United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 41 (2000)

Page:   Index   Previous  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  Next

Cite as: 529 U. S. 803 (2000)

Breyer, J., dissenting

minors from accessing sexually explicit materials in the absence of parental supervision. See Ginsberg, supra, at 640.

By definition, § 504 does nothing at all to further the compelling interest I have just described. How then is it a similarly effective § 505 alternative?

The record, moreover, sets forth empirical evidence showing that the two laws are not equivalent with respect to the Government's objectives. As the majority observes, during the 14 months the Government was enjoined from enforcing § 505, "fewer than 0.5% of cable subscribers requested full blocking" under § 504. Ante, at 816. The majority describes this public reaction as "a collective yawn," ibid., adding that the Government failed to prove that the "yawn" reflected anything other than the lack of a serious signal bleed problem or a lack of notice which better information about § 504 might cure. The record excludes the first possibility— at least in respect to exposure, as discussed above. See supra, at 839-840. And I doubt that the public, though it may well consider the viewing habits of adults a matter of personal choice, would "yawn" when the exposure in question concerns young children, the absence of parental consent, and the sexually explicit material here at issue. See ante, at 833-834 (Scalia, J., dissenting).

Neither is the record neutral in respect to the curative power of better notice. Section 504's opt-out right works only when parents (1) become aware of their § 504 rights, (2) discover that their children are watching sexually explicit signal "bleed," (3) reach their cable operator and ask that it block the sending of its signal to their home, (4) await installation of an individual blocking device, and, perhaps (5) (where the block fails or the channel number changes) make a new request. Better notice of § 504 rights does little to help parents discover their children's viewing habits (step 2). And it does nothing at all in respect to steps 3 through 5. Yet the record contains considerable evidence that those problems matter, i. e., evidence of endlessly delayed phone

843

Page:   Index   Previous  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  Next

Last modified: October 4, 2007