552
Rehnquist, C. J., dissenting
evidence to buttress this basic syllogism. Indeed, we reaffirmed the theory's vitality in Osborne v. Ohio, 495 U. S. 103, 109-110 (1990), finding it "surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand." 8
At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in place of the reasoned judgment of 41 legislative bodies and the United States Congress.9 The Court does not explain how or from where Congress should obtain statistical evidence about the effectiveness of these laws, and "[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled." Elkins, supra, at 218. Reliance upon the "dry-up-the-market" the-8 The Court attempts to distinguish Ferber and Osborne on the ground that they involved low-value speech, but this has nothing to do with the reasonableness of the "dry-up-the-market" theory. The Court also posits that Congress here could simply have increased the penalty for intercepting cellular communications. See ante, at 529. But the Court's back-seat legislative advice does nothing to undermine the reasonableness of Congress' belief that prohibiting only the initial interception would not effectively protect the privacy interests of cellular telephone users.
9 The Court observes that in many of the cases litigated under § 2511(1), "the person or persons intercepting the communication ha[ve] been known." Ante, at 530. Of the 206 cases cited in the appendices, 143 solely involved § 2511(1)(a) claims of wrongful interception—disclosure was not at issue. It is of course unremarkable that intentional interception cases have not been pursued where the identity of the eavesdropper was unknown. Of the 61 disclosure and use cases with published facts brought under §§ 2511(1)(c) and (d), 9 involved an unknown or unproved eavesdropper, 1 involved a lawful pen register, and 5 involved recordings that were not surreptitious. Thus, as relevant, 46 disclosure cases involved known eavesdroppers. Whatever might be gleaned from this figure, the Court is practicing voodoo statistics when it states that it undermines the "dry-up-the-market" theory. See ante, at 531, n. 17. These cases say absolutely nothing about the interceptions and disclosures that have been deterred.
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