828
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 otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it. "(b) 'Scramble' defined
"As used in this section, the term 'scramble' means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an understandable manner."
Justice Stevens, concurring.
Because Justice Scalia has advanced an argument that the parties have not addressed, a brief response is in order. Relying on Ginzburg v. United States, 383 U. S. 463 (1966), Justice Scalia would treat programs whose content is, he assumes, protected by the First Amendment as though they were obscene because of the way they are advertised. The four separate dissenting opinions in Ginzburg, authored by Justices Black, Harlan, Douglas, and Stewart, amply demonstrated the untenable character of the Ginzburg decision when it was rendered. The Ginzburg theory of obscenity is a legal fiction premised upon a logical bait and switch; adver-
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