dissenting:
In this case, the majority upholds as constitutional a total ban of “indecent” speech on broadcast television and radio between the hours of 6 a.m. and midnight.1 The majority readily acknowledges that indecent speech (as distinguished from obscene speech) is fully protected by the Constitution, and that the Government may not regulate such speech based on its content except when it chooses the least restrictive means to effectively promote an articulated compelling interest. In this case, the Government fails to satisfy the acknowledged constitutional strictures.
The Government advances three goals in support of the statute: first, it claims that the statute facilitates parental supervision of the programming their children watch and hear; second, it claims that the ban promotes the well-being of minors by protecting them from indecent programming assumed to be harmful; and, finally, it contends that the ban preserves the privacy of the home. Enforcement Order, 8 F.C.C.R. at 705-06. The majority finds the first two interests compelling, and so finds it unnecessary to address the third. I, too, will focus on the first two interests, which I find to be unsupported.
As an initial matter, I do not comprehend how the two interests can stand together. “Congress may properly pass a law to facilitate parental supervision of their children, i.e., a law that simply segregates and blocks indecent programming and thereby helps parents control whether and to what extent their children are exposed to such programming. However, a law that effectively bans all indecent programming — as does the statute at issue in this ease — does not facilitate parental supervision. In my view, my right as a parent has been preempted, not facilitated, if I am told that certain programming will be banned from my ... television. Congress cannot take away my right to decide what my children watch, absent some showing that my children are in fact at risk of harm from exposure to indecent programming.” Alliance for Community Media v. FCC, 56 F.3d 105, 145 (D.C.Cir.1995) (Edwards, C.J., dissenting).
Furthermore, the two interests — facilitating parental supervision and protecting children from indecent material — fare no better if considered alone. With respect to the alleged interest in protecting children, although the majority strains mightily to rest *671its finding of harm on intuitive notions of morality and decency (notions with which I have great sympathy), the simple truth is that “[t]here is not one iota of evidence in the record ... to support the claim that exposure to indecency is harmful — indeed, the nature of the alleged ‘harm’ is never explained.” Id. There is significant evidence suggesting a causal connection between viewing violence on television and antisocial violent behavior;2 but, as was conceded by Government counsel at oral argument in this case, the FCC has pointed to no such evidence addressing the effects of indecent programming. With respect to the interest in facilitating parental supervision, the statute is not tailored to aid parents’ control over what their children watch and hear; it does not, for example, “segregate” indecent programming on special channels, as was the case in Alliance for Community Media,3 nor does it promote a blocking device which individuals control. Rather, section 16(a) involves a total ban of disfavored programming during hours when adult viewers are most likely to be in the audience.
Because the statutory ban imposed by section 16(a) is not the least restrictive means to further compelling state interests, the majority decision must rest primarily on a perceived distinction between the First Amendment rights of broadcast media and cable (and all other non-broadcast) media. The majority appears to recognize that section 16(a) could not withstand constitutional scrutiny if applied against cable television operators; nonetheless, the majority finds this irrelevant because it believes that “there can be no doubt that the traditional broadcast media are properly subject to more regulation than is generally permissible under the First Amendment.” This is the heart of the ease, plain and simple.
Respectfully, I find the majority’s position flawed. First, because I believe it is no longer responsible for courts to provide lesser First Amendment protection to broadcasting based on its alleged “unique attributes,” I would scrutinize section 16(a) in the same manner that courts scrutinize speech restrictions of cable media.
Second, I find it incomprehensible that the majority can so easily reject the “public broadcaster exception” to section 16(a), see note 1 supra, and yet be blind to the utterly irrational distinction that Congress has created between broadcast and cable operators. No one disputes that cable exhibits more and worse indecency than does broadcast. And cable television is certainly pervasive in our country. Today, a majority of television households have cable,4 and over the last two decades, the percentage of television households with cable has increased every year.5 *672However, the Government does not even attempt to regulate cable with the same heavy regulatory hand it applies to the broadcast media. There is no ban between 6 a.m. and midnight imposed on cable. Rather, the Government relies on viewer subscription and individual discretion instead of regulating commercial cable. Viewers may receive commercial cable, with all of its indecent material, to be seen by adults and children at any time, subject only to the viewing discretion of the cable subscriber. “Furthermore, many subscribers purchase cable service to get improved [broadcast] television reception, and a number of basic cable subscriptions are packaged to include channels that offer some indecent programming; so these subscribers will get indecent programming whether they want it or not.” Id, 56 F.3d at 149 (Edwards, C.J., dissenting). In other words, the Government assumes that this scheme, which relies on personal subscription and individual discretion, fosters parental choice and protects children without unduly infringing on the free speech rights of cable operators and the adult audience.
If exposure to “indecency” really is harmful to children, then one wonders how to explain congressional schemes that impose iron-clad bans of indecency on broadcasters, while simultaneously allowing a virtual free hand for the real culprits — cable operators. And the greatest irony of all is that the majority holds that section 16(a) is constitutional in part because, in allowing parents to subscribe to cable television as they see fit, Congress has facilitated parental supervision of children. In other words, Congress may ban indecency on broadcast television because parents can easily purchase all the smut they please on cable! I find this rationale perplexing.
At bottom, I dissent for three reasons: First, the Government’s asserted interests in facilitating parental supervision and protecting children from indecency are irreconcilably in conflict in this case. Second, the Commission offers no evidence that indecent broadcasting harms children. And although it is an easy assumption to make — that indecent broadcasting is harmful to minors — Supreme Court doctrine suggests that the Government must provide some evidence of harm before enacting speech-restrictive regulations. Finally, the Government has made no attempt to search out the least speech-restrictive means to promote' the interests that have been asserted. For these reasons, section 16(a) should be struck down as unconstitutional.
I. First Amendment Protections for the Broadcast Media
Over the years, Congress and the Commission have regulated the broadcast media more heavily than they have regulated the non-broadcast media. And courts have upheld speech-restrictive regulations imposed on broadcast which undoubtedly would have been struck down were they imposed on other media. See, e.g., Turner Broadcasting Sys., Inc. v. FCC, — U.S. -, — , 114 S.Ct. 2445, 2456, 129 L.Ed.2d 497 (1994) (“TBS”) (“It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media.”) 6; FCC v. League of Women Voters of California, 468 U.S. 364, 376, 104 S.Ct. 3106, 3115, 82 L.Ed.2d 278 (1984) (“Were a similar ban ... applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment.”). The Supreme Court has explained its tendency to uphold speech-restrictive regulations of broadcast as providing the broadcast media with limited First Amendment protection. See, e.g., FCC v. Pacifica Found, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978) (plurality opinion) (“[0]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection.”).
*673The absurdity of this bifurcated approach — applying a relaxed level of scrutiny to content-based regulations of broadcast and a strict level of scrutiny for content-based regulations of non-broadcast media — is most apparent in a comparison of the Supreme Court’s analysis of broadcast and cable. In Pacifica, a plurality of the Court applied a reduced level of scrutiny in determining the First Amendment rights of a broadcasting station. 438 U.S. at 748-50, 98 S.Ct. at 3039-41. Last year, however, a majority of the Court held that cable television is entitled to the same First Amendment protection as all other non-broadcast media. TBS, — U.S. at -, 114 S.Ct. at 2456-57. There is no justification for this apparent dichotomy in First Amendment jurisprudence. Whatever the merits of Pacifica when it was issued almost 20 years ago, it makes no sense now.7
The justification for the Supreme Court’s distinct First Amendment approach to broadcast originally centered on the notion of spectrum scarcity. The electromagnetic spectrum was physically limited — there were more would-be broadcasters than frequencies available and broadcasters wishing to broadcast on the same frequency may have interfered with each other — and required regulation to assign frequencies to broadcasters. See TBS, — U.S. at -, 114 S.Ct. at 2456. The Court reasoned that the Government could impose limited content restraints and certain affirmative obligations on broadcasters on account of spectrum scarcity. See id. at -, 114 S.Ct. at 2457 (citing Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806-07). In 1978, the Court provided two additional rationales — broadcast was uniquely intrusive into the privacy of the home and uniquely accessible to children — which justified relaxed scrutiny and thereby reduced the First Amendment protection accorded to broadcasters. See Pacifica, 438 U.S. at 748-49, 98 S.Ct. at 3039-40. These justifications — spectrum scarcity, intrusiveness, and accessibility to children — neither distinguish broadcast from cable, nor explain the relaxed application of the principles of the First Amendment to broadcast.
A. Spectrum Scarcity
In 1943, the Court determined that the “unique characteristic” of broadcast — that “[ujnlike other modes of expression, radio inherently is not available to all” — explained “why, unlike other modes of expression, it is subject to governmental regulation.” National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 226, 63 S.Ct. 997, 1014, 87 L.Ed. 1344 (1943) (“NBC”). Twenty-six years later, the Court spun out the First Amendment implications of this burgeoning scarcity theory. Red Lion, 395 U.S. at 388-90, 89 S.Ct. at 1805-07. The Court first offered an economic scarcity theory,8 finding *674that “[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.”9 Id. at 388, 89 S.Ct. at 1806. The Court also offered a technological scarcity theory: recognizing the need to prevent “overcrowd[ing of] the spectrum,”10 id. at 389, 89 S.Ct. at 1806, the Court held that, “[bjecause of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium,”11 id. at 390, 89 S.Ct. at 1806.
Although the Supreme Court has not declared the distinction between broadcast and other media a dead one, it has not lately given the distinction an enthusiastic endorsement. In fact, in recent years the Court has only grudgingly upheld the distinction. See, e.g., TBS, — U.S. at - - -, 114 S.Ct. at 2456-57. On a few occasions, the Supreme Court has acknowledged the mounting criticism against its scarcity rationale. See id. at-, 114 S.Ct. at 2457 (noting, that “courts and commentators have criticized the scarcity rationale since its inception”);12 League of Women Voters, 468 U.S. at 376-77 n. 11, 104 S.Ct. at 3115-16 n. 11.13 Nevertheless, to date, the Court has declined to revisit the validity of the scarcity rationale. See TBS, — U.S. at -, 114 S.Ct. at 2457 (“[W]e have declined to question its continuing validity as support for our broadcast jurisprudence ... and see no reason to do so here.”); League of Women Voters, 468 U.S. at 377 n. 11, 104 S.Ct. at 3116 n. 11 (“We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast *675regulation may be required.”).14 In my view, it is no longer responsible for courts to apply a reduced level of First Amendment protection for regulations imposed on broadcast based on an indefensible notion of spectrum scarcity. It is time to revisit this rationale.
For years, scholars have argued that the scarcity of the broadcast spectrum is neither an accurate technological description of the spectrum, nor a “unique characteristic” that should make any difference in terms of First Amendment protection.15 First, in response to the problem of broadcast interference when multiple broadcasters attempt to transmit on the same frequency, critics point out that this problem does not distinguish broadcasting from print16 and is easily remedied with a system of administrative licensing or private property rights.17 Another problem alluded to by the Court in Red Lion is the claim that the spectrum is inherently limited, in contrast to cable stations or newsprint. Today, however, the nation enjoys a proliferation of broadcast stations,18 and should the country decide to increase the number of channels, it need only devote more resources toward the development of the electromagnetic spectrum.19
In response to the economic scarcity argument — that there are more would-be broadcasters than spectrum frequencies available — economists argue that all resources are scarce in the sense that people often would like to use more than exists.20 Especially when the Government gives away a valuable commodity, such as the right to use certain airwaves free of charge, the demand will likely always exceed the supply.21 And with the development of cable, spectrum-based communications media now have an abundance of alternatives, essentially rendering the economic scarcity argument superfluous.
*676In short, neither technological nor economic scarcity distinguish broadcast from other media. And while some may argue that spectrum scarcity may justify a system of administrative regulation as opposed to a free market approach to stations,22 the theory does not justify reduced First Amendment protection.
B. Accessibility to Children and Pervasiveness
The two additional rationales offered by the plurality opinion in Pacifica, attempting to distinguish broadcasting from other media, also fail to justify limited First Amendment protection of broadcast. The plurality found that “broadcasting is uniquely accessible to children, even those too young to read.” Pacifica, 438 U.S. at 749, 98 S.Ct. at 3040.23 This characteristic, however, fails to distinguish broadcast from cable; and, notably, the rationale is absent from the Court’s TBS opinion.
The plurality in Pacifica added another rationale which really has two components. The opinion reasoned that “the broadcast media have established a uniquely pervasive presence in the lives of all Americans.... [The] material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home.”24 Id. at 748, 98 S.Ct. at 3040. Again, the pervasiveness of its programming hardly distinguishes broadcast from cable. As noted above, cable is pervasive: a majority of television households have cable today, and this percentage has increased every year over the last two decades. See National Cable Television ASSOCIATION, supra, at 1-A, 2-A. The intrusiveness rationale, that the material confronts the citizen in the privacy of his or her home, likewise, does not distinguish broadcast from cable, nor account for the divergent First Amendment treatment of the two media. Finally, in light of TBS, in which the Court omitted any discussion of these rationales, the Pacifica rationales no longer can be seen to serve as justifications for reduced First Amendment protection afforded to broadcast.
It is relevant that Pacifica was a plurality opinion which provided a very limited holding. See 438 U.S. at 750, 98 S.Ct. at 3041 (“It is appropriate ... to emphasize the narrowness of our holding_ The Commission’s decision rested entirely on a nuisance rationale under which context is all-important.”). The Court has subsequently emphasized that Pacifica’s holding was “emphatically narrow,” Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 127, 109 S.Ct. 2829, 2837, 106 L.Ed.2d 93 (1989), essentially confirming that Pacifica never was seen to be a seminal statement of constitutional law. But beyond the narrowness of the Court’s decision, it seems clear now that Pacifica is a flawed decision, at least when one considers it in light of enlightened economic theory, technological advancements, and subsequent case law. The critical underpinnings of the decision are no longer present. Thus, there is no reason to uphold a distinction between broadcast and cable media pursuant to a *677bifurcated First Amendment analysis.25
II. Full First Amendment Protection of Broadcast
Because no reasonable basis can be found to distinguish broadcast from cable in terms of the First Amendment protection the two media should receive, I would review section 16(a) and the Enforcement Order under the stricter level of scrutiny courts apply to content-based regulations of cable. This means “the most exacting scrutiny” should be applied “to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” TBS, — U.S. at -, 114 S.Ct. at 2459.26 In Sable, the Court indicated that the “exacting scrutiny” test has two prongs: the Government’s interests must be “compelling,” and the method of regulation chosen must be “the least restrictive means” to achieve those compelling interests. 492 U.S. at 126, 109 S.Ct. at 2836. That is the essence of the test, I think.
In this case, the majority views the broadcast media as disfavored in the application of First Amendment rights, relying principally on Pacifica; however, my colleagues nonetheless agree that section 16(a) reflects a content-based regulation that is subject to exacting scrutiny. Indeed, even the FCC viewed the case in this way. In my view, there is no way that section 16(a) can survive exacting scrutiny.
A. Content-Based Regulations
In explaining the reasons for applying heightened or exacting scrutiny, the Supreme Court recently stated:
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence.
TBS, — U.S. at -, 114 S.Ct. at 2458. This fundamental principle means that “the First Amendment ... does not countenance governmental control over the content of messages expressed by private individuals.” Id.27 Because section 16(a) and the Enforcement Order ban indecent expression,28 they constitute content-based regulations, which have traditionally raised the red flag of exacting scrutiny. As the Court stated in Sable, “[t]he 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.” 492 U.S. at 126, 109 S.Ct. at 2836. At issue in this case is whether the Government’s interests are indeed compelling and whether it has chosen the least restrictive means to further its asserted compelling interests.
To withstand constitutional scrutiny, the Government’s regulations must serve its interests “ “without unnecessarily interfering with First Amendment freedoms.’ ” Id. at 126, 109 S.Ct. at 2836 (quoting Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d *67873 (1980)). The First Amendment rights at stake here are those of broadcasters and the adult broadcasting audience. The Supreme Court finds laws insufficiently tailored when they deny adults their free speech rights by allowing them to read, watch, or hear only what was acceptable for children. See, e.g., Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525-26, 1 L.Ed.2d 412 (1957); Sable, 492 U.S. at 127, 109 S.Ct. at 2837 (finding that “this case, like Butler, presents [the Court] with ‘legislation not reasonably restricted to the evil with which it is said to deal’ ”) (quoting Butler, 352 U.S. at 383, 77 S.Ct. at 526).
When First Amendment rights are at stake, appellate courts cannot defer to a legislative finding, but must make an independent inquiry to assess whether the record supports the Government’s interests. Sable, 492 U.S. at 129, 109 S.Ct. at 2838; Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543-44, 56 L.Ed.2d 1 (1978) (assessing legislative finding or “declaration” that clear and present danger existed). The Court has found this “particularly true where the Legislature has concluded that its product does not violate the First Amendment.” Sable, 492 U.S. at 129, 109 S.Ct. at 2838.
B. Compelling Interests
The FCC claims that section 16(a) serves three compelling governmental interests. The ban is meant, first, to support parental supervision of children; second, to promote the well-being of minors; and third, to preserve the privacy of the home. Enforcement Order, 8 F.C.C.R. at 705-06. Only the first two interests are at issue.
With respect to the interest in facilitating parental supervision, the Supreme Court has stated that the law has “consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968). It is entirely reasonable for “[t]he legislature [to] properly conclude that parents and others ... who have this primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Id. Similarly, with respect to the Commission’s second interest, protecting the well-being of its youth, the Court on numerous occasions has found “a compelling interest in protecting the physical and psychological well-being of minors.” Sable, 492 U.S. at 126, 109 S.Ct. at 2836; see also Pacifica, 438 U.S. at 749, 98 S.Ct. at 3040; Ginsberg, 390 U.S. at 640, 88 S.Ct. at 1281. But to note that these interests are compelling in the abstract is not to scrutinize the Government’s assertions as applied to this case.
As I discussed in the panel decision, Action for Children’s Television v. FCC, 11 F.3d 170, 183-86 (D.C.Cir.1993) (Edwards, J., concurring), one of the most significant problems with the Government’s defense of its regulations is that its first two asserted interests, at least as the FCC appears to define their scope here, are irreconcilably in conflict. The Commission cannot simultaneously seek to facilitate parental supervision over their children’s exposure to indecent programming and at the same time protect all children from indecent speech by imposing a flat ban on indecent programming from the hours of 6 a.m. to midnight. Simply put, among the myriad of American parents, not every parent will decide, as the Commission has, that the best way to raise its child is to have the Government shield children under eighteen from indecent broadcasts. Furthermore, not every parent will agree with the Commission’s definition of indecency, nor whether it is appropriate in some contexts, nor at what age their own children may be exposed to such programming. In asserting both interests — facilitating parental supervision and protecting children from indecent broadcast — the Government must assume not only that parents agree with the Commission, but that parents supervise their children in some uniform manner. Surely, this is not the case. When acting consciously, some parents may prohibit their children from any exposure to indecent material; some may impose a modified prohibition depending upon the content of the programming and the child’s maturity; still others may view or listen to indecent material with *679their children, either to criticize, endorse, or remain neutral about what they see or hear. A complete ban on indecent broadcasts does not facilitate the variety of American parents in supervising their children’s exposure to broadcasting.
The Commission maintains that these two interests bolster and reinforce each other. Tr. of Oral Argument at 56. It contends that “it simply is not practical for these parents to control effectively what their children might see and hear on the broadcast medium.” Brief for Respondents at 16. But here, the Commission assumes that parents are unavailable or inept at the task of parenting, and essentially establishes itself as the final arbiter of what broadcast American children may see and hear. In so doing, the Government tramples heedlessly on parents’ rights to rear them children as they see fit and to inculcate them with their own moral values.29 Courts generally do not take these moves lightly. We have long recognized the rights of parents to raise their children in the manner they see fit. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925) (striking state law requiring children to attend public schools as “interfer[ing] with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923) (striking state law that prohibited teaching foreign languages to children-as interfering with “the power of parents to control the education of their own”). As the Supreme Court said in Ginsberg, “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” 390 U.S. at 639, 88 S.Ct. at 1280; see also Wisconsin v. Yoder, 406 U.S. 205, 213-36, 92 S.Ct. 1526, 1532-44, 32 L.Ed.2d 15 (1972) (exempting children of Amish faith from compulsory school attendance, law on grounds that it impinges on other fundamental rights such as traditional interest of parents with respect to religious upbringing of their children). When the Government does intervene in the rearing of children contrary to parents’ preferences, it is usually in response to some significant breakdown within the family unit or in the complete absence of parental care-taking. Society protects children who are abused, neglected, or abandoned, because the harm is clear and such actions are contrary to civilized notions of parenting. The Government does not generally tell parents what speech their children should and should not hear absent some showing of harm to their children.
In other contexts, these two interests— facilitating parental supervision and protecting children from indecency — may have worked in tandem. For example, in Pacifi-ca, a father’s complaint that his son heard an indecent monologue prompted the FCC to enforce sanctions. Pacifica, 438 U.S. at 729-33, 98 S.Ct. at 3030-32. In that case, facilitating parental control and protecting the well-being of minors might have simultaneously converged; the parent agreed with the Commission (or vice versa). In Ginsberg, the statute only prohibited selling obscene magazines to minors; it did not prohibit the selling of obscene magazines to everyone. 390 U.S. at 634-35, 88 S.Ct. at 1277-1278. Again, this statute may be viewed as facilitating parental control while simultaneously protecting children from indecency. Indeed, the Court explicitly recognized that “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.” Id. at 639, 88 S.Ct. at 1280 (citing Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col.L.Rev. 391, 413 n. 68 (1963) (noting that “one can well distinguish laws which do not impose a morality on children, but which support the right of parents to deal with the morals of their children as they see fit”)). The instant case, however, differs from those two; this ban removes *680indecent speech from the broadcast airwaves beyond the reach of adults and parents, essentially mandating the Commission’s desired result. Once it becomes clear that, in this context, these two interests conflict, it is then important to determine which compelling interest takes precedence.
The FCC asserts that its primary interest is in facilitating parental supervision. See Tr. of Oral Argument at 55 (counsel for FCC stating “[w]e consistently stated that the primary interest is in aiding parents in supervising children”). The Commission is wise to assert its interest in facilitating parents as its primary interest, for this surely offers a firmer base for permissible regulation. As the Supreme Court stated in Ginsberg.
[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
390 U.S. at 639, 88 S.Ct. at 1280 (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944)).
However, if facilitating parental supervision means allowing parents to run the household in the manner they choose, then the FCC has preempted, not facilitated, parental control in enforcing section 16(a). While the Government’s interest in protecting the well-being of children is undoubtedly compelling, when it conflicts with parental preferences and arguably treads on First Amendment rights, case law requires the Government to show some evidence of harm. It is easy to assume that there must be ill effects from exposing children, and especially young ones, to indecent material, but Supreme Court doctrine suggests that we must check our assumptions. And with respect to exposure to broadcast indecency and the impact on children, we have yet to unearth any ill effects.
The Supreme Court has not established what is required in terms of a showing of harm from exposure to indecency. Although harm was not at issue in Pacifica, one can read the plurality opinion there as assuming that the indecent monologue harmed children. Recent Supreme Court case law, however, suggests that more is required. In TBS, a plurality of the Court found that, while “the Government’s asserted interests are important in the abstract,” this did not mean that the regulations at issue in that case “in fact advance those interests.” — U.S. at -, 114 S.Ct. at 2470. It continued, “[w]hen the Government defends a regulation on speech as a means to ... prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’” Id. (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C.Cir.1985)). The Court was clear about the burdens on the Government: “It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id. (citing Edenfield v. Fane, — U.S. -, -, 113 S.Ct. 1792, 1798-99, 123 L.Ed.2d 543 (1993)); see also City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496, 106 S.Ct. 2034, 2038, 90 L.Ed.2d 480 (1986) (“[Tjhis Court ‘may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity.’” (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803 n. 22, 104 S.Ct. 2118, 2127 n. 22, 80 L.Ed.2d 772 (1984))); Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C.Cir.1977) (“[A] regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist.” (internal quotations omitted)). While the Court in TBS noted that Congress’s predictive judgments are entitled to substantial deference, and that Congress is not required to make a record of the type an agency must make, it stressed that Congress’s judgments are not insulated from “meaningful judicial review.” — U.S. at -, 114 S.Ct. at 2471 (plurality). “On the contrary,” the Court stated “we have stressed in First Amendment cases that the deference afforded to legislative findings does ‘not foreclose our independent judgment of the facts bearing on an issue of constitutional law.’ ” Id. (quoting Sable, 492 U.S. at 129, 109 S.Ct. at 2838).
*681In Edenfield, the Court struck down a state law prohibiting certified public accountants (“CPAs”) from engaging in direct, in-person, uninvited solicitation. — U.S. at - - -, 113 S.Ct. at 1798-1804. The Court held that, under the intermediate scrutiny prescribed for commercial speech under its decision in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), a party seeking to uphold a restriction on speech carries the burden of justifying it which “is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, — U.S. at -, 113 S.Ct. at 1800; see also League of Women Voters, 468 U.S. at 391, 104 S.Ct. at 3123 (finding that interest asserted by Government is not substantially advanced by statutory scheme, in part because risk that Government would seek to influence or pressure local stations was “speculative at best”). In Edenfield, the Court found that the state Board of Accountancy failed to present any studies that suggested that personal solicitation of prospective business clients by CPAs creates the dangers of fraud, overreaching, or compromised independence, the prevention of which the Board claimed as its interest. — U.S. at -, 113 S.Ct. at 1800. The Court noted that the only suggestion that the prevention of these evils was served by the ban was found in an affidavit containing conclusory statements. Id. at -, 113 S.Ct. at 1801. The evidence offered by the Commission in this case is no better.30
In contending that the Government must protect children’s well being, the Commission makes two arguments: first, it asserts that it may assume that indecent broadcast material harms children as a matter of law, citing Pacifica and Ginsberg; and, second, it suggests that the congressional sponsors considered evidence of the negative effects of television on young viewers. Enforcement Order, 8 F.C.C.R. at 706-07. The Commission’s reliance on Pacifica does not help its case; the question of harm was not before that Court, and, as discussed earlier, the interest in the protection of children was not necessarily at odds with the interest in facilitating parental supervision in that case. Contrary to the Commission’s assertion, the Court in Ginsberg did not presume harm as a matter of law. Rather, the Court struggled with the question of whether the legislature had shown evidence of a causal link between “obscenity” and “impairing the ethical and-moral development” of youth. 390 U.S. at 641-42, 88 S.Ct. at 1282. Under rationality review, the Court found that it could not state that the statute’s regulation of obscenity had “no rational relation to the objective of safeguarding such minors from harm.”31 Id. at 643, 88 S.Ct. at 1282. In this case, the court is not reviewing regulations that deal with obscenity, nor is the court operating under rationality review.
The congressional sponsors do not offer any evidence of a link between exposure to indecency and harm to children. Five out of the eight articles cited address materials involving violence, not indecency,32 and the re*682maining three discuss sexual materials but do not account for any harm.33 There simply is no evidence that indecent broadcasts harm children, the absence of which stands in striking contrast, to the wealth of research conducted on the harmful effects of televised violence.34 In oral argument, counsel for the Commission was unable to cite to any study that found a causal connection between exposure to indecent broadcast and psychological or other harm to children. Tr. of Oral Argument at 47-51. The Government has failed to be mindful of recent Supreme Court decisions, such as TBS and Edenfield, requiring the showing of evidence before asserting that its restrictions on speech will alleviate real harms. Where the interest of protecting children conflicts with parental preferences, and where this interest is asserted with no evidence of harm, it cannot withstand exacting scrutiny. Accordingly, the only interest the Commission asserts which is indeed compelling in this context is facilitating parental supervision.
C. Least Restrictive Means
It would be hard to object to some sort of regulation of indecency in broadcast as well as other media were it narrowly tailored to facilitate parental supervision of children’s exposure to indecent material. But that is not what the Government has offered. As the Supreme Court has stated, “[i]t is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.” Sable, 492 U.S. at 126, 109 S.Ct. at 2837. The Government’s chosen means, a ban on indecent speech from the hours of 6 a.m. to midnight (or until 10 p.m., the court-enforced zone), is not the least restrictive means to facilitate parental supervision.
Although unlikely, it is conceivable that such a ban on indecent programming could be the least restrictive means of facilitating parental control. For example, the Government might show that significant numbers of unsupervised children were watching or listening to programs containing indecency during the hours of the ban, that parents wished to limit what their children saw or heard, and that other means of controlling such exposure was considered and found to be ineffective. In this case, the Government offers no data on actual parental supervision, parental preferences, or on the effectiveness of parental supervision at different hours of the day and night. The Commission presents no program-specific data of what children watch, despite the existence of this data. See Tr. of Oral Argument at 46 (in response to the court’s question, concerning whether more reliable data was available — “Could the Commission collect specific data about the number of children in the audience of particular programs or particular stations by age?”— Counsel for the FCC replied, “[i]t is available and advertisers rely on it”). Without this kind of data, the Commission’s decision to ban indecent broadcasting during the extensive period here in question is not narrowly tailored to serve the asserted interest of facilitating parental supervision.
More telling perhaps than the lack of data on parental supervision and the programming children watch, is the lack of any consideration of other less speech-restrictive means in the Enforcement Order. The Commission simply asserted:
the broadcast indecency channeling program ... most effectively serves the compelling interest of protecting children from exposure to indecent broadcast material without intruding excessively on the rights of those entitled to present or receive such material. We therefore believe that the means chosen is the least restrictive available for the broadcast medium and that *683other alternatives cannot effectively farther this interest.
8 F.C.C.R. 711. To what other alternatives is the Commission referring? Absent from the Commission’s decision is any discussion of an alternative method. And yet, at oral argument, counsel for the FCC assured the court that blocking technology, in which a chip placed in television sets prevents certain shows from being transmitted, is available. See Tr. of Oral Argument at 62. This device actually facilitates parental supervision in allowing parents to choose what programs or stations to block; and it is undoubtedly less speech-restrictive since parents assume control.35 In the Alliance case heard on the same day as this one, the Commission presented another alternative, a segregate-and-scramble scheme of indecent programming on cable’s leased access channels. Again, while this may not be the best means, surely “exacting scrutiny” requires some consideration of alternatives before finding that the means chosen is the least restrictive available. The Commission’s Enforcement Order shows no consideration of alternatives when they clearly exist. Therefore, the Commission’s ban on indecent broadcast cannot be seen as the least restrictive means to facilitate parental control.
In summary, the. Government’s ban on indecent speech is not the least restrictive means available to further the Commission’s primary compelling interest of facilitating parental supervision of their children’s exposure to indecent programming.36 The Commission has failed to show that its secondary interest, protecting children from exposure to indecent broadcast, is compelling when it conflicts with the rights of parents to rear their children in the way they see fit .and when it is advanced with no evidence of harm. In applying the same level of scrutiny to regulations of broadcast as we do to regulations of cable and other media, it seems clear that section 16(a) and the Enforcement Order violate the First Amendment.
III. Conclusion
The Constitution prohibits the Government from infringing on the free speech rights of its citizens without showing that a content-based regulation is the least restrictive means to further compelling interests. The Government’s ban on indecent speech fails to pass exacting scrutiny. I would vacate the FCC’s Enforcement Order and hold section 16(a) of the Public Telecommunications Act of 1992 unconstitutional.
. See, e.g., Albert Bandura, Aggression: A Social Learning Analysis 72-76 (1973); William A. Belson. Television Violence and the Adolescent Boy (1978); George Comstock, The Evolution of American Television 159-238 (1989); Monroe M. Lefkowitz et al., Growing Up to be Violent: A Longitudinal Study of the Development of Aggression (1977); L. Rowell Huesmann et al.. The Effects of Television Violence on Aggression: A Reply to a Skeptic, in Psychology and Social Policy 191 (Peter Sued-feld & Philip E. Tetlock eds., 1992); David Pearl, Familial, Peer, and Television Influences on Aggressive and Violent Behavior, in Childhood Aggression and Violence: Sources of Influence, Prevention, and Control 231, 236-37 (David H. Crowell et al. eds., 1987).
. Alliance for Community Media involved the Cable Television Consumer Protection and Competition Act of 1992, Pub.L. No. 102-385, § 10, 106 Stat. 1460, 1468 (1992) and In the Matter of Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 8 F.C.C.R. 2638 (1993), which included a segregate-and-block scheme.
. Approximately 59 million households have cable television. Research & Policy Analysis Department, National Cable Television Association, Cable Television Developments- Industry Overview, Fall 1994, at 1-A (citing A.C. Nielsen Co. & Paul Kagan Associates, Inc., Marketing New Media, June 20, 1994); see also Alliance for Community Media, 56 F.3d at 124-25 (citing H.R.Conf.Rep. No. 862, 102d Cong., 2d Sess. 56 (1992) (noting that more than sixty percent of all households with television, subscribe to cable)); id. (citing S.Rep. No. 92, 102d Cong., 2d Sess. 3 (1991) U.S.Code Cong. & Admin.News 1992, pp. 1133, 1135, 1238 (noting that “[c]able television has become our Nation's dominant video distribution medium”)).
. In 1975, the percentage of television households with cable was 13%; in 1985, the percentage was 45%; and in 1994, estimations suggest between 62% and 63% of television households have cable. National Cable Television Association, at 1-A, 2-A.
. "Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) (television), and National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (print), and Riley v. National Fed’n of Blind of N.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (personal solicitation)." TBS, -U.S. at -, 114 S.Ct. at 2456 (parallel citations omitted).
. In beginning their analysis of content-based regulations of broadcast, Court opinions often cite to the now-familiar quotation from Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952): "Each method [of expression] tends to present its own peculiar problems.” See, e.g. Pacifica, 438 U.S. at 748, 98 S.Ct. at 3039-40; Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 386-87, 89 S.Ct. 1794, 1804-05, 23 L.Ed.2d 371 (1969); League of Women Voters, 468 U.S. at 377, 104 S.Ct. at 3106. In fact, these opinions seem to attribute more to the Court's statement in Joseph Burstyn than appears warranted. Compare Joseph Burstyn, 343 U.S. at 503, 72 S.Ct. at 781 ("Each method tends to present its own peculiar problems.”) with Pacifica, 438 U.S. at 748, 98 S.Ct. at 3039 (“We have long recognized that each medium of expression presents special First Amendment problems.” (citing Joseph Burstyn, 343 U.S. at 502-03, 72 S.Ct. at 780-81)) and Red Lion, 395 U.S. at 386-87, 89 S.Ct. at 1805 ("[Differences in the characteristics of new media justify differences in the First Amendment standards applied to them.” (citing Joseph Burs-tyn, 343 U.S. at 503, 72 S.Ct. at 781)).
More glaringly, these opinions fail to quote the sentence that follows. In Joseph Burstyn, the Supreme Court struck down a law which forbade the showing of any motion-picture film without a license, that could be withheld if a censor found the film sacrilegious. In determining that motion pictures were within the protection of the First Amendment, the Court stated: “Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary." 343 U.S. at 503, 72 S.Ct. at 781 (emphasis added). Certainly with respect to broadcast and cable, the peculiar problems or differences between the two media do not justify different levels of First Amendment protection.
. Interestingly, in responding to Government's argument that cable and broadcast are alike in that they both are beset by "market dysfunction," *674the TBS Court stated that “the special physical characteristics of broadcast transmission, not the economic characteristics of the broadcast market, are what underlies our broadcast jurisprudence.” - U.S. at -, 114 S.Ct. at 2457 (citations omitted). Apparently, the Court is now prepared to abandon the economic scarcity theory-
. The scarcity theory justifying regulation of broadcast was hinged in part on a public trust notion: "those who are granted a license to broadcast must serve in a sense as fiduciaries for the public.” League of Women Voters, 468 U.S. at 377, 104 S.Ct. at 3116.
. The Court recently restated this concern: "if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all.” TBS, - U.S. at -, 114 S.Ct. at 2456 (citing NBC, 319 U.S. at 212, 63 S.Ct. at 1007-08).
. See also TBS, - U.S. at -, 114 S.Ct. at 2457 (noting that spectrum scarcity "has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees" (citing Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806-07)); League of Women Voters, 468 U.S. at 377, 104 S.Ct. at 3116 ("The fundamental distinguishing characteristic of the new medium of broadcasting that, in our view, has required some adjustment in First Amendment analysis is that ‘[bjroadcast frequencies are a scarce resource [that] must be portioned out among applicants.’ " (quoting Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973))).
. In TBS, - U.S. at - n. 5, 114 S.Ct. at 2457 n. 5, the Court cited some of those courts and commentators: Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 508-09 (D.C.Cir.1986), cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987); Lee Bollinger, Images of a Free Press 87-90 (1991); Lucas Powe, American Broadcasting and the First Amendment 197-209 (1987); Matthew Spitzer, Seven Dirty Words and Six Other Stories 7-18 (1986); R.H. Coase, The Federal Communications Commission, 2 J.L. & Econ. 1, 12-27 (1959); Laurence H. Winer, The Signal Cable Sends—Part I: Why Can’t Cable Be More Like Broadcasting?, 46 Md.L.Rev. 212, 218-40 (1987); Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 Harv.L.Rev. 1062, 1072-74 (1994).
. The League of Women Voters Court noted that "[t]he prevailing rationale for broadcast regulation based on spectrum scarcity has come under increasing criticism in recent years,” and that “[c]ritics, including the incumbent Chairman of the FCC, charge that with the advent of cable and satellite television technology, communities now have access to such a wide variety of stations that the scarcity doctrine is obsolete.” 468 U.S. at 376-77 n. 11, 104 S.Ct. at 3115-16 n. 11 (citing Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation, 60 Tex.L.Rev. 207, 221-26 (1982)).
. In 1987, the Commission explicitly provided that "signal” to the Supreme Court in holding that, "the scarcity rationale developed in the Red Lion decision and successive cases no longer justifies a different standard of First Amendment review for the electronic press. Therefore, in response to the question raised by the Supreme Court in league of Women Voters, we believe that the standard applied in Red Lion should be reconsidered and that the constitutional principles applicable to the printed press should be equally applicable to the electronic press." In re Complaint of Syracuse Peace Council against Television Station WTVH Syracuse, New York, 2 F.C.C.R. 5043, 5053 (1987); see also Matthew L. Spitzer, The Constitutionality of Licensing Broadcasters, 64 N.Y.U.L.Rev. 990, 1011 (1989).
. For a particularly thorough rejection of various scarcity arguments, see Spitzer, supra, at 1013-20, and notes 12-14 supra.
. See Spitzer, supra, at 1013-15.
. Coase demonstrated that one can efficiently distribute rights to scarce resources through a market system. See Coase, supra, at 12-27.
. This court has found that "[bjroadcast frequencies are much less scarce now than when the scarcity rationale first arose in National Broadcasting Co. ... and it appears that currently 'the number of broadcast stations ... rivals and perhaps surpasses the number of newspapers and magazines in which political messages may effectively be carried.’ " Telecommunications Research & Action Ctr., 801 F.2d at 508-09 n. 4 (quoting Loveday v. FCC, 707 F.2d 1443, 1459 (D.C.Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 525, 78 L.Ed.2d 709 (1983)). This court went on to note, “[ijndeed, many markets have a far greater number of broadcasting stations than newspapers.” Id.; see also Cass R. Sunstein, Democracy and the Problem of Free Speech 54 (1993) (noting that most cities have far more television and radio stations than major newspapers).
. See Spitzer, supra, at 1015; cf. Fowler & Brenner, supra, at 222-23 (suggesting that additional channels can be added without increasing portion reserved for broadcast by decreasing bandwidth of each channel and claiming that advertising dollars restrict broadcast opportunities more than number of channels).
. Judge Bork's opinion Telecommunications Research & Action Ctr. sums up this point:
It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wishes to publish a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.
801 F.2d at 508 (footnotes omitted).
. Spitzer suggests that if one were to give paper away for free, the demand would certainly exceed the supply. See Spitzer, supra, at 1016.
. Coase presents a compelling argument for a free market system, in which we would treat broadcast rights as private property to avoid the chaos of the 1920s: after an initial allocation, ownership and use could be governed by the free market. See Coase, supra, at 12-27.
. In Joseph Burstyn, the Court faced a similar argument, "that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression.” 343 U.S. at 502, 72 S.Ct. at 780. The Court responded that, "[e]ven if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection. If there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship such as we have here.” Id.
.The plurality opinion added:
Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. 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.
Pacifica, 438 U.S. at 748-49, 98 S.Ct. at 3040. This elaboration on the intrusiveness rationale, of course, does not distinguish broadcast from cable.
. Zechariah Chafee provides a historical view of the Court’s wavering toleration of speech-restrictive regulations on different media:
Newspapers, books, pamphlets, and large meetings were for many centuries the only means of public discussion, so that the need for their protection has long been generally realized. On the other hand, when additional methods for spreading facts and ideas were introduced or greatly improved by modern inventions, writers and judges had not got into the habit of being solicitous about guarding their freedom. And so we have tolerated censorship of the mails, the importation of foreign books, the stage, the motion picture, and the radio.
Zechariah Chafee, Free Speech in the United States 381 (1942).
. The Justices voted 8-1 on this issue, although a majority of the Court found that the regulations were content neutral and applied intermediate scrutiny on this basis. See TBS, - U.S. at -, 114 S.Ct. at 2469.
. An earlier Court phrased this notion as: “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).
. Section 16(a) applies to "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.” Enforcement Order, 8 F.C.C.R. at 705 n. 10.
. At one point in its brief, the Commission attempts to narrow its interest in facilitating parents by claiming that it “aids parents who choose not to expose their children to indecent material.” Brief for Respondents at 16 (citing Enforcement Order, 8 F.C.C.R. at 710). This does not absolve the Government from trampling on the rights of parents. The only difference, is that in so phrasing its interest, the. Commission only clarifies the parents on whom it tramples: those parents who do not agree with the Commission about how best to raise their children.
. Were I hesitant that the Edenfield requirement to put forth some evidence of harm remained only in the commercial speech context, the Court’s TBS and League of Women Voters opinions assures me that Edenfield's requirements apply more broadly. In addition, it makes sense that whatever proof is required to pass intermediate scrutiny would also be required for exacting scrutiny.
. In fact, not only did the definition of the materials at issue in Ginsberg include the concept of harm, but the appellant did not argue that the obscenity in the magazines were not harmful to minors. Ginsberg, 390 U.S. at 635, 88 S.Ct. at 1278 (noting that appellant “makes no argument that the magazines are not 'harmful to minors' within the definition” in the statute).
.See Enforcement Order at 707 n. 36 (citing 138 Cong.Rec. at S7309-10 (June 2, 1992) (statement of Sen. Helms) (citing studies: Surgeon General's Scientific Advisory Committee on Television and Social Behavior, Television and Growing Up: The Impact of Televised Violence (U.S.Pub.Health Serv., 1972); Aimee D. Leifer & Donald F. Roberts, Children’s Responses to Television Violence, in 2 Television and Social Behavior 43-180 (U.S. Dep’t of Health, Educ., and Welfare, John P. Murray et al. eds., 1972) [hereinafter Television and Social Behavior]; Robert M. Liebert, Television and Social Learning: Some Relationships Between Viewing Violence and Behaving Aggressively, in 2 Television and Social Behavior 1-42; Ellen Coughlin, Is Violence on TV Harmful to Our Health? Some Scholars, A Vocal Minority, Say *682No, The Chron. of Higher Educ., Mar. 13, 1985, at 5; Erik Eckholm, Studies Link Teen-Age Suicides, TV, N.Y. Times, Sept 11, 1986, at C13)).
. See Enforcement Order at 707 n. 36 (citing 138 Cong Rec. at S7309-10 (citing studies: Shearon A. Lowery & Melvin L. De Fleur, Milestones in Mass Communication Research: Media Effects 406-07 (2d ed.1983); Elizabeth J. Roberts, Television and Sexual Learning in Childhood, in 2 Television and Behavior: Ten Years of Scientific Progress and Implications for the Eighties 209-23 (Nat’l Inst. of Mental Health, David Pearl et al. eds., 1982) [hereinafter Television and Behavior]; 1 Television and Behavior 87 (Summary Report))).
. See, e.g., note 2 supra.
. Counsel for the FCC noted that "[tjhis [technology] really hasn’t been pushed here,” suggesting that the reason was expense (but citing no evidence to support the suggestion). Tr. of Oral Argument at 62. While the cost may or may not in fact be prohibitive, the Commission at a minimum should have considered less speech-restrictive options like this one.
. The majority finds that a 6 a.m. to midnight ban is the least restrictive means to further compelling interests and then goes on to find that a 6 a.m. to 10 p.m. ban is also the least restrictive means. While a 6 a.m. to 10 p.m. ban is certainly less speech restrictive than a 6 a.m. to midnight ban, it seems absurd to suggest that they are both the least restrictive means. As the majority itself notes, "the preferential safe harbor has the effect of undermining ... the constitutional viability of the more restrictive safe harbor that appears to have been Congress’s principal objective in enacting section 16(a)."