburg
v. United States, 383 U. S. 463, 467, 472 (1966); see also FW/
PBS, Inc. v. Dallas, 493 U. S. 215, 257–258 (1990) (Scalia, J.,
concurring in part and dissenting in part); Pinkus v. United
States, 436 U. S. 293, 303–304 (1978); Splawn v. California,

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832 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Scalia, J., dissenting
431 U. S. 595, 597–599 (1977); Hamling v. United States, 418
U. S. 87, 130 (1974). Cf. Jacobellis v. Ohio, 378 U. S. 184, 201
(1964) (Warren, C. J., dissenting) (“In my opinion, the use
to which various materials are put—not just the words and
pictures themselves—must be considered in determining
whether or not the materials are obscene”). This is so
whether or not the products in which the business traffics
independently meet the high hurdle we have established for
delineating the obscene, viz., that they contain no “serious
literary, artistic, political, or scientific value.” Miller,
supra, at 24. See Ginzburg, 383 U. S., at 471. We are more
permissive of government regulation in these circumstances
because it is clear from the context in which exchanges be-
tween such businesses and their customers occur that nei-
ther the merchant nor the buyer is interested in the work’s
literary, artistic, political, or scientific value. “The deliber-
ate representation of petitioner’s publications as erotically
arousing . . . stimulate[s] the reader to accept them as pruri-
ent; he looks for titillation, not for saving intellectual con-
tent.” Id., at 470. Thus, a business that “(1) offer[s] . . .
hardcore sexual material, (2) as a constant and intentional
objective of [its] business, [and] (3) seek[s] to promote it as
such” finds no sanctuary in the First Amendment. FW/
PBS, supra, at 261 (Scalia J., concurring in part and dis-
senting in part).
Section 505 regulates just this sort of business. Its cover-
age is limited to programming that “describes or depicts sex-
ual or excretory activities or organs in a patently offensive
manner as measured by contemporary community standards
[for cable television].” 47 CFR § 76.227(d) (1999) (emphasis
added). It furthermore applies only to those channels that
are “primarily dedicated to sexually-oriented program-
ming.” 1 § 505(a) (emphasis added). It is conceivable, I
suppose, that a channel which is primarily dedicated to sex
1 Congress’s attempt to limit the reach of § 505 is therefore, contrary to
the Court’s contention, see ante, at 812, a virtue rather than a vice.

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might not hold itself forth as primarily dedicated to sex—in
which case its productions which contain “serious literary,
artistic, political, or scientific value” (if any) would be as enti-
tled to First Amendment protection as the statuary rooms of
the National Gallery. But in the competitive world of cable
programming, the possibility that a channel devoted to sex
would not advertise itself as such is sufficiently remote, and
the number of such channels sufficiently small (if not indeed
nonexistent), as not to render the provision substantially
overbroad.2
Playboy itself illustrates the type of business § 505 is de-
signed to reach. Playboy provides, through its networks—
Playboy Television, AdulTVision, Adam & Eve, and Spice—
2 Justice Stevens misapprehends in several respects the nature of the
test I would apply. First, he mistakenly believes that the nature of the
advertising controls the obscenity analysis, regardless of the nature of the
material being advertised. I entirely agree with him that “advertising a
bareheaded dancer as ‘topless’ might be deceptive, but it would not make
her performance obscene.” Ante, at 828–829 (concurring opinion). I be-
lieve, however, that if the material is “patently offensive” and it is being
advertised as such, we have little reason to think it is being proffered for
its socially redeeming value.
Justice Stevens’s second misapprehension flows from the first: He
sees the test I would apply as incompatible with the Court’s commercial-
speech jurisprudence. See ante, at 829 (concurring opinion); see also
Splawn v. California, 431 U. S. 595, 603, n. 2 (1977) (Stevens, J., dissent-
ing) (“Ginzburg cannot survive [Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U. S. 748 (1976)]”). There is no
such conflict. Although the Ginzburg test, like most obscenity tests, has
ordinarily been applied in a commercial context (most purveyors of obscen-
ity are in the business for the money), its logic is not restricted to that
context. The test applies equally to the improbable case in which a collec-
tor of indecent materials wishes to give them away, and takes out a classi-
fied ad in the local newspaper touting their salacious appeal. Commercial
motive or not, the “ ‘[c]ircumstances of . . . dissemination are relevant to
determining whether [the] social importance claimed for [the] material
[is] . . . pretense or reality.’ ” Splawn, supra, at 598 (quoting jury instruc-
tion approved). Perhaps this is why the Court in Splawn did not accept
Justice Stevens’s claim of incompatibility.

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834 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Scalia, J., dissenting
“virtually 100% sexually explicit adult programming.” 30
F. Supp. 2d 702, 707 (Del. 1998). For example, on its Spice
network, Playboy describes its own programming as depict-
ing such activities as “female masturbation/external,” “girl/
girl sex,” and “oral sex/cunnilingus.” 1 Record, Exh. 73,
p. TWC00132. As one would expect, given this content,
Playboy advertises accordingly, with calls to “Enjoy the sexi-
est, hottest adult movies in the privacy of your own home.”
6 id., Exh. 136, at 2P009732. An example of the promotion
for a particular movie is as follows: “Little miss country girls
are aching for a quick roll in the hay! Watch southern hos-
pitality pull out all the stops as these ravin’ nymphos tear
down the barn and light up the big country sky.” 7 id., Exh.
226, at 2P009187. One may doubt whether—or marvel
that—this sort of embarrassingly juvenile promotion really
attracts what Playboy assures us is an “adult” audience.
But it is certainly marketing sex.3
Thus, while I agree with Justice Breyer’s child-
protection analysis, it leaves me with the same feeling of
3 Both the Court, see ante, at 811, and Justice Thomas, see ante, at
830 (concurring opinion), find great importance in the fact that “this case
has been litigated on the assumption that the programming at issue is not
obscene, but merely indecent,” see ibid. (emphasis deleted). But as I
noted in FW/PBS, Inc. v. Dallas, 493 U. S. 215, 262–263 (1990) (opinion
concurring in part and dissenting in part), we have not allowed the parties’
litigating positions to place limits upon our development of obscenity law.
See, e. g., Miller v. California, 413 U. S. 15, 24–25 (1973) (abandoning “ut-
terly without redeeming social value” test sua sponte); Ginzburg v. United
States, 383 U. S. 463 (1966) (adopting pandering theory unargued by the
Government); Mishkin v. New York, 383 U. S. 502 (1966) (upholding convic-
tions on theory that obscenity could be defined by looking to the intent of
the disseminator, despite respondent’s express disavowal of that theory).
As for Justice Thomas’s concern that there has been no factual finding
of obscenity in this case, see ante, at 830 (concurring opinion): This is not
an as-applied challenge, in which the issue is whether a particular course
of conduct constitutes obscenity; it is a facial challenge, in which the issue
is whether the terms of this statute address obscenity. That is not for
the factfinder below, but for this Court.

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true-but-inadequate as the conclusion that Al Capone did not
accurately report his income. It is not only children who
can be protected from occasional uninvited exposure to what
appellee calls “adult-oriented programming”; we can all be.
Section 505 covers only businesses that engage in the “com-
mercial exploitation of erotica solely for the sake of their
prurient appeal,” Ginzburg, 383 U. S., at 466—which, as
Playboy’s own advertisements make plain, is what “adult”
programming is all about. In most contexts, contemporary
American society has chosen to permit such commercial ex-
ploitation. That may be a wise democratic choice, if only
because of the difficulty in many contexts (though not this
one) of identifying the panderer to sex. It is, however, not
a course compelled by the Constitution. Since the Govern-
ment is entirely free to block these transmissions, it may
certainly take the less drastic step of dictating how, and dur-
ing what times, they may occur.
Justice Breyer, with whom The Chief Justice, Jus-
tice 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 prohibits cable op-
erators 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 chan-
nels during daylight and evening hours (6 a.m. to 10 p.m.).
We must decide whether the First Amendment permits Con-
gress to enact this statute.

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836 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Breyer, J., dissenting
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 re-
strictions are justified by a “compelling interest,” namely,
an interest in limiting children’s access to sexually explicit
material. In doing so, it recognizes that the Legislature
must respect adults’ viewing freedom by “narrowly tailor-
ing” the statute so that it restricts no more speech than nec-
essary, and choosing instead any alternative that would fur-
ther the compelling interest in a “less restrictive” but “at
least as effective” way. See ante, at 813; 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 823, 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,
ibid. 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 em-
phasize 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 subscrib-
er’s home except on request. But the operators then imple-
mented that decision with inexpensive technology. Through
signal “bleeding,” the scrambling technology (either inad-
vertently or by way of enticement) allowed nonsubscribers
to see and hear what was going on. That is why Congress
decided to act.

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Breyer, J., dissenting
In 1995, Senator Dianne Feinstein, the present statute’s
legislative cosponsor, pointed out that “numerous cable oper-
ators across the country are still automatically broadcast-
ing sexually explicit programming into households across
America, regardless of whether parents want this or sub-
scribers 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 ex-
plicit adult programming on cable television,” id., at 15587.
She consequently proposed, and Congress enacted, the pres-
ent statute.
The statute is carefully tailored to respect viewer prefer-
ences. 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 pro-
visions 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 fail-
ure to fully “rearrange the content of the signal . . . so that
the programming cannot be viewed or heard in an under-

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838 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Breyer, J., dissenting
standable manner,” § 504(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 812. 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 technol-
ogy 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. 377 (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 leg-
islatures maintain a limited power to protect children by re-
stricting access to, but not banning, adult material. Com-
pare Ginsberg v. New York, 390 U. S. 629 (1968) (upholding
ban on sale of pornographic magazines to minors), with But-
ler v. Michigan, 352 U. S. 380 (1957) (invalidating ban on all
books unfit for minors); see also Denver Area Ed. Telecom-
munications 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.

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Breyer, J., dissenting
Third, this case concerns only the regulation of commercial
actors who broadcast “virtually 100% sexually explicit” ma-
terial. 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 tai-
loring 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
nonpornographic 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 un-
derstand 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 chan-
nels by children whose parents did not request their broad-
cast. Ante, at 819–822. 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, 2 Record 2. Further, the Govern-
ment’s expert took the number of homes subscribing to Play-
boy or Spice, multiplied by the fraction of cable households
with children and the average number of children per house-
hold, 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 sys-
tems that might be considered in full compliance, this left 22

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840 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Breyer, J., dissenting
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 night-
time only transmission of adult channels. Ante, at 809 (em-
phasis 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 nighttime hours? There is no realistic answer to
this question. I do not think it realistic to imagine that sig-
nal bleed occurs just enough to make cable operators skittish,
without also significantly exposing children to these images.
See ante, at 821.
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 evi-
dence 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 alterna-
tive”—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 restric-
tive alternativ[e]” must be “at least as effective in achieving
the legitimate purpose that the statute was enacted to
serve.” 521 U. S., at 874.

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The words I have just emphasized, “similarly” and “effec-
tive,” are critical. In an appropriate case they ask a judge
not to apply First Amendment rules mechanically, but to de-
cide whether, in light of the benefits and potential alterna-
tives, 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 re-
strictive 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 unimag-
inative indeed if he could not come up with something a little
less ‘drastic’ or a little less ‘restrictive’ in almost any situa-
tion, and thereby enable himself to vote to strike legisla-
tion 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 legis-
latures, “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 jurispru-
dence, 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 813,
and it addresses the Government’s effectiveness arguments,
ante, at 823–826. I therefore assume it continues to recog-
nize 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

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842 UNITED STATES v. PLAYBOY ENTERTAINMENT
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Breyer, J., dissenting
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 un-
aware of what they are watching, whose parents cannot eas-
ily 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 ac-
cess 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 chil-
dren 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 Im-
provement, Bringing Education into the After-School Hours
3 (summer 1999). I could not disagree more when the ma-
jority implies that the Government’s independent interest in
offering such protection—preventing, say, an 8-year-old child
from watching virulent pornography without parental con-
sent—might not be “compelling.” Ante, at 825. No previ-
ous case in which the protection of children was at issue has
suggested any such thing. Indeed, they all say precisely the
opposite. See Reno, supra, at 865 (State has an “independ-
ent 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

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minors from accessing sexually explicit materials in the ab-
sence of parental supervision. See Ginsberg, supra, at 640.
By definition, § 504 does nothing at all to further the com-
pelling interest I have just described. How then is it a simi-
larly effective § 505 alternative?
The record, moreover, sets forth empirical evidence show-
ing 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 816. The majority de-
scribes this public reaction as “a collective yawn,” ibid., add-
ing that the Government failed to prove that the “yawn” re-
flected 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 839–840. And I doubt that the public, though it
may well consider the viewing habits of adults a matter of
personal choice, would “yawn” when the exposure in ques-
tion concerns young children, the absence of parental con-
sent, and the sexually explicit material here at issue. See
ante, at 833–834 (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 instal-
lation 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 2).
And it does nothing at all in respect to steps 3 through 5.
Yet the record contains considerable evidence that those
problems matter, i. e., evidence of endlessly delayed phone

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call responses, faulty installations, blocking failures, and
other mishaps, leaving those steps as significant § 504 obsta-
cles. 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, id., 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 no-
tice”—the only plan that makes concrete the majority’s “bet-
ter notice” requirement—is fraught with difficulties. The
District Court ordered Playboy to insist that cable operators
place notice of § 504 in “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 view-
ers would need § 504. But that earlier conclusion is un-
sound. See supra, at 839–840. The majority also relies on

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845 Cite as: 529 U. S. 803 (2000)
Breyer, J., dissenting
the fact that Playboy, presumably aware of its own economic
interests, “is willing to incur the costs of an effective § 504.”
Ante, at 824. Yet that denial, as the majority admits, may
simply reflect Playboy’s knowledge that § 504, even with bet-
ter notice, will not work. Section 504 is not a similarly ef-
fective 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 an-
swer 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 chil-
dren 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 chan-
nels blocked for free. But the probability that this remote
possibility will occur is neither a “draw” nor a “tie.” Ante,
at 819. 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 ef-
fective 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 block-
ing systems. Cf. Renton, 475 U. S., at 53–55 (upholding zon-
ing rules that force potential adult theater patrons to travel
to less convenient locations). The Government’s justifi-
cation for imposing this restriction—limiting the access of
children to channels that broadcast virtually 100% “sexu-

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846 UNITED STATES v. PLAYBOY ENTERTAINMENT
GROUP, INC.
Breyer, J., dissenting
ally explicit” material—is “compelling.” The record shows
no similarly effective, less restrictive alternative. Conse-
quently § 505’s restriction, viewed in light of the proposed
alternative, is proportionate to need. That is to say, it re-
stricts speech no more than necessary to further that com-
pelling 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 exist-
ence of a serious problem and the comparative ineffective-
ness 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
826–827. 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 transmis-
sion 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.

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847 Cite as: 529 U. S. 803 (2000)
Breyer, J., dissenting
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 nar-
row regulation of adult channels here, see, e. g., Reno v.
American Civil Liberties Union, 521 U. S. 844 (1997), im-
posed 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 829–830. 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 in-
terfere 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 maintain-
ing adult access to the sexually explicit channels here at
issue. It has tailored the restrictions to minimize their im-
pact upon adults while offering parents help in keeping un-
wanted transmissions from their children. By finding “ade-
quate 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.