United States v. Playboy Entertainment Group, Inc. — Scalia, J., Dissenting

Summary

Justice Scalia, dissenting, would uphold § 505 on the ground that it regulates the commercial pandering of sexually explicit material rather than protected speech, even assuming the programming itself is merely indecent. He reasoned that channels devoted primarily to sexually explicit programming and marketed for sexual titillation fall outside First Amendment protection under the circumstances-of-dissemination approach, and that Congress could at least regulate when those transmissions occur. Justice Breyer, dissenting, separately defended § 505 under strict scrutiny as an effective and narrowly tailored means of protecting children, while Justices Thomas and Stevens wrote separate concurrences supporting the judgment on different grounds or responding to Scalia's theory.