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 proposal is thus not only anachronistic, it also overlooks a key premise upon which our commercial speech cases are based. The First Amendment assumes that, as a general matter, "information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them." Id., at 770. The very fact that the programs marketed by Playboy are offensive to many viewers provides a justification for protecting, not penalizing, truthful statements about their content.
Justice Thomas, concurring.
It would seem to me that, with respect to at least some of the cable programming affected by § 505 of the Telecommunications 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 standards applicable in many communities, some of the programming 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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