Cite as: 529 U. S. 803 (2000)
Breyer, J., dissenting
true-but-inadequate as the conclusion that Al Capone did not accurately report his income. It is not only children who can be protected from occasional uninvited exposure to what appellee calls "adult-oriented programming"; we can all be. Section 505 covers only businesses that engage in the "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg, 383 U. S., at 466—which, as Playboy's own advertisements make plain, is what "adult" programming is all about. In most contexts, contemporary American society has chosen to permit such commercial exploitation. That may be a wise democratic choice, if only because of the difficulty in many contexts (though not this one) of identifying the panderer to sex. It is, however, not a course compelled by the Constitution. Since the Government is entirely free to block these transmissions, it may certainly take the less drastic step of dictating how, and during what times, they may occur.
Justice Breyer, with whom The Chief Justice, Justice O'Connor, and Justice Scalia join, dissenting.
This case involves the application, not the elucidation, of First Amendment principles. We apply established First Amendment law to a statute that focuses upon the broadcast of "sexually explicit adult programming" on AdulTVision, Adam & Eve, Spice, and Playboy cable channels. These channels are, as the statute requires, "primarily dedicated to sexually-oriented programming." Telecommunications Act of 1996, Pub. L. 104-104, § 505(a), 110 Stat. 136, 47 U. S. C. § 561(a) (1994 ed., Supp. III). Section 505 prohibits cable operators from sending these adult channels into the homes of viewers who do not request them. In practice, it requires a significant number of cable operators either to upgrade their scrambling technology or to avoid broadcasting these channels during daylight and evening hours (6 a.m. to 10 p.m.). We must decide whether the First Amendment permits Congress to enact this statute.
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