Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
rule based upon similar reasoning, believing that it would "deter unreasonable searches," Oregon v. Elstad, 470 U. S. 298, 306 (1985), by removing an officer's "incentive to disregard [the Fourth Amendment]," Elkins v. United States, 364 U. S. 206, 217 (1960).7
The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the interest of protecting the privacy of individual communications. Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection. Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion. The law against interceptions, which the Court agrees is valid, would be utterly ineffectual without these antidisclosure provisions.
For a similar reason, we upheld against First Amendment challenge a law prohibiting the distribution of child pornography. See New York v. Ferber, 458 U. S. 747 (1982). Just as with unlawfully intercepted electronic communications, we there noted the difficulty of policing the "low-profile, clandestine industry" of child pornography production and concurred with 36 legislatures that "[t]he most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product." Id., at 760. In so doing, we did not demand, nor did Congress provide, any empirical
7 In crafting the exclusionary rule, we did not first require empirical evidence. See Elkins, 364 U. S., at 218 ("Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained"). When it comes to this Court's awesome power to strike down an Act of Congress as unconstitutional, it should not be "do as we say, not as we do."
551
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