Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 81 (1996)

Page:   Index   Previous  74  75  76  77  78  79  80  81  82  83  84  85  86  87  88  Next

Cite as: 518 U. S. 727 (1996)

Opinion of Kennedy, J.

interest in protecting children from indecency only at the caprice of the cable operator is not compelling. Perhaps Congress drafted the law this way to avoid the clear constitutional difficulties of banning indecent speech from access channels, but the First Amendment does not permit this sort of ill fit between a law restricting speech and the interest it is said to serve.

Second, to the extent cable operators prohibit indecent programming on access channels, not only children but adults will be deprived of it. The Government may not "reduce the adult population . . . to [viewing] only what is fit for children." Butler v. Michigan, 352 U. S. 380, 383 (1957). It matters not that indecent programming might be available on the operator's other channels. The Government has no legitimate interest in making access channels pristine. A block-and-segregate requirement similar to § 10(b), but without its constitutional infirmity of requiring persons to place themselves on a list to receive programming, see ante, at 756-757, protects children with far less intrusion on the liberties of programmers and adult viewers than allowing cable operators to ban indecent programming from access channels altogether. When applying strict scrutiny, we will not assume plausible alternatives will fail to protect compelling interests; there must be some basis in the record, in legislative findings or otherwise, establishing the law enacted as the least restrictive means. Sable Communications, supra, at 128-130. Cf. Turner Broadcasting, 512 U. S., at 664-668. There is none here.

Sections 10(a) and (c) present a classic case of discrimination against speech based on its content. There are legitimate reasons why the Government might wish to regulate or even restrict the speech at issue here, but §§ 10(a) and (c) are not drawn to address those reasons with the precision the First Amendment requires.

807

Page:   Index   Previous  74  75  76  77  78  79  80  81  82  83  84  85  86  87  88  Next

Last modified: October 4, 2007