dissenting:
“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. Our political system and cultural life rest upon this ideal.” Turner Broadcasting System, Inc. v. FCC, — U.S. -, -, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994). Very often this principle is not such an easy one to live up to or to live with. But presumptively, expression that many or even most of us find deeply reprehensible may not be, on that basis alone, proscribed. In R.A.V. v. City of St. Paul, — U.S. -, -, 112 S.Ct. 2588, 2550, 120 L.Ed.2d 305 (1992), for instance, the Court held that racist fighting words could not be penalized on the basis of the hatred they expressed. Thus, whatever our collective interests in a “meritorious polity” and the moral development of the “people [who] govern it,” Majority Opinion (“Maj. op.”) at 663, governmental *684enforcement of those interests is radically constrained by the First Amendment’s guarantee of freedom of expression.
This principle of free speech admits of limited exceptions, one of which is the permissibility of some government regulation of broadcast indecency. In FCC v. Pacifica Foundation, 438 U.S. 726, 729, 750-51, 98 S.Ct. 3026, 3030, 3039-41, 57 L.Ed.2d 1073 (1978), for example, the Supreme Court concluded that the Federal Communications Commission could constitutionally penalize the daytime broadcast of a dialogue containing the repeated use of “filthy words.” As Chief Judge Edwards notes, Pacifica’s result rested in large part on technological assumptions about the uniqueness of broadcast that have changed significantly in recent years, and the time may be ripe for the Court to recognize those changes by reevaluating its decision in that case. I believe, however, that the “safe harbor” proposed by the government here is unconstitutional even if the Court does not reconsider Pacifica.
Because indecent speech is fully within the ambit of First Amendment protection, the permissibility of government regulation of indecency depends crucially on the distinction between banning and channelling speech. Even Pacifica did not, by any stretch of the imagination, grant the government discretion to censor broadcast indecency however it pleased. Rather, Pacifica was “an emphatically narrow holding,” Sable Communications v. FCC, 492 U.S. 115, 127, 109 S.Ct. 2829, 2837, 106 L.Ed.2d 93 (1989), addressed solely to the Commission’s single enforcement decision on review in that case and with the understanding that the Commission “ ‘never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.’ ” Pacifica, 438 U.S. at 738, 98 S.Ct. at 3032. In keeping with this emphasis on channelling, the Court noted in Sable that the “most obvious []” — and salient — distinction between the telephone indecency ban at issue in that case and in Pacifica was that Pacifica “did not involve a total ban on broadcasting indecent material.” 492 U.S. at 127, 109 S.Ct. at 2837. As this court has held, an outright ban on broadcast indecency is unconstitutional. See Action for Children’s Television v. FCC, 932 F.2d 1504, 1509 (D.C.Cir.1991) (“ACT II”); see also Alliance for Community Media v. FCC, 56 F.3d 105 (D.C.Cir.1995) (“If decisions of cable operators not to carry indecent programs ... were treated as decisions of the government, the Commission and the United States would be hard put to defend the constitutionality of these provisions.”).
Because the channelling of indecency effectuates a very delicate balance between the uncontestable First Amendment rights of adult viewers and the interests of parents (or society) in protecting immature children from indecent material — interests I discuss at greater length below — the design of the channelling is of utmost constitutional import. This the majority recognizes, in theory if not in fact: “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.” Maj. op. at 665 (emphasis added); see also Alliance for Community Media v. FCC, 56 F.3d at 124 (“[I]n fashioning such a regulation, the government must strive to accommodate at least two competing interests: the interest in limiting children’s exposure to indecency and the interest of adults in having access to such material.”); id., dissenting op. of Judge Wald at 16 (“[A] regulation can be the most effective means of achieving a compelling interest and still run afoul of the First Amendment if it burdens substantial amounts of protected speech beyond what would be reasonably effective in serving the compelling interest.”).
Thus, although the use of channelling as a regulatory tool is a distinct and largely uncharted area of First Amendment law, the majority and I are in agreement that its precision and care hold the constitutional passkey to permissible regulation. Like any content-based restriction on speech, the regulation of broadcast indecency must be narrowly tailored to a compelling government interest and it must avoid undue “infringe[ment] on the adult population’s right to see and hear indecent material.” Maj. op. at 665.
*685It is in implementing this balance that I part decisively with the majority. Any time-based ban on the airing of indecency intrudes substantially into the rights of adult viewers and listeners and places the government in the extraordinarily sensitive role of censor. By now, at least in the posture of the current case, it is probably too late to revisit our conclusion that the chill brought about by the Commission’s open-textured definition of indecency is insufficiently great to invalidate the regulation. See Action for Children’s Television v. FCC, 852 F.2d 1332, 1338-40 (D.C.Cir.1988) (“ACT I”). Even a cursory glance at the Commission’s enforcement policy to date, however, suggests that that chill is quite substantial, heightening the need for a meaningful safe harbor.1
Because the Commission insists that indecency determinations must be made on a ease-by-ease basis and depend upon a multifaceted consideration of the context of allegedly indecent material, broadcasters have next-to-no guidance in making complex judgment calls. Even an all clear signal in one case cannot be relied upon by broadcasters “unless both the substance of the material they aired and the context in which it was aired were substantially similar.” Sagittarius Broadcasting Corp., Notice of Apparent Liability, 7 F.C.C.R. 6873, 6874 (1992). Thus, conscientious broadcasters and radio and television hosts seeking to steer clear of indecency face the herculean task of predicting on the basis of a series of hazy ease-by-case determinations by the Commission which side of the line their program will fall on. When, for instance, radio station hosts read over the air from a Playboy Magazine interview of Jessica Hahn about her alleged rape by the Reverend Jim Bakker, they did not regard the material as indecent because it involved matters of obvious public concern. The Commission, however, issued a notice of apparent liability for a forfeiture of $2,000, explaining that, “while the newsworthy nature of broadcast material and its presentation in a serious, newsworthy manner would be relevant contextual considerations in an indecency determination, they are not, in themselves, dispositive factors.” KSD-FM, Notice of Apparent Liability, 6 F.C.C.R. 3689, 3689 (1990). Newsworthiness, the Commission explained, is “simply one of many variables”; no single feature renders a work per se not indecent. Id. Although in reading the interview, the hosts had said that the account made them “sick,” that it described rape rather than consensual sex, and that they regretted their earlier jokes about the incident, the Commission concluded, without elaboration, that the presentation was “pandering.” Id. at 3689-90. As this one case exemplifies so well, in enforcing the indecency regulations the Commission takes upon itself a delicate and inevitably subjective role of drawing fine lines between “serious” and “pandering” presentations. And even a “serious” presentation of newsworthy material is emphatically not shielded from liability. This incident and the Commission’s discussion of it suggests that enforcement of its indecency regulation involves both government- and self-censorship of much material that presents far harder choices than the glaring examples of smut emphasized to such rhetorical effect by the majority. Maj. op. at 657, 660.
Because of this potential for significant incursion into the First Amendment rights of adult viewers and listeners during the hours of the day and evening when the ban is in effect, it is particularly important that the channelling “balance” struck by the government preserve a meaningful place on the spectrum for adult rights to hear and view controversial or graphic nonobscene material — that airing of such material not be restricted to a safe harbor that is in reality a ship’s graveyard. Thus, I cannot agree with the majority that determining the perimeter *686of the safe harbor can be relegated to the category of discretionary line-drawing akin to the distance from polls at which electioneering is allowed and so largely shielded from judicial review. Maj. op. at 667. God or the Devil (pick your figure of speech) is in the details. Because the safe harbor constitutes the exclusive repository for the substantial First Amendment rights of adults, its boundaries are of “constitutional dimension.” Cf. Burson v. Freeman, 504 U.S. 191, 210, 112 S.Ct. 1846, 1857, 119 L.Ed.2d 5 (1992). For that reason, it cannot be beyond the competence of this court to ensure that the safe harbor ensures meaningful as opposed to pro forma accommodation of adult rights.
On the basis of the information given us by the Commission and that was before Congress, it is impossible to conclude that the midnight to 6 a.m. safe harbor strikes a constitutionally acceptable balance. Recent Supreme Court cases have made clear that “[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. 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.” Turner, — U.S. at-, 114 S.Ct. at 2470 (internal quotations omitted). In light of so exacting a standard, one must, from the very outset, entertain grave misgivings about the designation of the midnight to 6 a.m. boundaries.2 Without a clear exposition of the scope of the government’s interest, we cannot know whether its means are tailored to be the least restrictive available. See Edenfield v. Fane, — U.S. -, -, 113 S.Ct. 1792, 1798, 123 L.Ed.2d 543 (1993) (“the extent of the restriction on protected speech [must be] in reasonable proportion to the interests served”). Yet, in the record before Congress, there is as little evidence regarding the magnitude of psychological or moral harm, if any, to children and teenagers who see and hear indecency as there is that such exposure even occurs inside the current safe harbor. In the six years that the safe harbor has been operating from 8 p.m. to 6 a.m., and the prior years in which it covered 10 p.m. to 6 a.m., the government has adduced no concrete evidence of real or even potential harm suffered by the exposure of children to indecent material. We have not a scintilla of evidence as to how many allegedly indecent programs have been either aired or seen or heard by children inside or outside the safe harbor. Thus, even if the government were allowed to presume harm from mere exposure to indecency, surely it cannot progressively constrict the safe harbor in the absence of any indication that the presumed harm is even occurring under the existing regime.
Even if the government were acting on a tabula rasa, rather than on the basis of years of experience with a less restrictive ban, its delineation of the midnight to 6 a.m. safe harbor would be unjustifiable. I agree with Chief Judge Edwards that the primary government interest here must be in facilitating parental supervision of children. Although the Supreme Court has recognized the government’s own interest in protecting children from exposure to indecency, it has never identified this interest as one that could supersede the parental interest. The government’s protective responsibility in a matter of morals is, as the majority recognizes, “complementary” to that of parents. Maj. op. at 663. Thus, although the majority speaks broadly of the government’s independent interest in shielding children from indecency, Maj. op. at 661-62, it recognizes — as it must — that this interest is circumscribed; absent neglect or abuse, it cannot rise above the parental interest in childrearing. Maj. op. at 663 (parents who wish may expose their children to indecency). In the end, the majority admits the government’s own interest in children is limited to “shielding minors from being exposed to indecent speech by persons other than a parent.” Maj. op. at 663.
The majority is right: the government’s primary if not exclusive interest is in “shielding minors from being exposed to indecent *687speech by persons other than a parent.” Given the significant First Amendment rights of adults at stake, moreover, the government has a constitutional responsibility to key its response to the presumed harm from indecency to facilitating parental control, rather than to government censorship per se. When most parents are presumably able to supervise their children, adult viewers should have access to the speech to which they are entitled. See Pacifica Foundation v. FCC, 556 F.2d 9, 36 (D.C.Cir.1977) (Leventhal, J., dissenting) (“A ruling expanding the zone of the broadcastable to adult levels might apply when the time of broadcast is such that the great preponderance of children are subject to parental control.”).
Because the government can pursue whatever legitimate interests it has in protecting children by facilitating parental control, I do not believe that it can impose a valid ban during any hours it pleases solely because some children are in the audience. Nor do I believe that we can throw up our hands at the assumed impossibility of parental supervision simply because large numbers of children have television sets in their own room. Either or both of these excuses would justify a 24-hour ban as easily as the current 18-hour ban. Reasoning along these fines totally ignores the adult First Amendment interest that the majority purportedly recognizes and, effectively, gives the government unharnessed power to censor.
Instead, the scope of any safe harbor can only be responsibly justified in the terms that the government emphasized at oral argument. Counsel for the government maintained that its primary interest is in assisting parents to control their children’s viewing and that the function of a safe harbor is to support this interest by identifying for parents a reasonable time period during which they must exert their supervisory function.3 A safe harbor, so tailored, may well be a constitutionally acceptable means of furthering society’s interest in protecting children.4 Advancement of this justification, however, requires careful tailoring of a sort completely neglected by the government. Though it may be entirely logical for the government to assist parents by purging the airwaves of indecency during certain hours when parental supervision typically is at a low ebb, the government should be put to the task of demonstrating that the banned hours are based on a showing that these are the times of preponderant children viewing and the times when parents are otherwise absorbed in work in or out of the home. As the initial panel opinion explained, “[t]he Commission[ ] ... appears to assume that, regardless of the time of day or night, parents cannot effectively supervise their children’s television or radio habits. Accordingly, the government has not adduced any evidence suggesting that the effectiveness of parental supervision varies by time of day or night, or that the particular safe harbor from midnight to 6 a.m. was crafted to assist parents at specific times when they especially require the government’s help to supervise their children.” Action for Children’s Television v. FCC, 11 F.3d 170, 178 (D.C.Cir.1993) (“ACT III”).
In constructing a safe harbor the government needs to give more careful consideration to those hours in the evening when parental control could reasonably be relied upon in lieu of censorship to protect children. *688It is only in this manner that the government can genuinely strike the delicate balance between adult freedoms of expression and society’s interest in shielding children from indecency and a truly safe harbor can be crafted that “serve[s] the compelling governmental interests without unduly infringing on the adult population’s right to see and hear indecent material.” Maj. op. at 665.
Despite the majority’s valiant effort to extract evidence for the government’s position from the sparse record before us, the pickings are too slim for constitutional legitimacy. See Turner, — U.S. at -, -, 114 S.Ct. at 2470, 2471 (rejecting record that included “unusually detailed statutory findings,” id. at -, 114 S.Ct. at 2461, as insufficiently detailed to survive intermediate scrutiny under the First Amendment). There is no evidence at all of psychological harm from exposure to indecent programs aired inside the current safe harbor. There is no evidence either that parents cannot supervise their children in those safe harbor hours or that “grazing” is leading to any significant viewing of indecency.5 Finally, the imminence of “V-chip” technology to enable parental control of all violence- and indecency-viewing suggests that a draconian ban from 6 a.m. to midnight is decidedly premature.
In spite of this evidentiary black hole, we have a broadside ban on vaguely defined indecency during all hours when most working people are awake, with a small bow to prior judicial rulings that a complete ban is unconstitutional, but no attempt to fashion an accommodation between the First Amendment and family values. The net effect of the majority’s decision is a gratuitous grant of power allowing casual and lightly reviewed administrative decisionmaking about fundamental liberties. I respectfully dissent.
. In light of the Commission’s dramatically expanding enforcement policy — from the period extending several years beyond Pacifica in which the Commission only enforced the regulation against broadcasts substantially similar to the "filthy words” monologue penalized in that case to the current, ever-increasing reach of Commission enforcement — I am at a loss to understand the majority's conclusion that "[wjhatever chilling effects may be said to inhere in the regulation ... have existed ever since the Supreme Court first upheld the FCC's enforcement of section 1464 of the Radio Act.” Maj. op. at 666. As broadcasters learn of the Commission's more aggressive stance, their prophylactic measures are bound to increase.
. Although the end result of the majority's decision is to extend the safe harbor from 10 p.m. to 6 a.m., it holds that so long as Congress enacts a uniform rule, the midnight to 6 a.m. safe harbor is constitutionally adequate. Accordingly, I address my discussion to the narrower safe harbor.
. To the extent that the majority suggests that deferring to the judgment of elected official is appropriate, it is interesting to note that the American public appears to agree that the primary burden of protecting children from indecency should be on parents. While 83% of those surveyed in a recent poll believe that the entertainment industry "should make a serious effort to reduce sex and violence in movies and music and on TV,” most placed the blame on parents for exposing children to sex and violence on TV. 63% felt that the federal government should not "become involved in restricting sex and violence presented by the entertainment industry.” Sam Ward, Most Want Less Sex, Violence in Movies and Music, on TV, USA Today, June 9, 1995, at 4A.
. This assessment, of course, is made in light of the currently available means. At the moment I write, Congress is actively considering requiring a "V-chip” in all new television sets that would enable parents to block offensive speech whenever broadcast and a rating system giving the advance information on questionable programs. As such technology advances and becomes universally available, the government bears the continuing obligation to ensure that its means of regulating indecency are the least restrictive among all those available.
. The station-specific data we requested in ACT I and ACT II is nowhere to be found in the record. See ACT II, 932 F.2d at 1510.