832
Scalia, J., dissenting
431 U. S. 595, 597-599 (1977); Hamling v. United States, 418 U. S. 87, 130 (1974). Cf. Jacobellis v. Ohio, 378 U. S. 184, 201 (1964) (Warren, C. J., dissenting) ("In my opinion, the use to which various materials are put—not just the words and pictures themselves—must be considered in determining whether or not the materials are obscene"). This is so whether or not the products in which the business traffics independently meet the high hurdle we have established for delineating the obscene, viz., that they contain no "serious literary, artistic, political, or scientific value." Miller, supra, at 24. See Ginzburg, 383 U. S., at 471. We are more permissive of government regulation in these circumstances because it is clear from the context in which exchanges between such businesses and their customers occur that neither the merchant nor the buyer is interested in the work's literary, artistic, political, or scientific value. "The deliberate representation of petitioner's publications as erotically arousing . . . stimulate[s] the reader to accept them as prurient; he looks for titillation, not for saving intellectual content." Id., at 470. Thus, a business that "(1) offer[s] . . . hardcore sexual material, (2) as a constant and intentional objective of [its] business, [and] (3) seek[s] to promote it as such" finds no sanctuary in the First Amendment. FW/ PBS, supra, at 261 (Scalia J., concurring in part and dissenting in part).
Section 505 regulates just this sort of business. Its coverage is limited to programming that "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards [for cable television]." 47 CFR § 76.227(d) (1999) (emphasis added). It furthermore applies only to those channels that are "primarily dedicated to sexually-oriented programming." 1 § 505(a) (emphasis added). It is conceivable, I suppose, that a channel which is primarily dedicated to sex
1 Congress's attempt to limit the reach of § 505 is therefore, contrary to the Court's contention, see ante, at 812, a virtue rather than a vice.
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