Cite as: 529 U. S. 803 (2000)
Breyer, J., dissenting
The words I have just emphasized, "similarly" and "effective," are critical. In an appropriate case they ask a judge not to apply First Amendment rules mechanically, but to decide whether, in light of the benefits and potential alternatives, the statute works speech-related harm (here to adult speech) out of proportion to the benefits that the statute seeks to provide (here, child protection).
These words imply a degree of leeway, however small, for the Legislature when it chooses among possible alternatives in light of predicted comparative effects. Without some such empirical leeway, the undoubted ability of lawyers and judges to imagine some kind of slightly less drastic or restrictive an approach would make it impossible to write laws that deal with the harm that called the statute into being. As Justice Blackmun pointed out, a "judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down." Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 188-189 (1979) (concurring opinion). Used without a sense of the practical choices that face legislatures, "the test merely announces an inevitable [negative] result, and the test is no test at all." Id., at 188.
The majority, in describing First Amendment jurisprudence, scarcely mentions the words "at least as effective"— a rather surprising omission since they happen to be what this case is all about. But the majority does refer to Reno's understanding of less restrictive alternatives, ante, at 813, and it addresses the Government's effectiveness arguments, ante, at 823-826. I therefore assume it continues to recognize their role as part of the test that it enunciates.
I turn then to the major point of disagreement. Unlike the majority, I believe the record makes clear that § 504's opt-out is not a similarly effective alternative. Section 504 (opt-out) and § 505 (opt-in) work differently in order to achieve very different legislative objectives. Section 504
841
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