Various federal officials have spoken in favor of extending the Federal Communication Commission's indecency restriction, which currently applies to broadcast television and radio, to cable and satellite television. This report examines whether such an extension would violate the First Amendment's guarantee of freedom of speech. The FCC's indecency restriction was enacted pursuant to a federal statute that, insofar as it was found constitutional, requires the FCC to promulgate regulations to prohibit the broadcast of indecent programming from 6 a.m. to 10 p.m. The FCC has found that, for material to be "indecent," it "must describe or depict sexual or excretory organs or activities," and "must be patently offensive as measured by contemporary community standards for the broadcast medium." Another federal statute makes it a crime to utter "any obscene, indecent, or profane language by means of radio communication." This statute has been applied to pictures as well as words and to broadcast television as well as radio. In Federal Communications Commission v. Pacifica Foundation , the Supreme Court held that the statute does not violate the First Amendment when enforced during hours when children are likely to be in the audience. The Court in Pacifica explained: [O]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity." Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo , 418 U.S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC , 395 U.S. 367. The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. Second, broadcasting is uniquely accessible to children, even those too young to read. . . . Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York , 390 U.S. 629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. . . . In sum, the Court held that, because broadcast radio and television have a "uniquely pervasive presence" and are "uniquely accessible to children," the government may, during certain times of day, prohibit "[p]atently offensive, indecent material" on these media, as such material threatens the well-being of minors and their parents' authority in their own household. Since 1978, however, when the Court decided Pacifica , cable television has become more pervasive, thereby rendering broadcast media a less "uniquely pervasive presence." In Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission , a Supreme Court plurality held that, with respect to "how pervasive and intrusive [television] programming is . . . cable and broadcast television differ little, if at all." If cable and broadcast television differ little, if at all, then, one might argue, they should be treated alike with regard to indecency restrictions. But does this mean, if one accepts that argument, that cable should be treated like broadcast or that broadcast should be treated like cable? In other words, should cable be made subject to the FCC's indecency restriction, or should broadcast no longer be subject to them? This report will consider these questions from a constitutional standpoint, not from a policy standpoint. Although one might argue that the fact that broadcast media is no longer uniquely pervasive should render Pacifica invalid, no court has found that to be the case, and the Supreme Court has cited Pacifica with approval in recent years. The FCC's indecency restriction, therefore, appears to remain constitutional as applied to broadcast media. But would it be constitutional to apply the indecency restriction to cable? In United States v. Playboy Entertainment Group, Inc., the Supreme Court held that a content-based speech restriction on cable television "can stand only if it satisfies strict scrutiny. If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative. To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit. . . . It is rare that a regulation restricting speech because of its content will ever be permissible." The indecency restriction is content-based; therefore, for its application to cable television to be constitutional, it must meet "strict scrutiny," which means that it must promote a compelling governmental interest and be the least restrictive means to do so. This is the same standard that the Supreme Court applies to speech in newspapers, the Internet, and every other medium except broadcast radio and television. The Court does not apply strict scrutiny to broadcast media because, as noted in the above quotation from Pacifica , the Court holds that broadcast media have less First Amendment protection than other media. The Court, therefore, did not apply strict scrutiny in Pacifica , and the fact that in Pacifica it upheld the constitutionality of the indecency restriction as applied to broadcast media does not imply that it would uphold its constitutionality as applied to cable. Playboy concerned federal restrictions on a type of "indecent" material on cable television: "signal bleed," which refers to images or sounds that come through to non-subscribers, even though cable operators have "used scrambling in the regular course of business, so that only paying customers had access to certain programs." These restrictions, which are found in section 505 of the Communications Decency Act of 1996, require operators of cable channels "primarily dedicated to sexually-oriented programming" to implement more effective scrambling—to fully scramble or otherwise fully block programming so that non-subscribers do not receive it—or to "time channel," which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. "To comply with the statute," the Court noted, "the majority of cable operators adopted the second, or 'time channeling,' approach. The effect . . . was to eliminate altogether the transmission of the targeted programming outside the safe harbor period [6 a.m. to 10 p.m.] in affected cable service areas. In other words, for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so." The Court also noted that "[t]he speech in question was not thought by Congress to be so harmful that all channels were subject to restriction. Instead, the statutory disability applies only to channels 'primarily dedicated to sexually-oriented programming.'" The Court then applied strict scrutiny to section 505. It did not explicitly say that shielding children from sexually oriented signal bleed was a compelling interest, but it would "not discount the possibility that a graphic image could have a negative impact on a young child." This suggests the possibility that, even if shielding young children from seeing graphic images on cable television is a compelling governmental interest, the Court might not find that shielding older children from such images is a compelling governmental interest. In addition, the Court rejected another interest as compelling: "Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." In any case, it was not necessary for the Court to make an explicit finding of a compelling governmental interest, because it held the statute unconstitutional for not constituting the least restrictive means to advance any such interest. The Court noted that there is "a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis. . . . [T]argeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners . . . ." Furthermore, targeted blocking is already required—by section 504 of the Communications Decency Act, which requires cable operators, upon request by a cable service subscriber, to, without charge, fully scramble or otherwise fully block audio and video programming that the subscriber does not wish to receive. "When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goal. The Government has not met that burden here." The Court concluded, therefore, that section 504, with adequate publicity to parents of their rights under it, constituted a less restrictive alternative to section 505. We now consider how a court might apply strict scrutiny in determining whether applying the FCC's indecency restriction to cable television would be constitutional. We consider first whether a court would find that applying the restriction to cable television would serve a compelling governmental interest, and then, on the assumption that it would, we consider whether a court would find it the least restrictive means to advance that interest.