830
Thomas, J., concurring
tion of the United States shall be fined under title 18 or imprisoned not more than 2 years, or both").*
However, as the Court points out, this case has been litigated on the assumption that the programming at issue is not obscene, but merely indecent. We have no factual finding that any of the materials at issue are, in fact, obscene. Indeed, the District Court described the materials as indecent 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 programming 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 regulation 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 Government also lodged videotapes containing signal bleed from these channels. 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 contained 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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