Cite as: 529 U. S. 803 (2000)
Breyer, J., dissenting
Case law does not mandate the Court's result. To the contrary, as I have pointed out, our prior cases recognize that, where the protection of children is at issue, the First Amendment poses a barrier that properly is high, but not insurmountable. It is difficult to reconcile today's decision with our foundational cases that have upheld similar laws, such as FCC v. Pacifica Foundation, 438 U. S. 726 (1978), and Ginsberg v. New York, 390 U. S. 629 (1968). It is not difficult to distinguish our cases striking down such laws— either because they applied far more broadly than the narrow regulation of adult channels here, see, e. g., Reno v. American Civil Liberties Union, 521 U. S. 844 (1997), imposed a total ban on a form of adult speech, see, e. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Bolger v. Youngs Drug Products Corp., 463 U. S. 60 (1983), or because a less restrictive, similarly effective alternative was otherwise available, see, e. g., Denver Area, 518 U. S., at 753-760.
Nor is it a satisfactory answer to say, as does Justice Thomas, that the Government remains free to prosecute under the obscenity laws. Ante, at 829-830. The obscenity exception permits censorship of communication even among adults. See, e. g., Miller v. California, 413 U. S. 15 (1973). It must be kept narrow lest the Government improperly interfere with the communication choices that adults have freely made. To rely primarily upon law that bans speech for adults is to overlook the special need to protect children.
Congress has taken seriously the importance of maintaining adult access to the sexually explicit channels here at issue. It has tailored the restrictions to minimize their impact upon adults while offering parents help in keeping unwanted transmissions from their children. By finding "adequate alternatives" where there are none, the Court reduces Congress' protective power to the vanishing point. That is not what the First Amendment demands.
I respectfully dissent.
847
Page: Index Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45Last modified: October 4, 2007