\"On May 22, the U.S. Supreme Court declared unconstitutional a law requiring cable TV operators either to completely scramble channels like Playboy and Spice or to transmit those channels only during late-night hours. Justice Kennedy\'s majority opinion in U.S. v. Playboy Entertainment Group (http://laws.findlaw.com/us/000/98-1682.html) is a must-read for librarians, as it includes a beautiful affirmation of free speech and individual responsibility....
When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. ... When the Government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded congressional enactments is reversed. \"Content-based regulations are presumptively invalid,\" and the Government bears the burden to rebut that presumption.
This is for good reason. \"[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.\" Error in marking that line exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.
When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.
It is rare that a regulation restricting speech because of its content will ever be permissible. Indeed, were we to give the Government the benefit of the doubt when it attempted to restrict speech, we would risk leaving regulations in place that sought
to shape our unique personalities or to silence dissenting ideas. When First Amendment compliance is the point to be proved, the risk of non-persuasion -– operative in all trials -– must rest with the Government, not with the citizen.
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