529 U.S. 803 (2000)
Congress enacted Section 505 of the Telecommunications Act of 1996 to address signal bleed from channels primarily dedicated to sexually oriented programming.1
The statute required cable operators either to fully scramble or block such channels or to limit transmission to the hours between 10 p.m. and 6 a.m.2
Playboy Entertainment Group, Inc. owns and prepares programs for Playboy Television and Spice.3 It transmits its programming to cable operators who retransmit the signals in scrambled form to paying subscribers via addressable converters.4 Almost all of Playboy's programming consists of sexually explicit material as defined by the statute.5 Imperfect analog scrambling on RF or baseband systems produced signal bleed, allowing non-subscribers to see or hear portions of the programming.6
Most cable operators complied with Section 505 by time channeling the targeted programming.7 This eliminated the targeted programming for two-thirds of the day in affected service areas.8 The result was a significant reduction in Playboy's revenues because 30 to 50 percent of adult programming was viewed before 10 p.m.9
Playboy filed suit in a three-judge District Court.10 It obtained a temporary restraining order on March 7, 1996.11 After the FCC began enforcement on May 18, 1997, the court held a full trial in March 1998.12
At trial the Government presented anecdotal evidence of complaints from two city councilors, eighteen individuals, one senator, and officials of one city.13 The Government also presented an expert estimate that 39 million homes with 29.5 million children had the potential to be exposed to signal bleed.14 A survey showed fewer than 0.5 percent of subscribers requested blocking under Section 504 during the period when Section 505 was enjoined.15 The District Court found the Government had not quantified the actual extent of signal bleed.16 It also found that Section 504 supplemented with adequate notice could serve as an effective alternative.17 The District Court declared Section 505 unconstitutional and enjoined its enforcement. The United States filed a direct appeal.18 The Supreme Court noted probable jurisdiction in 1999.19
Whether Section 505 of the Telecommunications Act of 1996 violates the First Amendment as a content-based restriction on protected speech?20
Yes. Section 505 applies only to channels primarily dedicated to sexually explicit adult programming and singles out particular programmers such as Playboy, making it a content-based restriction subject to strict scrutiny.23 The statute forces most operators to time channel, silencing protected speech for two-thirds of the day regardless of household composition or viewer choice.24 The District Court identified Section 504 with adequate notice as a plausible less restrictive alternative that would allow household-by-household blocking without the blanket daytime ban.25
The Government failed to prove that this alternative would be ineffective, as its evidence of signal bleed consisted only of anecdotes and an unverified estimate rather than quantified proof of a pervasive problem.26 The Government bears the burden to prove that a less restrictive alternative is ineffective when it restricts speech based on content.27
Section 505 violates the First Amendment because the Government did not prove it was the least restrictive means of serving its compelling interest.28
Related opinions on this issue
Justice Stevens filed a concurring opinion to address Justice Scalia's argument that the programming could be treated as obscene because of its advertising.29 He explained that Ginzburg v. United States rested on a legal fiction premised upon a logical bait and switch, where advertising a bareheaded dancer as "topless" might be deceptive but would not make her performance obscene.30 Stevens noted that Ginzburg was decided before the Court extended First Amendment protection to commercial speech in Virginia Bd.
of Pharmacy v. Virginia Citizens Consumer Council, Inc.31 He emphasized that the First Amendment assumes information is not harmful and that people will perceive their own best interests if well informed, so the best means is to open channels of communication rather than close them.32 Thus, the programs marketed by Playboy remain protected speech, and truthful statements about their content are protected even if the content is offensive to many viewers.33
Justice Thomas filed a concurring opinion emphasizing that the case was litigated on the assumption the programming is indecent but not obscene.34 He stated he would not dilute strict scrutiny or assume obscenity without factual findings or advocacy by the Government in this Court.35 Thomas joined the majority because the Government asked the Court to uphold the statute under standards applicable to protected speech.36
He refused to corrupt First Amendment doctrine to reach a different result even though he believed some programming might qualify as obscene under Miller v. California in other circumstances.37 Thomas stressed that the starch in constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.38
Whether the Government proved that Section 504 with adequate notice would be an ineffective less restrictive alternative to Section 505?39
When a plausible less restrictive alternative is offered to a content-based speech restriction, the Government bears the burden of proving that the alternative will be ineffective to achieve its goals.40
No. The Government did not carry its burden of proving Section 504 with adequate notice would be ineffective.41 During the period when Section 505 was enjoined, fewer than 0.5 percent of subscribers requested blocking under Section 504, but the District Court found this tepid response equally consistent with inadequate notice or a less serious bleed problem than the Government claimed.42 The record contained no survey evidence quantifying actual household exposure to signal bleed and only a handful of complaints over sixteen years.43 The Government also failed to show that better-promoted notice under Section 504 would not inform parents of their blocking rights or that the alternative could not be effective with proper implementation.44
The Government failed to prove that Section 504 with adequate notice would be an ineffective less restrictive alternative to Section 505.45
Related opinions on this issue
Justice Scalia filed a dissenting opinion arguing that Section 505 regulates the business of obscenity through pandering.46 He contended that channels primarily dedicated to sexually oriented programming advertise their content as prurient, placing them outside First Amendment protection under Ginzburg v. United States.47 Scalia viewed the statute as a permissible regulation of commercial exploitation of erotica rather than protected speech, making the least-restrictive-means analysis unnecessary.48
He noted that Playboy itself illustrates the type of business the statute targets by describing its programming in explicitly sexual terms and advertising it accordingly.49 Scalia concluded that the Government is free to block these transmissions entirely and may therefore take the less drastic step of dictating how and during what times they may occur.50
Joined by Rehnquist, C. J., And O'connor, J., And Scalia, J.
Justice Breyer filed a dissenting opinion, joined by the Chief Justice and Justices O'Connor and Scalia.51 He argued that the record demonstrated a serious nationwide problem of signal bleed exposing millions of children to sexually explicit material.52 Breyer maintained that Section 504's opt-out mechanism was not similarly effective because many parents would remain unaware of their rights or fail to act due to inertia or distraction.53
He concluded that Section 505's burden on speech was proportionate to the compelling interest in protecting children when parents are unavailable or uninformed.54 Breyer contended that the majority applied the less-restrictive-alternative test too rigidly without a realistic assessment of practical alternatives facing Congress.55 He emphasized that the statute increases costs for adult channel broadcasting without banning adult speech and that prior cases permit such measured restrictions to aid parents.56