Cite as: 529 U. S. 803 (2000)
Scalia, J., dissenting
might not hold itself forth as primarily dedicated to sex—in which case its productions which contain "serious literary, artistic, political, or scientific value" (if any) would be as entitled to First Amendment protection as the statuary rooms of the National Gallery. But in the competitive world of cable programming, the possibility that a channel devoted to sex would not advertise itself as such is sufficiently remote, and the number of such channels sufficiently small (if not indeed nonexistent), as not to render the provision substantially overbroad.2
Playboy itself illustrates the type of business § 505 is designed to reach. Playboy provides, through its networks— Playboy Television, AdulTVision, Adam & Eve, and Spice—
2 Justice Stevens misapprehends in several respects the nature of the test I would apply. First, he mistakenly believes that the nature of the advertising controls the obscenity analysis, regardless of the nature of the material being advertised. I entirely agree with him that "advertising a bareheaded dancer as 'topless' might be deceptive, but it would not make her performance obscene." Ante, at 828-829 (concurring opinion). I believe, however, that if the material is "patently offensive" and it is being advertised as such, we have little reason to think it is being proffered for its socially redeeming value.
Justice Stevens's second misapprehension flows from the first: He sees the test I would apply as incompatible with the Court's commercial-speech jurisprudence. See ante, at 829 (concurring opinion); see also Splawn v. California, 431 U. S. 595, 603, n. 2 (1977) (Stevens, J., dissenting) ("Ginzburg cannot survive [Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976)]"). There is no such conflict. Although the Ginzburg test, like most obscenity tests, has ordinarily been applied in a commercial context (most purveyors of obscenity are in the business for the money), its logic is not restricted to that context. The test applies equally to the improbable case in which a collector of indecent materials wishes to give them away, and takes out a classified ad in the local newspaper touting their salacious appeal. Commercial motive or not, the " '[c]ircumstances of . . . dissemination are relevant to determining whether [the] social importance claimed for [the] material [is] . . . pretense or reality.' " Splawn, supra, at 598 (quoting jury instruction approved). Perhaps this is why the Court in Splawn did not accept Justice Stevens's claim of incompatibility.
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