834
Scalia, J., dissenting
"virtually 100% sexually explicit adult programming." 30 F. Supp. 2d 702, 707 (Del. 1998). For example, on its Spice network, Playboy describes its own programming as depicting such activities as "female masturbation/external," "girl/ girl sex," and "oral sex/cunnilingus." 1 Record, Exh. 73, p. TWC00132. As one would expect, given this content, Playboy advertises accordingly, with calls to "Enjoy the sexiest, hottest adult movies in the privacy of your own home." 6 id., Exh. 136, at 2P009732. An example of the promotion for a particular movie is as follows: "Little miss country girls are aching for a quick roll in the hay! Watch southern hospitality pull out all the stops as these ravin' nymphos tear down the barn and light up the big country sky." 7 id., Exh. 226, at 2P009187. One may doubt whether—or marvel that—this sort of embarrassingly juvenile promotion really attracts what Playboy assures us is an "adult" audience. But it is certainly marketing sex.3
Thus, while I agree with Justice Breyer's child-protection analysis, it leaves me with the same feeling of
3 Both the Court, see ante, at 811, and Justice Thomas, see ante, at 830 (concurring opinion), find great importance in the fact that "this case has been litigated on the assumption that the programming at issue is not obscene, but merely indecent," see ibid. (emphasis deleted). But as I noted in FW/PBS, Inc. v. Dallas, 493 U. S. 215, 262-263 (1990) (opinion concurring in part and dissenting in part), we have not allowed the parties' litigating positions to place limits upon our development of obscenity law. See, e. g., Miller v. California, 413 U. S. 15, 24-25 (1973) (abandoning "utterly without redeeming social value" test sua sponte); Ginzburg v. United States, 383 U. S. 463 (1966) (adopting pandering theory unargued by the Government); Mishkin v. New York, 383 U. S. 502 (1966) (upholding convictions on theory that obscenity could be defined by looking to the intent of the disseminator, despite respondent's express disavowal of that theory). As for Justice Thomas's concern that there has been no factual finding of obscenity in this case, see ante, at 830 (concurring opinion): This is not an as-applied challenge, in which the issue is whether a particular course of conduct constitutes obscenity; it is a facial challenge, in which the issue is whether the terms of this statute address obscenity. That is not for the factfinder below, but for this Court.
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