Action for Children's Television v. Federal Communications Commission

58 F.3d 654, 313 U.S. App. D.C. 94

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 30, 1995
• Docket: Nos. 93-1092, 93-1100
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge BUCKLEY, in which Circuit Judges SILBERMAN, STEPHEN F. WILLIAMS, GINSBURG, SENTELLE, KAREN LeCRAFT HENDERSON, and RANDOLPH concur.

Dissenting opinion filed by Chief Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge WALD, in which Circuit Judges ROGERS and TATEL join.

BUCKLEY, Circuit Judge:

We are asked to determine the constitutionality of section 16(a) of the Public Telecommunications Act of 1992, which seeks to shield minors from indecent radio and television programs by restricting the hours within which they may be broadcast. Section 16(a) provides that, with one exception, indecent materials may only be broadcast between the hours of midnight and 6:00 a.m. The exception permits public radio and television stations that go off the air at or before midnight to broadcast such materials after 10:00 p.m.

We find that the Government has a compelling interest in protecting children under the age of 18 from exposure to indecent broadcasts. We are also satisfied that, standing alone, the “channeling” of indecent broadcasts to the hours between midnight and 6:00 a.m. would not unduly burden the First Amendment. Because the distinction drawn by Congress between the two categories of broadcasters bears no apparent relationship to the compelling Government interests that section 16(a) is intended to serve, however, we find the more restrictive limitation unconstitutional. Accordingly, we grant the petitions for review and remand the cases to the Federal Communications Commission with instructions to revise its regulations to permit the broadcasting of indecent material between the hours of 10:00 p.m. and 6:00 a.m.

I. BACKGROUND

The Radio Act of 1927 provides that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.” 18 U.S.C. § 1464 (1988). While all obscene speech is indecent, not all indecent speech is obscene. The Supreme Court has defined obscene material as

works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). In enforcing section 1464 of the Radio Act, the Federal Communications Commission defines “broadcast indecency” as

language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.

In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 8 F.C.C.R. 704, 705 n. 10 (1993) (“1993 Report and Order”). This definition has remained substantially unchanged since it was first enunciated in In re Pacifica Foundation, 56 F.C.C.2d 94, 98 (1975).

While obscene speech is not accorded constitutional protection, “[s]exual expression which is indecent but not obscene is protected by the First Amendment....” Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989). “The Government may, however, regulate the content of [such] constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.” Id. Noting that broadcasting has received the most limited First Amendment protection because of its unique pervasiveness and accessibility to children, the Supreme Court has held that the FCC may, in appropriate circumstances, place restrictions on the broadcast of indecent speech. See FCC v. Pacifica Foundation, 438 U.S. 726, 750-51, 98 S.Ct. 3026, 3041, 57 L.Ed.2d 1073 (1978) (“when the Commission finds that a pig has' entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene”).

In In re Infinity Broadcasting Corp. of Pa., 3 F.C.C.R. 930 (1987) (“Reconsideration Order”), the Commission reviewed its decisions in three cases: In re Infinity Broadcasting Corp. of Pa., 2 F.C.C.R. 2705 (1987), In re Pacifica Foundation, Inc., 2 F.C.C.R. 2698 (1987), and In re Regents of the University of California, 2 F.C.C.R. 2703 (1987). One of these cases involved a morning broadcast; the other two dealt with programs that were aired after 10:00 p.m. In each of them, the agency found that a radio station had introduced particularly offensive pigs into American parlors in violation of section 1464. The offending morning broadcast, for example, contained “explicit references to masturbation, ejaculation, breast size, penis size, sexual intercourse, nudity, urination, oral-genital contact, erections, sodomy, bestiality, menstruation and testicles.” Reconsideration Order, 3 F.C.C.R. at 932 (internal quotation marks omitted). The remaining two were similarly objectionable. See id. at 932-33.

The FCC reaffirmed the Government interest in safeguarding children from exposure to such speech and placed broadcasters on notice that because

at least with respect to the particular markets involved, available evidence suggested there were still significant numbers of children in the audience at 10:00 p.m. ... broadcasters should no longer assume that 10:00 p.m. is automatically the time after which indecent broadcasts may safely be aired. Rather, ... indecent material would be actionable (that is, would be held in violation of 18 U.S.C. § 1464) if broadcast when there is a reasonable risk that children may be in the audience....

Id. at 930-31. The Commission noted, however, that it was its “current thinking” that midnight marked the time after which

it is reasonable to expect that it is late enough to ensure that the risk of children in the audience is minimized and to rely on parents to exercise increased supervision over whatever children remain in the viewing and listening audience.

Id. at 937 n. 47.

In our review of the Reconsideration Order in Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C.Cir.1988) (“ACT I”), we rejected the argument that the Commission’s definition of indecency was unconstitutionally vague and overbroad. Id. at 1338-40. But although we affirmed the declaratory ruling that found portions of the morning broadcast to be in violation of section 1464, id. at 1341, we vacated the Commission’s rulings with respect to the two post-10:00 p.m. broadcasts. Id. In those instances, we considered the findings on which the Commission rested its decision to be “more ritual than real,” id., because the Commission had relied on data as to the number of teenagers in the total radio audience rather than the number of them who listened to the radio stations in question. We were also troubled by the FCC’s failure to explain why it identified the relevant age group as children aged 12 to 17 when it had earlier proposed legislation for the protection of only those under 12. Id. at 1341-42. We further concluded that “the FCC’s midnight advice, indeed its entire position on channeling, was not adequately thought through.” Id. at 1342.

Two months after our decision in ACT I, Congress instructed the Commission to promulgate regulations “enforcing] the provisions of ... section [1464] on a 24 hour per day basis.” Pub.L. No. 100-459, § 608, 102 Stat. 2186, 2228 (1988). The Commission complied by issuing a regulation banning all broadcasts of indecent material, which was immediately challenged by Action for Children’s Television and others. The following year, we remanded the record to the Commission to enable it to solicit information relevant to the congressionally mandated 24-hour ban; and in 1989, the FCC issued a “Notice of Inquiry” for that purpose. In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 4 F.C.C.R. 8358 (1989) (“1989 NOI”).

After analyzing the public comment received in response to the 1989 NOI, the Commission reported its conclusions in In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1161, 5 F.C.C.R. 5297 (1990) (“1990 Report”). In the 1990 Report, the FCC defined the category of persons to be protected under section 1464 as “children ages 17 and under.” Id. at 5301. It then found that because

the narrowness with which courts have interpreted “obscenity” has commensur-ably broadened the range of patently offensive material that could be deemed “indecent” if broadcast ... [and in light of the evidence] that there is a reasonable risk that significant numbers of children ages 17 and under listen to radio and view television at all times of day and night[,] ... the compelling government interest in protecting children from indecent broadcasts would not be promoted effectively by any means more narrowly tailored than a 24-hour prohibition.

Id. at 5297.

We reviewed the 24-hour ban in Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C.Cir.1991) (“ACT II). We again rejected petitioners’ vagueness and overbreadth arguments, but we struck down the total ban on indecent broadcasts because “[o]ur previous holding in ACT I that the Commission must identify some reasonable period of time during which indecent material may be broadcast necessarily means that the Commission may not ban such broadcasts entirely.” Id. at 1509.

Shortly after the Supreme Court denied certiorari in ACT II, 503 U.S. 913, 112 S.Ct. 1281, 117 L.Ed.2d 507 (1992), Congress again intervened, passing the Public Telecommunications Act of 1992, Pub.L. No. 102-356, 106 Stat. 949 (1992). Section 16(a) of the Act requires the Commission to

promulgate regulations to prohibit the broadcasting of indecent programming—

(1) between 6 a.m. and 10 p.m. on any day by any public radio station or public television station that goes off the air at or before 12 midnight; and

(2) between 6 a.m. and 12 midnight on any day for any radio or television broad-easting station not described in paragraph (1).

47 U.S.C. § 303 note (Supp. IV 1992). Pursuant to this congressional mandate, the Commission published a notice of proposed rulemaking, In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 7 F.C.C.R. 6464 (1992), and, in 1993, it issued regulations implementing section 16(a). 1993 Report and Order, 8 F.C.C.R. at 711; 47 C.F.R. § 73.3999 (1994). These are challenged in the petition now before us.

II. Discussion

Petitioners present three challenges to the constitutionality of section 16(a) and its implementing regulations: First, the statute and regulations violate the First Amendment because they impose restrictions on indecent broadcasts that are not narrowly tailored to further the Government’s interest, which petitioners define as the promotion of parental authority by shielding unsupervised children from indecent speech in the broadcast media; second, section 16(a) unconstitutionally discriminates among categories of broadcasters by distinguishing the times during which certain public and commercial broadcasters may air indecent material; and third, the Commission’s generic definition of indecency is unconstitutionally vague. Petitioners also assert that our decisions in ACT I and ACT II compel the rejection of the newly enacted restrictions both because there are insufficient data to justify the new statutory ban and because the Commission continues to include children ages 12 to 17 in the protected class.

The Commission argues that the Government’s interests extend beyond facilitating parental supervision to include protecting children from exposure to indecent broadcasts and safeguarding the home from unwanted intrusion by such broadcasts. The Commission asserts that restricting indecent broadcasts to the hours between midnight and 6:00 a.m. is narrowly tailored to achieve these compelling governmental interests. It defends the exception allowing public stations that go off the air at or before midnight to broadcast such materials after 10:00 p.m. on the basis that these stations would otherwise have no opportunity to air indecent programs.

At the outset, we dismiss petitioners’ vagueness challenge as meritless. The FCC’s definition of indecency in the new regulations is identical to the one at issue in ACT II, where wé stated that “the Supreme Court’s decision in Pacifica dispelled any vagueness concerns attending the [Commission’s] definition,” as did our holding in ACT I. 932 F.2d at 1508. Petitioners fail to provide any convincing reasons why we should ignore this precedent.

We now proceed to petitioners’ remaining constitutional arguments.

A. The First Amendment Challenge

It is common ground that “[s]exual expression which is indecent but not obscene is protected by the First Amendment.” Sable, 492 U.S. at 126, 109 S.Ct. at 2836. The Government may, however,

regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.

Id. Thus, a restriction on indecent speech will survive First Amendment scrutiny if the “Government’s ends are compelling [and its] means [are] carefully tailored • to achieve those ends.” Id.

The Supreme Court has “long recognized that each medium of expression presents special First Amendment problems.... [0]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection.” Pacifica, 438 U.S. at 748, 98 S.Ct. at 3039-40. (citation omitted). The Court has identified two reasons for this distinction that are relevant here:

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 also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. ... Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. ...

Second, broadcasting is uniquely accessible to children_ Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. ... The ease with which children may obtain access to broadcast material, coupled with the concerns [over the well-being of youths] recognized in Ginsberg [v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) ], amply justifies special treatment of indecent broadcasting.

Id. at 748-50, 98 S.Ct. at 3040-41. As Justice Powell observed in Pacifica,

[t]he difficulty is that ... a physical separation of the audience [such as that possible in bookstores and movie theaters] cannot be accomplished in the broadcast media. ... This ... is one of the distinctions between the broadcast and other media ... [that] justifies] a different treatment of the broadcast media for First Amendment purposes.

438 U.S. at 758-59, 98 S.Ct. at 3045 (Powell, J., concurring in part and concurring in the judgment). Despite the increasing availability of other means of receiving television, such as cable (which is not immune to the concerns we address today, see Alliance for Community Media v. FCC, 56 F.3d 105, 123-125 (D.C.Cir.1995)), there can be no doubt that the traditional broadcast media are properly subject to more regulation than is generally permissible under the First Amendment.

Unlike cable subscribers, who are offered such options as “pay-per-view” channels, broadcast audiences have no choice but to “subscribe” to the entire output of traditional broadcasters. Thus they are confronted without warning with offensive material. See Pacifica, 438 U.S. at 748-49, 98 S.Ct. at 3039-40. This is “manifestly different from a situation” where a recipient “seeks and is willing to pay for the communication....” Sable, 492 U.S. at 128, 109 S.Ct. at 2837; see also Cruz v. Ferre, 755 F.2d 1415, 1420 (11th Cir.1985) (distinguishing Pacifica from eases in which cable subscriber affirmatively elects to have specific cable service come into home).

In light of these differences, radio and television broadcasts may properly be subject to different — and often more restrictive — regulation than is permissible for other media under the First Amendment. While we apply strict scrutiny to regulations of this kind regardless of the medium affected by them, our assessment of whether section 16(a) survives that scrutiny must necessarily take into account the unique context of the broadcast medium.

1. The compelling Government interests

In examining the Government’s interests in protecting children from broadcast indecency, it is important to understand that hard-core pornography may be deemed indecent rather than obscene if it is “not patently offensive” under the relevant contemporary community standards. The Second Circuit, for example, has found that the “detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation” contained in a grab bag of pornographic materials (which included such notorious films as “Deep Throat”) are not obscene in light of the community standards prevailing in New York City. United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir.1983). Therefore, as Justice Scalia has observed,

[t]he more narrow the understanding of what is “obscene,” and hence the more pornographic what is embraced within the residual category of “indecency,” the more reasonable it becomes to insist upon greater assurance of insulation from minors.

Sable, 492 U.S. at 132, 109 S.Ct. at 2840 (Scalia, J., concurring).

The Commission identifies three compelling Government interests as justifying the regulation of broadcast indecency: support for parental supervision of children, a concern for children’s well-being, and the protection of the home against intrusion by offensive broadcasts. Because we find the first two sufficient to support such regulation, we will not address the third.

Petitioners do not contest that the Government has a compelling interest in supporting parental supervision of what children see and hear on the public airwaves. Indeed, the Court has repeatedly emphasized the Government’s fundamental interest in helping parents exercise their “primary responsibility for [their] children’s well-being” with “laws designed to aid [in the] discharge of that responsibility.” Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 196 (1968). This interest includes “supporting parents’ claim to authority in their own household” through “regulation of otherwise protected expression.” Pacifica, 438 U.S. at 749, 98 S.Ct. at 3040 (internal quotation marks omitted).

Although petitioners disagree, we believe the Government’s own interest in the well-being of minors provides an independent justification for the regulation of broadcast indecency. The Supreme Court has described that interest as follows:

It is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.

New York v. Ferber, 458 U.S. 747, 756-57, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982) (internal quotation marks and citations omitted); see also Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (“It is [in] the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed ... citizens.”).

While conceding that the Government has an interest in the well-being of children, petitioners argue that because “no causal nexus has been established between broadcast indecency and any physical or psychological harm to minors,” Joint Brief for Petitioners at 32, that interest is “too insubstantial to justify suppressing indecent material at times when parents are available to supervise their children.” Id. at 33. That statement begs two questions: The first is how effective parental supervision can actually be expected to be even when parent and child are under the same roof; the second, whether the Government’s interest in the well-being of our youth is limited to protecting them from clinically measurable injury.

As Action for Children’s Television argued in an earlier FCC proceeding, “parents, no matter how attentive, sincere or knowledgeable, are not in a position to really exercise effective control” over what their children see on television. In re Action for Children’s Television, 50 F.C.C.2d 17, 26 (1974). This observation finds confirmation from a recent poll conducted by Fairbank, Maslin, Maullin & Associates on behalf of Children Now. The survey found that 54 percent of the 750 children questioned had a television set in their own rooms and that 55 percent of them usually watched television alone or with friends, but not with their families. Sixty-six percent of them lived in a household with three or more television sets. Compare 1989 NOI, 4 F.C.C.R. at 8361 (63 percent of households own more than one television and 50 percent of teenagers have a television in own bedrooms). Studies described by the FCC in its 1989 Notice of Inquiry suggest that parents are able to exercise even less effective supervision over the radio programs to which their children listen. According to these studies, each American household had, on average, over five radios, and up to 80 percent of children had radios in their own bedrooms, depending on the locality studied, id.; two-thirds of all children ages 6 to 12 owned their own radios, more than half of whom owned headphone radios. Id. at 8363. It would appear that Action for Children’s Television had a firmer grasp of the limits of parental supervision 20 years ago than it does today.

With respect to the second question begged by petitioners, the Supreme Court has never suggested that a scientific demon-station of psychological harm is required in order to establish the constitutionality of measures protecting minors from exposure to indecent speech. In Ginsberg, the Court considered a New York State statute forbidding the sale to minors under the age of 17 of literature displaying nudity even where such literature was “not obscene for adults... 390 U.S. at 634, 88 S.Ct. at 1278. The Court observed that while it was “very doubtful” that the legislative finding that such literature impaired “the ethical and moral development of our youth” was based on “accepted scientific fact,” a causal link between them “had not been disproved either.” Id. at 641-42, 88 S.Ct. at 1281-82. The Court then stated that it “d[id] not demand of legislatures scientifically certain criteria of legislation. We therefore cannot say that [the statute] ... has no rational relation to the objective of safeguarding such minors from harm.” Id. at 642-43, 88 S.Ct. at 1282 (internal quotation marks and citations omitted).

In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 3164-65, 92 L.Ed.2d 549 (1986), the Court did not insist on a scientific demonstration of psychic injury when it found that there was a compelling governmental interest in protecting high school students from an indecent speech at a high school assembly. It noted that its prior cases “recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children— especially in a captive audience — from exposure to sexually explicit, indecent, or lewd speech.” Id. In Bethel School District and Ginsberg, of course, the protection of children did not require simultaneous restraints on the access of adults to indecent speech. The Court, however, has made it abundantly clear that the Government’s interest in the “well-being of its youth” justified special treatment of indecent broadcasting. Pacifica, 438 U.S. at 749-50, 98 S.Ct. at 3040-41 (“The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.”); see also Sable, 492 U.S. at 131, 109 S.Ct. at 2839 (“compelling interest [in] preventing minors from being exposed to indecent telephone messages”).

Finally, we think it significant that the Supreme Court has recognized that the Government’s interest in protecting children extends beyond shielding them from physical and psychological harm. The statute that the Corut found constitutional in Ginsberg sought to protect children from exposure to materials that would “impair[ ] [their] ethical and moral development.” 390 U.S. at 641, 88 S.Ct. at 1282 (emphasis added). Furthermore, although the Court doubted that this legislative finding “expresse[d] an accepted scientific fact,” id., it concluded that the legislature could properly support the judgment of

parents and others, teachers for example, who have [the] primary responsibility for children’s well-being ... [by] ... assessing sex-related material harmful to minors according to prevailing standards in the adult community as a whole with respect to what is suitable material for minors.

Id. at 639, 88 S.Ct. at 1280 (internal quotation marks omitted).

The Court noted, in the context of obscenity, that

[i]f we accept the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a ... legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior.... The sum of experience ... affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973). Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sexually explicit material just this side of legal obscenity. The Supreme Court has reminded us that society has an interest not only in the health of its youth, but also in its quality. See Prince, 321 U.S. at 168, 64 S.Ct. at 443 (“A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies.”). As Irving Rristol has observed, it follows “from the proposition that democracy is a form of self-government, ... that if you want it to be a meritorious polity, you have to care about what kind of people govern it.” Irving Kristol, On the Democratic Idea in America 41-42, Harper & Row (1972).

We are not unaware that the vast majority of States impose restrictions on the access of minors to material that is not obscene by adult standards. See 1989 NOI, 4 F.C.C.R. at 8368-72. In light of Supreme Court precedent and the social consensus reflected in state laws, we conclude that the Government has an independent and compelling interest in preventing minors from being exposed to indecent broadcasts. See Sable, 492 U.S. at 126, 109 S.Ct. at 2836 (Government’s compelling interest in well-being of minors extends “to shielding [them] from the influence of literature that is not obscene by adult standards”).

Petitioners argue, nevertheless, that the Government’s interest in supporting parental supervision of children and its independent interest in shielding them from the influence of indecent broadcasts are in irreconcilable conflict. The basic premise of this argument appears to be that the latter interest potentially undermines the objective of facilitating parental supervision for those parents who wish their children to see or hear indecent material.

The Supreme Court has not followed this reasoning. Rather, it treats the Government interest in supporting parental authority and its “independent interest in the well-being of its youth,” Ginsberg, 390 U.S. at 640, 88 S.Ct. at 1281, as complementary objectives mutually supporting limitations on children’s access to material that is not obscene for adults. Id. at 639-40, 88 S.Ct. at 1280-81. And while it is true that the decision in Ginsberg “de-nie[d] to children free access to books ... to which many parents may wish their children to have uninhibited access,” id. at 674, 88 S.Ct. at 1298 (Fortas, J., dissenting), as Justice Brennan pointed out in writing for the majority, “the prohibition against sales to minors [did] not bar parents who so desire[d] from purchasing the [material] for their children.” Id. at 639, 88 S.Ct. at 1280; see also Pacifica, 438 U.S. at 749-50, 98 S.Ct. at 3040-41; id. at 769-70, 98 S.Ct. at 3050-51 (Brennan, J., dissenting).

Today, of course, parents who wish to expose their children to the most graphic depictions of sexual acts will have no difficulty in doing so through the use of subscription and pay-per-view cable channels, delayed-ac-eess viewing using VCR equipment, and the rental or purchase of readily available audio and video cassettes. Thus the goal of supporting “parents’ claim to authority in their own household to direct the rearing of their children,” id., is fully consistent with the Government’s own interest in shielding minors from being exposed to indecent speech by persons other than a parent. Society “may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat.” Paci-fica, 438 U.S. at 758, 98 S.Ct. at 3045 (Powell, J., concurring in part and concurring in the judgment).

The Government’s dual interests in assisting parents and protecting minors necessarily extends beyond merely channeling broadcast indecency to those hours when parents can be at home to supervise what their children see and hear. It is fanciful to believe that the vast majority of parents who wish to shield their children from indecent material can effectively do so without meaningful restrictions on the airing of broadcast indecency-

2. Least restrictive means

The Government may

regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest_ [B]ut to withstand constitutional scrutiny, it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.

Sable, 492 U.S. at 126, 109 S.Ct. at 2836-37 (internal quotation marks omitted). Petitioners argue that section 16(a) is not narrowly drawn to further the Government’s interest in protecting children from broadcast indecency for two reasons: First, they assert that the class to be protected should be limited to children under the age of 12; and second, they contend that the “safe harbor” is not narrowly tailored because it fails to take proper account of the First Amendment rights of adults and because of the chilling effect of the 6:00 a.m. to midnight ban on the programs aired during the evening “prime time” hours. We address these arguments in turn.

a. Definition of “children”

Petitioners concede that it is appropriate to protect young children from exposure to indecent broadcasts. They remind us, however, that in ACT I we found it “troubling [that] the FCC ventures no explanation why it takes teens aged 12-17 to be the relevant age group for channeling purposes” in light of the fact that in an earlier legislative proposal, “the Commission would have required broadcasters to minimize the risk of exposing to indecent material children under age 12,” 852 F.2d at 1341-42 (emphasis in original), and that in ACT II we directed the Commission on remand to address the question of the appropriate definition of “children.” 932 F.2d at 1510.

Although, in ACT II, we made no mention of the fact, in its 1990 Report, the FCC defined “children” to include “children ages 17 and under.” 5 F.C.C.R. at 5301. The agency offered three reasons in support of its definition: Other federal statutes designed to protect children from indecent speech use the same standard (citing 47 U.S.C.A. § 223(b)(3) (Supp. II 1990) (forbidding indecent telephone communications to persons under 18)); most States have laws penalizing persons who disseminate sexually explicit materials to children ages 17 and under; and several Supreme Court decisions have sustained the constitutionality of statutes protecting children ages 17 and under (citing Sable, Ginsberg, and Bethel School District). Id.

We find these reasons persuasive and note, as the Commission did in the 1993 Report and Order promulgating regulations pursuant to section 16(a), that the sponsor of that section, Senator Byrd, made specific reference to the FCC’s finding that “there is a reasonable risk that significant numbers of children ages 17 and under listen to radio and view television at all times of the day or night.” 138 Cong.Rec. § 7308 (1992) (statement of Sen. Byrd). In light of Supreme Court precedent and the broad national consensus that children under the age of 18 need to be protected from exposure to sexually explicit materials, the Commission was fully justified in concluding that the Government interest extends to minors of all ages.

b. The midnight to 6:00 a.m. “safe harbor”

Although, for the reasons set forth in Part II. B. below, we will require the Commission to allow the broadcast of indecent material between 10:00 p.m. and 6:00 a.m., we will address the propriety of section 16(a)’s midnight to 6:00 a.m. safe harbor. We do so for two reasons: First, in addressing the “narrowly tailored” issue, the parties have focused their arguments on the evidence offered by the Commission in support of the section’s 6:00 a.m. to midnight ban on indecent programming. Second, the principles we bring to bear in our analysis of the midnight to 6:00 a.m. safe harbor apply with equal force to the more lenient one that the Commission must adopt as a result of today’s opinion. Although fewer children will be protected by the expanded safe harbor, that fact will not affect its constitutionality. If the 6:00 a.m. to midnight ban on indecent programming is permissible to protect minors who listen to the radio or view television as late as midnight, the reduction of the ban by two hours will remain narrowly tailored to serve this more modest goal.

In Pacifica, the Supreme Court found that it was constitutionally permissible for the Government to place restrictions on the broadcast of indecent speech in order to protect the well-being of our youth. 438 U.S. at , 98 S.Ct. at 3040-41. We have since acknowledged that such restrictions may take the form of channeling provided “that the Commission ... identify some reasonable period of time during which indecent material may be broadcast....” ACT II, 932 F.2d at 1509. The question, then, is what period will serve the compelling governmental interests without unduly infringing on the adult population’s right to see and hear indecent material. We now review the Government’s attempt to strike that balance.

The Supreme Court has stated that “a government body seeking to sustain a restriction on ... speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, — U.S. -, -, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993); see also Turner Broadcasting System, Inc. v. FCC, — U.S. -, -, 114 S.Ct. 2445, 2470, 129 L.Ed.2d 497 (1994) (same). The data on broadcasting that the FCC has collected reveal that large numbers of children view television or listen to the radio from the early morning until late in the evening, that those numbers decline rapidly as midnight approaches, and that a substantial portion of the adult audience is tuned into television or radio broadcasts after midnight. We find this information sufficient to support the safe harbor parameters that Congress has drawn.

The data collected by the FCC and republished in the Congressional Record for June 1, 1992, indicate that while 4.3 million, or approximately 21 percent, of “teenagers” (defined as children ages 12 to 17) watch broadcast television between 11:00 and 11:30 p.m., the number drops to 3.1 million (15.2 percent) between 11:30 p.m. and 1:00 a.m. and to less than 1 million (4.8 percent) between 1:45 and 2:00 a.m. 138 Cong.Ree. S7321. Comparable national averages are not available for children under 12, but the figures for particular major cities are instructive. In New York, for example, 6 percent of those aged 2 to 11 watch television between 11:00 and 11:30 p.m. on weekdays while the figures for Washington, D.C., and Los Angeles are 6 percent and 3 -percent, respectively. Id. at S7322.

Concerning the morning portion of the broadcast restriction, the FCC has produced studies which suggest that significant numbers of children aged 2 through 17 watch television in the early morning hours. In the ease of Seattle, one of two medium-sized media markets surveyed, an average of 102,-200 minors watched television between the hours of 6:00 a.m. and 8:00 a.m., Monday through Friday; in Salt Lake City, the average was 28,000 for the period from 6:00 a.m. to 10:00 a.m. 1993 Report and Order, 8 F.C.C.R. at 708.

The statistical data on radio audiences also demonstrate that there is a reasonable risk that significant numbers of children would be exposed to indecent radio programs if they were broadcast in the hours immediately before midnight. According to the FCC, there is an average quarter-horn¹ radio audience of 2.4 million teenagers, or 12 percent, between 6:00 a.m. and midnight. Id. Just over half that number, 1.4 million teenagers, listen to the radio during the quarter hour between midnight and 12:15 a.m. on an average night. 1990 Report, 5 F.C.C.R. at 5302.

It is apparent, then, that of . the approximately 20.2 million teenagers and 36.3 million children under 12 in the United States, see 1989 NOI, 4 F.C.C.R. at 8366, n. 33; Nielsen Television Index National TV Ratings February 24-March 1, 1992 127, a significant percentage watch broadcast television or listen to radio from as early as 6:00 a.m. to as late as 11:30 p.m.; and in the case of teenagers, even later. We conclude that there is a reasonable risk that large numbers of children would be exposed to any indecent material broadcast between 6:00 a.m. and midnight.

Petitioners suggest that Congress should have used station-specific and program-specific data in assessing when children are at risk of being exposed to broadcast indecency. We question whether this would have aided the analysis. Children will not likely record, in a Nielsen diary or other survey, that they listen, to or view programs of which their parents disapprove. Furthermore, changes in the program menu make yesterday’s findings irrelevant today. Finally, to borrow the Commission’s phrase, such station- and program-specific data do not take “children’s grazing” into account. As the Supreme Court observed in Pacifica, “[b]ecause the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” 438 U.S. at 748, 98 S.Ct. at 3040. (In Pacifica, the objectionable broadcast was heard by a child in a car that was being driven by his father.) For this reason, we agree with the Commission that such data would not be “instructive.” 1993 Report and Order, 8 F.C.C.R. at 711.

The remaining question, then, is whether Congress, in enacting section 16(a), and the Commission, in promulgating the regulations, have taken into account the First Amendment rights of the very large numbers of adults who wish to view or listen to indecent broadcasts. We believe they have. The data indicate that significant numbers of adults view or listen to programs broadcast after midnight. Based on information provided by Nielsen indicating that television sets in 23 percent of American homes are in use at 1:00 a.m., the Commission calculated that between 21 and 53 million viewers were watching television at that time. 1989 NOI, 4 F.C.C.R. at 8362; see also id. at 8381, 8393 (in Chicago, approximately 15 percent of adults watch broadcast television at midnight, and approximately 18 percent do so in Washington, D.C.). Comments submitted to the FCC by petitioners indicate that approximately 11.7 million adults listen to the radio between 10:00 p.m. and 11:00 p.m., while 7.4 million do so between midnight and 1:00 a.m. 1992 Comments at 8 n. 3 (reprinted in Joint Appendix at 348). With an estimated 181 million adult listeners, this would indicate that approximately 6 percent of adults listen to the radio between 10:00 p.m. and 11:00 p.m. while 4 percent of them do so between midnight and 1:00 a.m. Id.

While the numbers of adults watching television and listening to radio after, midnight are admittedly small, they are not insignificant. Furthermore, as we have noted above, adults have alternative means of satisfying their interest in indecent material at other hours in ways that pose no risk to minors. We therefore believe that a midnight to 6:00 a.m. safe harbor takes adequate account of adults’ First Amendment rights.

Petitioners argue, nevertheless, that delaying the safe harbor until midnight will have a chilling effect on the airing of programs during the evening “prime time” hours that are of special interest to adults. They cite, as examples, news and documentary programs and dramas that deal with such sensitive contemporary problems as sexual harassment and the AIDS epidemic and assert that a broadcaster might choose to refrain from presenting relevant material rather than risk the consequences of being charged with airing broadcast indecency. Whatever chilling effects may be said to inhere in the regulation of indecent speech, these have existed ever since the Supreme Court first upheld the FCC’s enforcement of section 1464 of the Radio Act. The enactment of section 16(a) does not add to such anxieties; to the contrary, the purpose of channeling, which we mandated in ACT I and reaffirmed in ACT II, 852 F.2d at 1343-44; 982 F.2d at 1509, and which Congress has now codified, is to provide a period in which radio and television stations may let down their hair without worrying whether they have stepped over any line other than that which separates protected speech from obscenity. Thus, section 16(a) has ameliorated rather than aggravated whatever chilling effect may be inherent in section 1464.

Petitioners also argue that section 16(a)’s midnight to 6:00 a.m. channeling provision is not narrowly tailored because, for example, Congress has failed to take into consideration the fact that it bans indecent broadcasts during school hours when children are presumably subject to strict adult supervision, thereby depriving adults from listening to such broadcasts during daytime hours when the risk of harm to minors is slight. The Government’s concerns, of course, extend to children who are too young to attend school. See Pacifica, 438 U.S. at 749, 98 S.Ct. at 3040 (“broadcasting is uniquely accessible to children, even those too young to read”). But more to the point, even if such fine tuning were feasible, we do not believe that the First Amendment requires that degree of precision.

In this ease, determining the parameters of a safe harbor involves a balancing of irreconcilable interests. It is, of course, the ultimate prerogative of the judiciary to determine whether an act of Congress is consistent with the Constitution. Nevertheless, we believe that deciding where along the bell curves of declining adult and child audiences it is most reasonable to permit, indecent broadcasts is the kind of judgment that is better left to Congress, so long as there is evidence to support the legislative judgment. Extending the safe harbor for broadcast indecency to an earlier hour involves “a difference only in degree, not a less restrictive alternative in kind.” Burson v. Freeman, 504 U.S. 191, 210, 112 S.Ct. 1846, 1857, 119 L.Ed.2d 5 (1992) (reducing campaign-free boundary around entrances to polling places from 100 feet to 25 feet is a difference in degree, not a less restrictive alternative in kind); see also Buckley v. Valeo, 424 U.S. 1, 30, 96 S.Ct. 612, 640, 46 L.Ed.2d 659 (1976) (if some limit on campaign contributions is necessary, court has no scalpel to probe whether $2,000 ceiling might not serve as well as $1,000). It follows, then, that in a ease of this kind, which involves restrictions in degree, there may be a range of safe harbors, each of which will satisfy the “narrowly tailored” requirement of the First Amendment. We are dealing with questions of judgment; and here, we defer to Congress’s determination of where to draw the line just as the Supreme Court did when it accepted Congress’s judgment that $1,000 rather than some other figure was the appropriate limit to place on campaign contributions.

Recognizing the Government’s compelling interest in protecting children from indecent broadcasts, Congress channeled indecent broadcasts to the hours between midnight and 6:00 a.m. in the hope of minimizing children’s exposure to such material. Given the substantially smaller number of children in the audience after midnight, we find that section 16(a) reduces children’s exposure to broadcast indecency to a significant degree. We also find that this restriction does not unnecessarily interfere with the ability of adults to watch or listen to such materials both because substantial numbers of them are active after midnight and because adults have so many alternative ways of satisfying their tastes at other times. Although the restrictions burden the rights of many adults, it seems entirely appropriate that the marginal convenience of some adults be made to yield to the imperative needs of the young. We thus conclude that, standing alone, the midnight to 6:00 a.m. safe harbor is narrowly tailored to serve the Government’s compelling interest in the well-being of our youth.

B. The Public Broadcaster Exception

Section 16(a) permits public stations that sign off the air at or before midnight to broadcast indecent material after 10:00 p.m. See 47 U.S.C. § 303 note. Petitioners argue that section 16(a) is unconstitutional because it allows the stations to present indecent material two hours earlier than all others.

Congress has provided no explanation for the special treatment accorded these stations other than the following: “In order to accommodate public television and radio stations that go off the air at or before 12 midnight, the FCC’s enforcement authority would extend [to] the hour of 10 o’clock p.m. for those stations.” 138 Cong.Rec. S7308 (statement of Sen. Byrd). The Commission has done little better. In its 1993 Report and Order, the agency explained the preference as follows:

In balancing the interests at stake, it appears reasonable to afford public broadcasters that do not operate during the regular safe harbor time period at least some opportunity to air indecent material as opposed to forcing them to extend their broadcast day beyond that which is economically feasible. Congress carved out this exception apparently as a kind of “rough accommodation” of its concerns for public broadcasters.

8 F.C.C.R. at 710. In its brief, the Commission justifies the disparate treatment accorded public and commercial broadcasters who sign off the air at midnight by suggesting that the latter may be able to finance the extension of their broadcasting day through the sale of advertising time. The agency also argues that allowing these public stations to begin broadcasting indecent material at 10:00 p.m. despite the significantly larger number of children in the radio and television audiences represents a reasonable trade-off because it serves the “substantial” (as opposed to “compelling”) governmental interest in accommodating the free speech rights of those stations. The Commission does not address the phenomenon of “children’s grazing” that it used so effectively in arguing against the relevance of program-specific statistics.

Because Congress has made no suggestion that minors are less likely to be corrupted by sexually explicit material that is broadcast by a public as opposed to a commercial station, and because section 16(a) was adopted in reluctant response to our rejection of the earlier statute imposing a total ban on indecent broadcasts, we can only conclude that Congress created the exception as a result of a misunderstanding of our directive in ACT II. Our instruction that the Commission must “afford broadcasters clear notice of reasonably determined times at which indecent material safely may be aired,” 932 F.2d at 1509 (internal quotation marks omitted), did not require that every station be given some opportunity to broadcast indecent material. Rather, it was our expressed view that a clearly articulated channeling rule, as opposed to a case-by-ease approach, was necessary to enable broadcasters to know when they might safely air indecent material. As the Supreme Court has observed, in this unique medium, “[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969).

Whatever Congress’s reasons for creating it, the preferential safe harbor has the effect of undermining both the argument for prohibiting the broadcasting of indecent speech before that hour and the constitutional viability of the more restrictive safe harbor that appears to have been Congress’s principal objective in enacting section 16(a). In Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987), the Supreme Court addressed a state sales tax that provided a tax exemption for religious, professional, trade, and sports journals, but not other magazines. The Court invalidated the selective application of the sales tax, in part because the articulated interest of encouraging “fledgling” publishers did not apply to struggling magazines other than those specified. Id. at 232, 107 S.Ct. at 1729. The Court found that even assuming there was a compelling interest in protecting such publishers, a selective exemption is not narrowly tailored to achieve that end. Id.; accord Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 591-92, 103 S.Ct. 1365, 1375-76, 75 L.Ed.2d 295 (1983) (state tax that exempted first $100,000 worth of ink and paper from state use tax unconstitutionally discriminated against small group of larger newspapers in violation of First Amendment).

Similarly, in City of Cincinnati v. Discovery Network, Inc., — U.S. -, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), a municipal ordinance imposed a ban on newsracks dispensing commercial publications because they were unsightly but did not impose this ban on newsracks dispensing newspapers. The Court struck down the regulation, finding that the distinction between commercial and noncommercial newsracks bore “no relationship whatsoever to the particular interests that the city has asserted. It [was] therefore an impermissible means of responding to the city’s admittedly legitimate interests.” Id. at —, 113 S.Ct. at 1514 (emphasis in original).

Congress has failed to explain what, if any, relationship the disparate treatment accorded certain public stations bears to the compelling Government interest — or to any other legislative value — that Congress sought to advance when it enacted section 16(a). This is not a case like Alliance for Community Media, 56 F.3d at 127-28, in which we allowed the FCC to require the segregation and blocking of indecent programs on leased-access channels while not imposing a similar restriction on public access channels. There, the Commission was able to justify the disparate treatment by carefully documenting the relationship between the regulation at issue and the problem to be solved, namely, the uninvited intrusion of indecent material into leased-access channel programming. Here, Congress and the Commission have backed away from the consequences of their own reasoning, leaving us with no choice but to hold that the section is unconstitutional insofar as it bars the broadcasting of indecent speech between the hours of 10:00 p.m. and midnight.

C. Our Decisions in ACT I and ACT II

Petitioners maintain that our holdings in ACT I and ACT II preclude our finding that section 16(a) is narrowly tailored to achieve the Government’s compelling interest as defined by them. While we have addressed their principal arguments above — and have done so in a manner that we believe to be consistent with our holdings in those two cases — we point to certain essential differences between this case and those with which we dealt in ACT I and ACT II.

ACT I involved an assessment of the constitutionality of channeling decisions that had been made by the FCC on its own initiative; here we are dealing with an act of Congress which, as the Supreme Court has pointed out, enjoys a “presumption of constitutionality” that is not to be equated with “the presumption of regularity afforded an agency in fulfilling its statutory mandate.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 n. 9, 103 S.Ct. 2856, 2866 n. 9, 77 L.Ed.2d 443 (1983). It is true, of course, that in ACT II we vacated a total ban on indecent broadcasts that Congress had attached to an appropriations bill. In doing so, we stated that our holding in ACT I

necessarily means that the Commission may not ban such broadcasts entirely. The fact that Congress itself mandated the total ban on broadcast indecency does not alter our view that, under ACT I, such a prohibition cannot withstand constitutional scrutiny.

932 F.2d at 1509. Having declared Congress’s 24-hour ban unconstitutional because of its totality, we remanded the case to the Commission with instructions to redetermine,

after a full and fair hearing, the times at which indecent material may be broadcast, to carefully review and address the specific concerns we raised in ACT I: among them, the appropriate definitions of “children” and “reasonable risk” for channeling purposes, the paucity of station- or program-specific audience data expressed as a percentage of the relevant age group population, and the scope of the government’s interest in regulating indecent broadcasts.

Id. at 1510 (internal quotation marks and ellipsis omitted). In doing so, we made no mention of the fact that subsequent to our decision in ACT I, the Commission had accumulated substantial information and comments relating to the banning of indecent broadcasts and had stated its reasons for defining “children” to include those aged 12 to 17. ACT II, therefore, cannot be seen as a rejection of the sufficiency of either.

While our holdings in this case are generally consistent with those in our two earlier decisions, we acknowledge that there are significant differences in our approach to certain of the issues. To the degree that the analyses in those earlier cases disagree with that contained in today’s decision, they are, of course, superseded.

III. Conclusion

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342 (1989). The Constitution, however, permits restrictions on speech where necessary in order to serve a compelling public interest, provided that they are narrowly tailored. We hold that section 16(a) serves such an interest. But because Congress imposed different restrictions on each of two categories of broadcasters while failing to explain how this disparate treatment advanced its goal of protecting young minds from the corrupting influences of indecent speech, we must set aside the more restrictive one. Accordingly, we remand this case to the Federal Communications Commission with instructions to limit its ban on the broadcasting of indecent programs to the period from 6:00 a.m. to 10:00 p.m.

It is so ordered.

1 . At issue is the Public Telecommunications Act of 1992, Pub.L. No. 102-356, § 16(a), 106 Stat. 949, 954 (1992) ("section 16(a)”). Section 16(a) of Act provides:

FCC Regulations — The Federal Communications Commission shall promulgate regulations to prohibit the broadcasting of indecent programming—

(1) between 6 a.m. and 10 p.m. on any day by any public radio station or public television station that goes off the air at or before 12 midnight; and

(2) between 6 a.m. and 12 midnight on any day for any radio or television broadcasting station not described in paragraph (1).

The regulations required under this subsection shall be promulgated in accordance with section 553 of title 5, United States Code, and shall become final not later than 180 days after the date of enactment of this Act [Aug. 26, 1992],

47 U.S.C. § 303 note (Supp. IV 1992).

Section 16(a) was enforced by the Federal Communications Commission in 1993. In the Matter of Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464: Report and Order, 8 F.C.C.R. 704, 711 (1993) ("Enforcement Order").

Although the majority finds the 6 a.m. to midnight ban is narrowly tailored to serve a compelling state interest, it holds that section 16(a) is unconstitutional insofar as it bars the broadcasting of indecent speech between the hours of 10 p.m. and midnight. The majority reaches this conclusion because "Congress has failed to explain what, if any, relationship the disparate treatment accorded certain public stations bears to the compelling Government interest — or to any legislative value — that Congress sought to advance when it enacted section 16(a).”

The "public broadcaster exception” is an aside to the real issue in this case. Indeed, in holding that the 6 a.m. to midnight ban is constitutional, the majority appears to invite Congress to extend the 6 a.m. to midnight ban to all broadcasters, without exception. Therefore, in my view, the majority's treatment of this issue in no way deflects from its principal holding that "the midnight to 6:00 a.m. safe harbor is narrowly tailored to serve the Government's compelling interest in the well-being of our youth.” It is this holding that will be the focus of this dissent.