author:
Justice White
      Justice O’Connor, Justice Scalia,
      Justice Marshall, Justice Stevens,

text:
    HOFFMAN, TRUSTEE v. CONNECTICUT DEPARTMENT OF INCOME MAINTENANCE et al.
    No. 88-412.
    Argued April 19, 1989
    Decided June 23, 1989

      White, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 105. Scalia, J., filed an opinion concurring in the judgment, post, p. 105. Marshall, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 106. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 111.

      Martin W. Hoffman, pro se, argued the cause and filed a brief for petitioner.

      Deputy Solicitor General Merrill argued the cause for the United States. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Bolton, and Christopher J. Wright. Clarine Nardi Riddle, Acting Attorney General of Connecticut, argued the cause for the state respondents. With her on the brief were Kenneth A. Graham, Joan E. Pilver, and Carl J. Schuman, Assistant Attorneys General.

        Michael E. Friedlander, Charles R. Work, and Seth D. Greenstein filed a brief for Inslaw, Inc., as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of Arizona, by Robert K. Corbin, Attorney General, and Anthony B. Ching, Solicitor General; and for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Robert J. Ruiz, Solicitor General, and James C. O’Connell and Barbara L. Greenspan, Special Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Warren Price III of Hawaii, Linley E. Pearson of Indiana, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Robert M. Spire of Nebraska, John P. Arnold of New Hampshire, Lacy H. Thornburg of North Carolina, Nicholas J. Spaeth of North Dakota, T. Travis Medlock of South Carolina, Charles W. Burson of Tennessee, James Mattox of Texas, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin.

   Justice White

announced the judgment of the Court and delivered an opinion in which The Chief Justice, Justice O’Connor, and Justice Kennedy join.

The issue presented by this case is whether § 106(c) of the Bankruptcy Code, 11 U. S. C. § 106(c), authorizes a bankruptcy court to issue a money judgment against a State that has not filed a proof of claim in the bankruptcy proceeding.

Petitioner Martin W. Hoffman is the bankruptcy trustee for Willington Convalescent Home, Inc. (Willington), and Edward Zera in two unrelated Chapter 7 proceedings. On behalf of Willington, he filed an adversarial proceeding in United States Bankruptcy Court — a “turnover” proceeding under 11 U. S. C. § 542(b) — against respondent Connecticut Department of Income Maintenance. Petitioner sought to recover $64,010.24 in payments owed to Willington for services it had rendered during March 1983 under its Medicaid contract with Connecticut. Willington closed in April 1983. At that time, it owed respondent $121,408 for past Medicaid overpayments that Willington had received, but respondent filed no proof of claim in the Chapter 7 proceeding.

Petitioner likewise filed an adversarial proceeding in United States Bankruptcy Court on behalf of Edward Zera against respondent Connecticut Department of Revenue Services. Zera owed the State of Connecticut unpaid taxes, penalties, and interest, and in the month prior to Zera’s filing for bankruptcy the Revenue Department had issued a tax warrant resulting in a payment of $2,100.62. Petitioner sought to avoid the payment as a preference and recover the amount paid. See 11 U. S. C. § 547(b).

Respondents moved to dismiss both actions as barred by the Eleventh Amendment. In each case the Bankruptcy Court denied the motions to dismiss, reasoning that Congress in § 106(c) had abrogated the States’ Eleventh Amendment immunity from actions under §§ 542(b) and 547(b) of the Bankruptcy Code and that Congress had authority to do so under the Bankruptcy Clause of the United States Constitution, Art. I, § 8, cl. 4. Respondents appealed to the United States District Court, and the United States intervened because of the challenge to the constitutionality of § 106. The District Court reversed without reaching the issue of congressional authority. 72 B. R. 1002 (Conn. 1987). The court held that § 106(c), when read with the other provisions of § 106, did not unequivocally abrogate Eleventh Amendment immunity.

The United States Court of Appeals for the Second Circuit affirmed the District Court. 850 F. 2d 50 (1988). The Court of Appeals concluded that the plain language of § 106(c) abrogates sovereign immunity “only to the extent necessary for the bankruptcy court to determine a state’s rights in the debtor’s estate.” Id., at 55. The section does not, according to the Court of Appeals, abrogate a State’s Eleventh Amendment immunity from recovery of an avoided preferential transfer of money or from a turnover proceeding. The Court of Appeals specifically rejected petitioner’s reliance on the legislative history of § 106(c) because that expression of congressional intent was not contained in the language of the statute as required by Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). Because the actions brought by petitioner were not within the scope of § 106(c), the court held that they were barred by the Eleventh Amendment.

The Second Circuit’s decision conflicts with the decisions of the Third Circuit in Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F. 2d 130, 133, cert. denied, 479 U. S. 936 (1986), and the Seventh Circuit in McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327, cert. denied, 484 U. S. 895 (1987). We granted certiorari to resolve the conflict, 488 U. S. 1003 (1989), and we now affirm.

Section 106 provides as follows:

“(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose. -
“(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate.
“(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity—
“(1) a provision of this title that contains ‘creditor,’ ‘entity,’ or ‘governmental unit’ applies to governmental units; and
“(2) a determination by the court of an issue arising under such a provision binds governmental units.” 11 U. S. C. § 106.

Neither § 106(a) nor § 106(b) provides a basis for petitioner’s actions here, since respondents did not file a claim in either Chapter 7 proceeding. Instead, petitioner relies on § 106(c), which he asserts subjects “governmental units,” which includes States, 11 U. S. C. § 101(26), to all provisions of the Bankruptcy Code containing any of the “trigger” words in § 106(c)(1). Both the turnover provision, § 542(b), and the preference provision, § 547(b), contain trigger words — “an entity” is required to pay to the trustee a debt that is the property of the estate, and a trustee can under appropriate circumstances avoid the transfer of property to “a creditor.” Therefore, petitioner reasons, those provisions apply to respondents “notwithstanding any assertion of sovereign immunity,” including Eleventh Amendment immunity.

We disagree. As we have repeatedly stated, to abrogate the States’ Eleventh Amendment immunity from suit in federal court, which the parties do not dispute would otherwise bar these actions, Congress must make its intention “unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, supra, at 242; see also Dellmuth v. Muth, 491 U. S. 223, 227-228 (1989); Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 474 (1987) (plurality opinion). In our view, § 106(c) does not satisfy this standard.

Initially, the narrow scope of the waivers of sovereign immunity in §§ 106(a) and (b) makes it unlikely that Congress adopted in § 106(c) the broad abrogation of Eleventh Amendment immunity for which petitioner argues. The language of § 106(a) carefully limits the waiver of sovereign immunity under that provision, requiring that the claim against the governmental unit arise out of the same transaction or occurrence as the governmental unit’s claim. Subsection (b) likewise provides for a narrow waiver of sovereign immunity, with the amount of the offset limited to the value of the governmental unit’s allowed claim. Under petitioner’s interpretation of § 106(c), however, the only limit is the number of provisions of the Bankruptcy Code containing one of the trigger words. With this “limit,” § 106(c) would apply in a scattershot fashion to over 100 Code provisions.

We believe that § 106(c)(2) operates as a further limitation on the applicability of § 106(c), narrowing the type of relief to which the section applies. Section 106(c)(2) is joined with subsection (c)(1) by the conjunction “and.” It provides that a “determination” by the bankruptcy court of an “issue” “binds governmental units.” This language differs significantly from the wording of §§ 106(a) and (b), both of which use the word “claim,” defined in the Bankruptcy Code as including a “right to payment.” See 11 U. S. C. §101(4)(A). Nothing in § 106(c) provides a similar express authorization for monetary recovery from the States.

The language of § 106(c)(2) is more indicative of declaratory and injunctive relief than of monetary recovery. The clause echoes the wording of sections of the Code such as §505, which provides that “the court may determine the amount or legality of any tax,” 11 U. S. C. § 505(a)(1), a determination of an issue that obviously should bind the governmental unit but that does not require a monetary recovery from a State. We therefore construe § 106(c) as not authorizing monetary recovery from the States. Under this construction of § 106 (c), a State that files no proof of claim would be bound, like other creditors, by discharge of debts in bankruptcy, including unpaid taxes, see Neavear v. Schweiker, 674 F. 2d 1201, 1204 (CA7 1982); cf. Gwilliam v. United States, 519 F. 2d 407, 410 (CA9 1975), but would not be subjected to monetary recovery.

We are not persuaded by the. suggestion of petitioner’s amicus that the use of the word “determine” in the jurisdictional provision of the Code, 28 U. S. C. § 157(b)(1) (1982 ed., Supp. V), is to the contrary. Brief for INSLAW, Inc., as Amicus Curiae 10-11. That provision authorizes bankruptcy judges to determine “cases” and “proceedings,” not issues, and provides that the judge may “enter appropriate orders and judgments,” not merely bind the governmental unit by its determinations. Moreover, the construction we give to § 106(c) does not render irrelevant the language of the section that it applies “notwithstanding any assertion of sovereign immunity.” The section applies to the Federal Government as well, see 11 U. S. C. § 101(26) (defining “governmental unit” as including the “United States”), and the language in § 106(c) waives the sovereign immunity of the Federal Government so that the Federal Government is bound by determinations of issues by the bankruptcy courts even when it did not appear and subject itself to the jurisdiction of such courts. See, e. g., Neavear, supra, at 1204.

Petitioner contends that the language of the sections containing the trigger words supplies the necessary authorization for monetary recovery from the States. This interpretation, however, ignores entirely the limiting language of § 106(c)(2). Indeed, § 106(c), as interpreted by petitioner, would have exactly the same effect if subsection (c)(2) had been totally omitted. “It is our duty ‘to give effect, if possible, to every clause and word of a statute,’” United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)), and neither petitioner nor his amicus suggests any effect that their interpretation gives to subsection (c)(2).

Finally, petitioner’s reliance on the legislative history of § 106(c) is.also misplaced. He points in particular to floor statements to the effect that “section 106(c) permits a trustee or debtor in possession to assert avoiding powers under title 11 against a governmental unit.” See 124 Cong. Rec. 32394 (1978) (statement of Rep. Edwards); id., at 33993 (statement of Sen. DeConcini). The Government suggests that these statements should be construed as referring only to cases in which the debtor retains a possessory or ownership interest in the property that the trustee seeks to recover, Brief for United States 20, and cites as an example this Court’s decision in United States v. Whiting Pools, Inc., 462 U. S. 198 (1983) (holding that the Internal Revenue Service could be required to turn over to bankrupt estate tangible property to which debtor retained ownership).

The weakness in petitioner’s argument is more fundamental, however, as the Second Circuit properly recognized. As we observed in Dellmuth v. Muth, 491 U. S., at 230, “[legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment.” If congressional intent is unmistakably clear in the language of the statute, reliance on committee reports and floor statements will be unnecessary, and if it is not, Atascadero will not be satisfied. 491 U. S., at 228-229. Similarly, the attempts of petitioner and his amicus to construe § 106(c) in light of the policies underlying the Bankruptcy Code are unavailing. These arguments are not based in the text of the statute and so, too, are not helpful in determining whether the command of Atascadero is satisfied. See 491 U. S., at 230.

We hold that in enacting § 106(c) Congress did not abrogate the Eleventh Amendment immunity of the States. Therefore, petitioner’s actions in United States Bankruptcy Court under §§ 542(b) and 547(b) of the Code are barred by the Eleventh Amendment. Since we hold that Congress did not abrogate Eleventh Amendment immunity by enacting § 106 (c), we need not address whether it had the authority to do so under its bankruptcy power. Cf. Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989). The judgment of the Second Circuit is affirmed.

It is so ordered.

Justice O’Connor,

concurring.

Although I agree with Justice Scalia that Congress may not abrogate the States’ Eleventh Amendment immunity by enacting a statute under the Bankruptcy Clause, a majority of the Court addresses instead the question whether Congress expressed a clear intention to abrogate the States’ Eleventh Amendment immunity. On the latter question, I agree with Justice White and join the plurality’s opinion.

Justice Scalia,

concurring in the judgment.

I concur in the Court’s judgment that “petitioner’s actions in United States Bankruptcy Court under §§ 542(b) and 547(b) of the [Bankruptcy] Code are barred by the Eleventh Amendment.” Ante, at 104. I reach this conclusion, however, not on the plurality’s basis that “Congress did not abrogate Eleventh Amendment immunity” of the States, ibid., but on the ground that it had no power to do so. As I explained in my opinion concurring in part and dissenting in part in Pennsylvania v. Union Gas Co., 491 U. S. 1, 35-42 (1989), it makes no sense to affirm the constitutional principle established by Hans v. Louisiana, 134 U. S. 1 (1890), that “ ‘a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued,”’ Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 486 (1987) (plurality opinion), quoting Hans, supra, at 21 (Harlan, J., concurring), and to hold at the same time that Congress can override this principle by statute in the exercise of its Article I powers. Union Gas involved Congress’ powers under the Commerce Clause, but there is no basis for treating its powers under the Bankruptcy Clause any differently. Accordingly, I would affirm the judgment of the Court of Appeals without the necessity of considering whether Congress intended to exercise a power it did not possess.

Justice Marshall,

with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting.

In my view, the language of § 106(c) of the Bankruptcy Code (Code), 11 U. S. C. § 106(c), satisfies even the requirement that Congress’ intent to abrogate the States’ Eleventh Amendment immunity be “unmistakably clear.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). Because Congress clearly expressed its intent to authorize a bankruptcy court to issue a money judgment against a State that has not filed a proof of claim in a bankruptcy proceeding, and because Congress has the authority under the Bankruptcy Clause to abrogate the States’ Eleventh Amendment immunity, I respectfully dissent.

Section 106(c) states that, “notwithstanding any assertion of sovereign immunity,” any Code provision containing one of the trigger words — “creditor,” “entity,” or “governmental unit” — applies to the States, and that “a determination by the court of an issue arising under such a provision binds [the States]” (emphasis added). The drafters of § 106(c) were fully aware of “the requirement in case law that an express waiver of sovereign immunity is required in order to be effective.” 124 Cong. Rec. 32394 (1978) (statement of Rep. Edwards); id., at 33993 (statement of Sen. DeConcini); see Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279, 285 (1973). They therefore carefully abrogated the States’ sovereign immunity in three steps. First, they eliminated “any assertion of sovereign immunity.” § 106(c). Second, they included States within the trigger words used elsewhere in the Code. § 106(c)(1). Third, they provided that States would be bound by the orders of the bankruptcy court. § 106(c)(2). What the plurality sees as redundancy in subsections (c)(1) and (c)(2) is thus more reasonably understood as evidence of the importance Congress attached to ensuring that the abrogation of sovereign immunity was express.

By its terms, § 106(c) makes no distinction between Code provisions that contain trigger words and permit only injunc-tive and declaratory relief, and Code provisions that contain trigger words and permit money judgments. Nevertheless, by placing heavy emphasis on the word “determination” in § 106(c)(2), the plurality concludes that § 106(c), in its entirety, is “more indicative of declaratory and injunctive relief than of monetary recovery.” Ante, at 102. The plurality justifies this conclusion by accepting an analogy to the use of the word “determine” in a Code provision dealing with taxes, § 505(a)(1), while rejecting an equally compelling analogy to the use of the word “determine” in the Code’s jurisdictional provision, 28 U. S. C. § 157(b)(1) (1982 ed., Supp. V). But instead of trying to force meaning into the word “determination” through competing analogies to other Code provisions, we should give decisive weight to the explicit language abrogating sovereign immunity.

The plurality correctly points out that the abrogation of sovereign immunity in § 106(c) should not be read to overwhelm the narrow scope of the voluntary waiver set forth in §§ 106(a) and (b). But the plurality’s conclusion that § 106(c) must therefore refer only to declarative and injunctive relief rests on the mistaken assumption that, without such a narrowing interpretation, “the only limit is the number of provisions in the Bankruptcy Code containing one of the trigger words.” Ante, at 102 (emphasis added). The plurality then raises the specter that “§ 106(c) would apply in a scatter-shot fashion to over 100 Code provisions,” ibid., offering virtually endless opportunities for money judgments against the States.

Nothing could be further from the truth, for most of the Code provisions containing trigger words do not contemplate money judgments. Some provide States, in their role as creditors or entities, with rights against the debtor. Others limit relief against “creditors,” “entities,” or “governmental units” to declaratory or injunctive relief. Only a handful of the triggered sections clearly contemplate money judgments against a “creditor,” “entity,” or “governmental unit.” These include the Code provisions at issue in this case, i. e., the provision giving a trustee the power to avoid preferential payments made to “creditors,” §547, and the provision requiring “entities” to turn over property and money belonging to the debtor. §542. Thus, rather than reading § 106(c) in isolation as the plurality does, the provision should be read in light of the Code provisions containing the trigger words “creditor,” “entity,” and “governmental unit.” Only in this way is it possible to appreciate the limited extent to which Congress sought to abrogate the States’ sovereign immunity in § 106(c). See Kelly v. Robinson, 479 U. S. 36, 43 (1986) (Code should be read as an integrated whole).

By expressly including States within the terms “creditor” and “entity,” Congress intended States generally to be treated the same as ordinary “creditors” and “entities,” who are subject to money judgments in a relatively small number of Code provisions. The effect of today’s decision is to exempt States from these provisions, which are crucial to the efficacy of the Code. The plurality therefore ignores Congress’ careful choice of language and turns States into preferred actors. By allowing a trustee to recapture payments made to creditors 90 days before a bankruptcy petition is filed, the preference provision prevents anxious creditors from grabbing payments from an insolvent debtor and hence getting more than their fair share. After today, however, any State owed money by a debtor with financial problems will have a strong incentive to collect whatever it can, as fast as it can, even if doing so pushes the debtor into bankruptcy. Ordinary creditors will soon realize that States can receive more than their fair share; the very existence of this governmental power will cause these other creditors, in turn, to increase pressure on the debtor. See McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 328 (CA7), cert. denied, 484 U. S. 895 (1987). The turnover provision is designed to prevent third parties from keeping property of the debtor or from refusing to make payments owed to the debtor, thereby aiding the reorganization of the debtor’s affairs or the orderly and equitable distribution of the estate. See United States v. Whiting Pools, Inc., 462 U. S. 198, 202-203 (1983). Exempting States from this provision, as well as from the preference provision, undermines these important policy goals of the Code.

My conclusion that Congress intended § 106(c) to abrogate the States’ Eleventh Amendment immunity against money judgments requires me to decide whether Congress has the authority under the Bankruptcy Clause to do so. In Pennsylvania v. Union Gas Co., 491 U. S. 1, 19 (1989) (plurality opinion); id., at 57 (White, J., concurring in judgment), we held that Congress has the authority under the Commerce Clause to abrogate the States’ Eleventh Amendment immunity. I see no reason to treat Congress’ power under the Bankruptcy Clause any differently, for both constitutional provisions give Congress plenary power over national economic activity. See The Federalist No. 42, p. 271 (C. Rossiter ed. 1961) (J. Madison) (describing the Bankruptcy Clause and the Commerce Clause as “intimately connected”); cf., ante, at 105 (Scalia, J., concurring in judgment).

For the reasons stated, I respectfully dissent.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

While I join Justice Marshall’s dissenting opinion, I think it is appropriate to explain why the legislative history of 11 U. S. C. § 106 lends added support to his reading of the statute.

The drafters of the Bankruptcy Code were well aware of the value to the bankruptcy administration process of a waiver of federal and state sovereign immunity. In 1973, five years before the Code was enacted, the Commission on the Bankruptcy Laws of the United States proposed a broad waiver of sovereign immunity under which every provision of the proposed bankruptcy bill would apply to the States. That provision was not enacted into law apparently because of concerns that Congress did not have the constitutional power to abrogate completely the States’ sovereign immunity. See H. R. Rep. No. 95-595, p. 317 (1977); S. Rep. No. 95-989, p. 29 (1978). Instead, the initial legislation drafted by Congress limited the waiver of sovereign immunity to compulsory counterclaims and offsets, the provisions that now appear in §§ 106(a) and 106(b). Section 106(c), added after the bill that became the Bankruptcy Code was reported by the Senate and House Committees, restored to a large extent the power of the bankruptcy courts over States that had first been proposed in 1973. Whereas the waiver contained in the Commission on the Bankruptcy Laws’ proposal would have subjected the States to suit under every provision of the Code, the application of § 106(c) was limited to those Code provisions containing the statutory trigger words. The House and Senate sponsors explained in floor statements:

“The provision is included to comply with the requirement in case law that an express waiver of sovereign immunity is required in order to be effective. Section 106(c) codifies in re Gwilliam, 519 F.2d 407 (9th Cir., 1975), and in re Dolard, 519 F.2d 282 (9th Cir., 1975), .permitting the bankruptcy court to determine the amount and dischargeability of tax liabilities owing by the debtor or the estate prior to or during a bankruptcy case whether or not the governmental unit to which such taxes are owed files a proof of claim. . . . [Sjubsection (c) is not limited to those issues, but permits the bankruptcy court to bind governmental units on other matters as well. For example, section 106(c) permits a trustee or debtor in possession to assert avoiding powers under title 11 against a governmental unit; contrary language in the House report to H.R. 8200 is thereby overruled.” 124 Cong. Rec. 32394 (1978) (statement of Rep. Edwards); id., at 33993 (statement of Sen. DeConcini).

The sponsors later added:

“Section 547(b)(2) of the House amendment adopts a provision contained in the House bill and rejects an alternative contained in the Senate amendment relating to the avoidance of a preferential transfer that is payment of a tax claim owing to a governmental unit. As provided, section 106(c) of the House amendment overrules contrary language in the House report with the result that the Government is subject to avoidance of preferential transfers.” Id., at 32400 (statement of Rep. Edwards); id., at 34000 (statement of Sen. DeConcini).

Although the primary object of § 106(c) was to provide the bankruptcy court with authority to determine the amount and dischargeability of tax liabilities even if a claim has not been filed, the legislative history thus indicates that the provision was also intended to cover “other matters as well,” including specifically the avoidance of preferential transfers. There was no suggestion that this authority did not include the power to order the return of real property and the payment of money damages or that the issues that the bankruptcy court could determine under § 106(c) were limited to whether prospective or declaratory relief was appropriate.

The fact that paragraph (c) was added to the bill after paragraphs (a) and (b) had been reported out of Committee also explains why those paragraphs were not rewritten to eliminate any possible redundancy in the section. Given this history it is apparent that the initial phrase in paragraph (c) (“[ejxcept as provided in subsections (a) and (b)”) constituted a declaration that the new subsection provided an additional mechanism by which the bankruptcy courts could bind States and did not derogate from the power granted under the other two subsections.

There is no question that § 106(c) effects a waiver of sovereign immunity. The statute, which applies to the Federal Government, the States, and municipalities alike, see 11 U. S. C. § 101(21), states in the clearest possible terms that provisions of the Code using any of the trigger words apply to governmental units “notwithstanding any assertion of sovereign immunity,” and the legislative history supports that reading. It is well settled that when the Federal Government waives its sovereign immunity, the scope of that waiver is construed liberally to effect its remedial purposes. See Block v. Neal, 460 U. S. 289, 298 (1983); United States v. Yellow Cab Co., 340 U. S. 543, 554-555 (1951); Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 709 (1949) (Frankfurter, J., dissenting); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 59 (1944) (Frankfurter, J., dissenting); see also Finley v. United States, 490 U. S. 545, 578-580 (1989) (Stevens, J., dissenting). The same rule should be applied under this section when the defendant is a State, rathen-tlian the Federal Government or a municipality. Cf. Missouri v. Jenkins, 491 U. S. 274, 281-282 (1989) (whether Congress intended an enhancement of a reasonable attorney’s fee under § 1988 should not turn on whether the party against whom fee is awarded is a State). I would therefore hold that the determinations that a bankruptcy court may make under § 106(c) include a determination that a State must pay money damages under a Code provision containing one of the trigger words.

       Not surprisingly, most courts considering § 106(c) have concluded that it clearly allows a trustee to recover preferences from a State and to require a State to turn over money belonging to the debtor. See, e. g., WJM, Inc. v. Massachusetts Dept. of Public Welfare, 840 F. 2d 996, 1001 (CA1 1988); McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327 (CA7), cert. denied, 484 U. S. 895 (1987); Neavear v. Schweiker, 674 F. 2d 1201, 1202-1204 (CA7 1982); Rhode Island Ambulance Services, Inc. v. Begin, 92 B. R. 4, 6-7 (Bkrtcy. Ct., RI 1988); Tew v. Arizona State Retirement System, 78 B. R. 328, 329-331 (SD Fla. 1987); cf. Gingold v. United States, 80 B. R. 555, 561 (Bkrtcy. Ct., ND Ga. 1987); R & L Refunds v. United States, 45 B. R. 733, 735 (Bkrtcy. Ct.,WD Ky. 1985); Gower v. Farmers Home Administration, 20 B. R. 519, 521-522 (Bkrtcy. Ct., MD Ga. 1982); Remke, Inc. v. United States, 5 B. R. 299, 300-302 (Bkrtcy. Ct., ED Mich. 1980). A leading bankruptcy commentator also reads § 106(c) to abrogate state sovereign immunity. 2 Collier on Bankruptcy *1106.04 (15th ed. 1989).

       See, e. g., § 303(b)(1) (permitting three or more “entities” to file an involuntary case against a debtor); § 303(c) (giving “creditors” who do not file an involuntary case the same rights as those who do); § 303(j) (requiring notice to all “creditors” before a court may dismiss an involuntary case); § 341(a) (requiring a meeting of “creditors”); § 343 (permitting “creditors” to examine the debtor); § 349(b)(3) (revesting property in an “entity” if the petition is dismissed); § 361 (setting forth adequate protection for certain property interests of an “entity”); § 363(c)(2)(A) (preventing use, lease, or sale of cash collateral assets absent consent of an interested “entity”); §§ 501 and 502 (regulating filing of proofs of claims by “creditors”); § 506(a) (granting secured status to lien “creditors”); § 553 (granting rights of setoff to certain “creditors”); §§ 702(a) and 705 (giving qualified “creditors” the right to vote for the trustee and the creditors’ committee); §§ 507 and 726 (setting forth priorities of distribution to “creditors”); § 727(c) (giving a “creditor” the right to object to a discharge); § 1102 (providing for court appointed creditors’ committee); § 1109(b) (giving a “creditor” the right to be heard on any issue); § 1121(c) (providing that a “creditor” may file a reorganization plan).

       See, e. g., §365 (permitting the trustee to assume or reject executory contracts and unexpired leases in certain circumstances); § 505 (permitting the bankruptcy court to determine the debtor’s tax liability in certain circumstances); § 525 (protecting the debtor against government discrimination in licensing and employment); § 1141 (binding “creditors” to the terms of a confirmed reorganization plan and discharging all other claims); § 1142 (permitting the bankruptcy court to require performance of any act necessary to carry out a confirmed reorganization plan); § 1143 (preventing an “entity” that fails to perform a required act from participating in the distribution of estate assets).

       Several Code provisions that permit money judgments do not apply to States. For example, 11 U. S. C. § 362(h) (1982 ed., Supp. V) provides that an individual injured as a result of a willful violation of an automatic stay may recover actual damages and, where appropriate, punitive damages. Because § 362(h) contains no trigger words, it does not apply to States. See also Prime, Inc. v. Illinois Dept. of Transp., 44 B. R. 924, 925-927 (Bkrtcy. Ct., WD Mo. 1984); Gillman v. Board of Trustees of Alpine School Dist., 40 B. R. 781, 788-790 (Bkrtcy. Ct., Utah 1984).

       When Congress wanted to grant States special treatment, it specifically used the term “governmental unit.” See, e. g., § 101(35) (1982 ed., Supp. V) (defining the term “person” so that it does not generally include a “governmental unit”); § 346(f) (requiring the trustee to withhold State and local taxes from claims based on wages or salaries); §§ 362(b)(4) and (5) (exempting from the automatic stay provision actions of “governmental units” to enforce police or regulatory powers); § 362(b)(9) (1982 ed., Supp. V) (exempting from the automatic stay provision a “governmental unit’s” issuance of a notice of tax deficiency); § 507(a)(7) (1982 ed., Supp. V) (creating relatively high priority for certain taxes owed to “governmental units”); §§ 523(a)(1) and (7) (exempting from discharge certain taxes and fines payable to “governmental units”); § 523(a)(8) (exempting from discharge student loans guaranteed by “governmental units”); § 1129(d) (barring bankruptcy court from confirming a reorganization plan if the principal purpose of the plan is the avoidance of taxes).

       The plurality’s decision to exempt States from the preference provision is contrary to the understanding of the members of the Conference Committee who presented § 106(c) to Congress. See 124 Cong. Rec. 32394 (1978) (statement of Rep. Edwards) (§ 106(c) will cover situations in which “a trustee or debtor in possession . . . assert[s] avoiding powers under title 11 against a governmental unit”); id., at 33993 (statement of Sen. DeCon-cini) (same).

       The Bankruptcy Clause provides: “Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U. S. Const., Art. I, §8, cl. 4.


source: Caselaw Access Project

author: Justice White Justice Scalia, Justice Brennan,

license: Public Domain

text:
    SABLE COMMUNICATIONS OF CALIFORNIA, INC. v. FEDERAL COMMUNICATIONS COMMISSION et al.
    No. 88-515.
    Argued April 19, 1989
    Decided June 23, 1989

      White, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 131. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and Stevens, JJ., joined, post, p. 133.

      Richard G. Taranto argued the cause for appellees in No. 88-515 and for appellants in No. 88-525. With him on the briefs were Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Wallace, Barbara L. Herwig, Jacob M. Lewis, and Diane S. Killory.

      Lawrence H. Tribe argued the cause for appellant in No. 88-515 and for appellee in No. 88-525. With him on the brief were Brian Stuart Koukoutchos, Lawrence E. Abelman, Norman S. Beier, Richard K. Simon, and Lee L. Blackman.

      Together with No. 88-525, Federal Communications Commission et al. v. Sable Communications of California, Inc., also on appeal from the same court.

       Briefs of amici curiae were filed for Minority Members of the Committee on Energy and Commerce of the United States House of Representatives by John J. Adams; for Action for Children’s Television et al. by Timothy B. Dyk, Henry Getter, John A. Powell, C. Edwin Baker, Susan M. Liss, Jan G. Levine, Howard Monderer, Lois J. Schiffer, Karen Christensen, Andrew Jay Schwartzman, Paula A. Jameson, Nancy H. Hendry, J. Laurent Scharff, Jane E. Kirtley, Bruce W. Sanford, and Robert A. Beizer; for the American Family Association, Inc., by Peggy M. Coleman; for the Association of Interactive Information Providers by Earl Nicholas Selby and William Bennett Turner; for Citizens for Decency through Law, Inc., by Benjamin W. Butt; for Home Box Office, Inc., by Daniel M. Waggoner, Stuart R. Dunwoody, and Harold E. Akselrad; for the Pacifica Foundation by William J. Byrnes; for Morality in Media, Inc., by Paul J. McGeady; for the San Francisco AIDS Foundation by Leonard Graff; for the United States Catholic Conference by Mark E. Chopko; for John W. Olivo, Jr., by Robert T. Perry; and for Jane Roe et al. by Bruce J. Ennis.

   Justice White

delivered the opinion of the Court.

The issue before us is the constitutionality of § 223(b) of the Communications Act of 1934. 47 U. S. C. § 223(b) (1982 ed., Supp. V). The statute, as amended in 1988, imposes an outright ban on indecent as well as obscene interstate commercial telephone messages. The District Court upheld the prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. We affirm the District Court in both respects.

HH

In 1983, Sable Communications, Inc., a Los Angeles-based affiliate of Carlin Communications, Inc., began offering sexually oriented prerecorded telephone messages (popularly known as “dial-a-porn”) through the Pacific Bell telephone network. In order to provide the messages, Sable arranged with Pacific Bell to use special telephone lines, designed to handle large volumes of calls simultaneously. Those who called the adult message number were charged a special fee. The fee was collected by Pacific Bell and divided between the phone company and the message provider. Callers outside the Los Angeles metropolitan area could reach the number by means of a long-distance toll call to the Los Angeles area code.

In 1988, Sable brought suit in District Court seeking declaratory and injunctive relief against enforcement of the recently amended § 223(b). The 1988 amendments to the statute imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. Sable brought this action to enjoin the Federal Communications Commission (FCC) and the Justice Department from initiating any criminal investigation or prosecution, civil action or administrative proceeding under the statute. Sable also sought a declaratory judgment, challenging the indecency and the obscenity provisions of the amended § 223(b) as unconstitutional, chiefly under the First and Fourteenth Amendments to the Constitution.

The District Court found that a concrete controversy existed and that Sable met the irreparable injury requirement for issuance of a preliminary injunction under Elrod v. Burns, 427 U. S. 347, 373 (1976). 692 F. Supp. 1208, 1209 (CD Cal. 1988). The District Court denied Sable’s request for a preliminary injunction against enforcement of the statute’s ban on obscene telephone messages, rejecting the argument that the statute was unconstitutional because it created a national standard of obscenity. The District Court, however, struck down the “indecent speech” provision of § 223(b), holding that in this respect the statute was overbroad and unconstitutional and that this result was consistent with FCC v. Pacifica Foundation, 438 U. S. 726 (1978). “While the government unquestionably has a legitimate interest in, e. g., protecting children from exposure to indecent dial-a-porn messages, § 223(b) is not narrowly drawn to achieve any such purpose. Its flat-out ban of indecent speech is contrary to the First Amendment.” 692 F. Supp., at 1209. Therefore, the court issued a preliminary injunction prohibiting enforcement of § 223(b) with respect to any communication alleged to be “indecent.”

We noted probable jurisdiction on Sable’s appeal of the obscenity ruling (No. 88-515); we also noted probable jurisdiction on the federal parties’ cross-appeal of the preliminary injunction holding the statute unconstitutional with respect to its ban on indecent speech (No. 88-525). 488 U. S. 1003 (1989).

II

While dial-a-porn services are a creature of this decade, the medium, in its brief history, has been the subject of much litigation and the object of a series of attempts at regulation. The first litigation involving dial-a-porn was brought under 82 Stat. 112, 47 U. S. C. § 223, which proscribed knowingly “permitting a telephone under [one’s] control” to be used to make “any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent.” However, the FCC concluded in an administrative action that the existing law did not cover dial-a-porn. In re Application for Review of Complaint Filed by Peter F. Cohalan, FCC File No. E-83-14 (memorandum opinions and orders adopted May 13, 1983).

In reaction to that FCC determination, Congress made its first effort explicitly to address “dial-a-porn” when it added a subsection 223(b) to the 1934 Communications Act. The provision, which was the predecessor to the amendment at issue in this case, pertained directly to sexually oriented commercial telephone messages and sought to restrict the access of minors to dial-a-porn. The relevant provision of the Act, Federal Communications Commission Authorization Act of 1983, Pub. L. 98-214, §8(b), 97 Stat. 1470, made it a crime to use telephone facilities to make “obscene or indecent” interstate telephone communications “for commercial purposes to any person under eighteen years of age or to any other person without that person’s consent.” 47 U. S. C. §223(b)(1) (A) (1982 ed., Supp. V). The statute criminalized commercial transmission of sexually oriented communications to minors and required the FCC to promulgate regulations laying out the means by which dial-a-porn sponsors could screen out underaged callers. § 223(b)(2). The enactment provided that it would be a defense to prosecution that the defendant restricted access to adults only, in accordance with procedures established by the FCC. The statute did not criminalize sexually oriented messages to adults, whether the messages were obscene or indecent.

The FCC initially promulgated regulations that would have established a defense to message providers operating only between the hours of 9 p.m. and 8 a.m. eastern time (time channeling) and to providers requiring payment by credit card (screening) before transmission of the dial-a-porn message. Restrictions on Obscene or Indecent Telephone Message Services, 47 CFR §64.201 (1988). In Carlin Communications, Inc. v. FCC, 749 F. 2d 113 (1984) (Carlin I), the Court of Appeals for the Second Circuit set aside the time channeling regulations and remanded to the FCC to examine other alternatives, concluding that the operating hours requirement was “both overinclusive and underinclusive” because it denied “access to adults between certain hours, but not to youths who can easily pick up a private or public telephone and call dial-a-porn during the remaining hours.” Id., at 121. The Court of Appeals did not reach the constitutionality of the underlying legislation.

In 1985, the FCC promulgated new regulations which continued to permit credit card payment as a defense to prosecution. Instead of time restrictions, however, the Commission added a defense based on use of access codes (user identification codes). Thus, it would be a defense to prosecution under § 223(b) if the defendant, before transmission of the message, restricted customer access by requiring either payment by credit card or authorization by access or identification code. 50 Fed. Reg. 42699, 42705 (1985). The regulations required each dial-a-porn vendor to develop an identification code data base and implementation scheme. Callers would be required to provide an access number for identification (or a credit card) before receiving the message. The access code would be received through the mail after the message provider reviewed the application and concluded through a written age ascertainment procedure that the applicant was at least 18 years of age. The FCC rejected a proposal for “exchange blocking” which would block or screen telephone numbers at the customer’s premises or at the telephone company offices. In Carlin Communications, Inc. v. FCC, 787 F. 2d 846 (CA2 1986) (Carlin II), the Court of Appeals set aside the new regulations because of the FCC’s failure adequately to consider customer premises blocking. Again, the constitutionality of the underlying legislation was not addressed.

The FCC then promulgated a third set of regulations, which again rejected customer premises blocking but added to the prior defenses of credit card payment and access code use a third defense: message scrambling. 52 Fed. Reg. 17760 (1987). Under this system, providers would scramble the message, which would then be unintelligible without the use of a descrambler, the sale of which would be limited to adults. On January 15, 1988, in Carlin Communications, Inc. v. FCC, 837 F. 2d 546 (Carlin III), cert. denied, 488 U. S. 924 (1988), the Court of Appeals for the Second Circuit held that the new regulations, which made access codes, along with credit card payments and scrambled messages, defenses to prosecution under § 223(b) for dial-a-porn providers, were supported by the evidence, had been properly arrived at, and were a “feasible and effective way to serve” the “compelling state interest” in protecting minors, 837 F. 2d, at 555; but the Court directed the FCC to reopen proceedings if a less restrictive technology became available. The Court of Appeals, however, this time reaching the constitutionality of the statute, invalidated § 223(b) insofar as it sought to apply to nonobscene speech. Id., at 560, 561.

Thereafter, in April 1988, Congress amended § 223(b) of the Communications Act to prohibit indecent as well as obscene interstate commercial telephone communications directed to any person regardless of age. The amended statute, which took effect on July 1, 1988, also eliminated the requirement that the FCC promulgate regulations for restricting access to minors since a total ban was imposed on dial-a-porn, making it illegal for adults, as well as children, to have access to the sexually explicit messages, Pub. L. 100-297, 102 Stat. 424. It was this version of the statute that was in effect when Sable commenced this action.

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In the ruling at issue in No. 88-515, the District Court upheld § 223(b)’s prohibition of obscene telephone messages as constitutional. We agree with that judgment. In contrast to the prohibition on indecent communications, there is no constitutional barrier to the ban on obscene dial-a-porn recordings. We have repeatedly held that the protection of the First Amendment does not extend to obscene speech. See, e. g., Paris Adult Theatre I v. Slaton, 413 U. S. 49, 69 (1973). The cases before us today do not require us to decide what is obscene or what is indecent but rather to determine whether Congress is empowered to prohibit transmission of obscene telephonic communications.

In its facial challenge to the statute, Sable argues that the legislation creates an impermissible national standard of obscenity, and that it places message senders in a “double bind” by compelling them to tailor all their messages to the least tolerant community.

We do not read § 223(b) as contravening the “contemporary community standards” requirement of Miller v. California, 413 U. S. 15 (1973). Section 223(b) no more establishes a “national standard” of obscenity than do federal statutes prohibiting the mailing of obscene materials, 18 U. S. C. § 1461, see Hamling v. United States, 418 U. S. 87 (1974), or the broadcasting of obscene messages, 18 U. S. C. §1464. In United States v. Reidel, 402 U. S. 351 (1971), we said that Congress could prohibit the use of the mails for commercial distribution of materials properly classifiable as obscene, even though those materials weré being distributed to willing adults who stated that they were adults. Similarly, we hold today that there is no constitutional stricture against Congress’ prohibiting the interstate transmission of obscene commercial telephone recordings.

We stated in United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973), that the Miller standards, including the “contemporary community standards” formulation, apply to federal legislation. As we have said before, the fact that “distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity.” Hamling v. United States, supra, at 106.

Furthermore, Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve. While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages. Whether Sable chooses to hire operators to determine the source of the calls or engages with the telephone company to arrange for the screening and blocking of out-of-area calls or finds another means for providing messages compatible with community standards is a decision for the message provider to make. There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sable’s audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages.

IV

In No. 88-525, the District Court concluded that while the Government has a legitimate interest in protecting children from exposure to indecent dial-a-porn messages, § 223(b) was not sufficiently narrowly drawn to serve that purpose and thus violated the First Amendment. We agree.

Sexual expression which is indecent but not obscene is protected by the First Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. 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. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); New York v. Ferber, 458 U. S. 747, 756-757 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor ofOradell, 425 U. S., at 620; First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978).” Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 637 (1980). It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.

In Butler v. Michigan, 352 U. S. 380 (1957), a unanimous Court reversed a conviction under a statute which made it an offense to make available to the general public materials found to have a potentially harmful influence on minors. The Court found the law to be insufficiently tailored since it denied adults their free speech rights by allowing them to read only what was acceptable for children. As Justice Frankfurter said in that case, “[s]urely this is to bum the house to roast the pig.” Id., at 383. In our judgment, this case, like Butler, presents us with “legislation not reasonably restricted to the evil with which it is said to deal.” Ibid.

In attempting to justify the complete ban and criminalization of the indecent commercial telephone communications with adults as well as minors, the federal parties rely on FCC v. Pacifica Foundation, 438 U. S. 726 (1978), a case in which the Court considered whether the FCC has the power to regulate a radio broadcast that is indecent but not obscene. In an emphatically narrow holding, the Pacifica Court concluded that special treatment of indecent broadcasting was justified.

Pacifica is readily distinguishable from these cases, most obviously because it did not involve a total ban on broadcasting indecent material. The FCC rule was not “ ‘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, supra, at 733, quoting Pacifica Foundation, 59 F. C. C. 2d 892 (1976). The issue of a total ban was not before the Court. 438 U. S., at 750, n. 28.

The Pacifica opinion also relied on the “unique” attributes of broadcasting, noting that broadcasting is “uniquely pervasive,” can intrude on the privacy of the home without prior warning as to program content, and is “uniquely accessible to children, even those too young to read.” Id., at 748-749. The private, commercial telephone communications at issue here are substantially different from the public radio broadcast at issue in Pacifica. In contrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it medium requires the listener to take affirmative steps to receive the communication. There is no “captive audience” problem here; callers will generally not be unwilling listeners. The context of dial-in services, where a caller seeks and is willing to pay for the communication, is manifestly different from a situation in which a listener does not want the received message. Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message. Unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it.

The Court in Pacifica was careful “to emphasize the narrowness of [its] holding.” Id., at 750. As we did in Bolger v. Youngs Drug Products Corp., 463 U. S. 60 (1983), we distinguish Pacifica from the cases before us and reiterate that “the government may not ‘reduce the adult population ... to . . . only what is fit for children.’” 463 U. S., at 73, quoting Butler v. Michigan, supra, at 383.

The federal parties nevertheless argue that the total ban on indecent commercial telephone communications is justified because nothing less could prevent children from gaining access to such messages. We find the argument quite unpersuasive. The FCC, after lengthy proceedings, determined that its credit card, access code, and scrambling rules were a satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors. The Court of Appeals, after careful consideration, agreed that these rules represented a “feasible and effective” way to serve the Government’s compelling interest in protecting children. 837 F. 2d, at 555.

The federal parties now insist that the rules would not be effective enough — that enterprising youngsters could and would evade the rules and gain access to communications from which they should be shielded. There is no evidence in the record before us to that effect, nor could there be since the FCC’s implementation of § 223(b) prior to its 1988 amendment has never been tested over time. In this respect, the federal parties assert that in amending § 223(b) in 1988, Congress expressed its view that there was not a sufficiently effective way to protect minors short of the total ban that it enacted. The federal parties claim that we must give deference to that judgment.

To the extent that the federal parties suggest that we should defer to Congress’ conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment. “Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.” Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 843 (1978). The federal parties, however, also urge us to defer to the factual findings by Congress relevant to resolving the constitutional issue; they rely on Walters v. National Association of Radiation Survivors, 473 U. S. 305, 331, n. 12 (1985), and Rostker v. Goldberg, 453 U. S. 57, 72-73 (1981). Beyond the fact that whatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law, our answer is that the congressional record contains no legislative findings that would justify us in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban, to achieve the Government’s interest in protecting minors.

There is no doubt Congress enacted a total ban on both obscene and indecent telephone communications. But aside from conclusory statements during the debates by proponents of the bill, as well as similar assertions in hearings on a substantially identical bill the year before, H. R. 1786, that under the FCC regulations minors could still have access to dial-a-porn messages, the congressional record presented to us contains no evidence as to how effective or ineffective the FCC’s most recent regulations were or might prove to be. It may well be that there is no fail-safe method of guaranteeing that never will a minor be able to access the dial-a-porn system. The bill that was enacted, however, was introduced on the floor; nor was there a committee report on the bill from which the language of the enacted bill was taken. No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages. On the other hand, in the hearings on H. R. 1786, the Committee heard testimony from the FCC and other witnesses that the FCC rules would be effective and should be tried out in practice. Furthermore, at the conclusion of the hearing, the Chairman of the Subcommittee suggested consultation looking toward “drafting a piece of legislation that will pass constitutional muster, while at the same time providing for the practical relief which families and groups are looking for.” Hearings, at 235. The bill never emerged from Committee.

For all we know from this record, the FCC’s technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case, it seems to us that § 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages. Under our precedents, § 223(b), in its present form, has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear. It is another case of “burn[ing] the house to roast the pig.” Butler v. Michigan, 352 U. S., at 383.

Because the statute’s denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages, we hold that the ban does not survive constitutional scrutiny.

Accordingly, we affirm the judgment of the District Court in Nos. 88-515 and 88-525.

It is so ordered.

Justice Scalia,

concurring.

I join the opinion of the Court, but add a few words. It should not be missed that we are making a value judgment with respect to the indecency portion of the statute. The conclusion of the reasoning in Part IV of our opinion is as follows:

“For all we know from this record, the FCC’s technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case, it seems to us that § 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages.” Ante, at 130-131. .

We could as well have said:

“We know from this record that the FCC’s technological approach to restricting dial-a-porn messages to adults who seek them would be inadequate, since some enterprising and disobedient young people would manage to secure access to such messages. Since this is the case, it seems to us that § 223(b) is a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages.”

I join the Court’s opinion because I think it correct that a wholesale prohibition upon adult access to indecent speech cannot be adopted merely because the FCC’s alternate proposal could be circumvented by as few children as the evidence suggests. But where a reasonable person draws the line in this balancing process —that is, how few children render the risk unacceptable — depends in part upon what mere “indecency” (as opposed to “obscenity”) includes. The 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. So while the Court is unanimous on the reasoning of Part IV, I am not sure it is unanimous on the assumptions underlying that reasoning. I do not believe, for example, that any sort of sexual activity portrayed or enacted over the phone lines would fall outside of the obscenity portion of the statute that we uphold, and within the indecency portion that we strike down, so long as it appeals only to “normal, healthy sexual desires” as opposed to “shameful or morbid” ones. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 498 (1985).

In joining Part IV, I do so with the understanding that its examination of the legislative history (ante, at 129-130) is merely meant to establish that no more there than anywhere else can data be found demonstrating the infeasibility of alternative means to provide (given the nature of this material) adequate protection of minors. I do not understand the Court to suggest that such data must have been before Congress in order for the law to be valid. Even though “[n]o Congressman or Senator purported to present a considered judgment” on infeasibility, ante, at 130, the law would be valid if infeasibility was true. Neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote.

Finally, I note that while we hold the Constitution prevents Congress from banning indecent speech in this fashion, we do not hold that the Constitution requires public utilities to carry it.

Justice Brennan,

with whom Justice Marshall and Justice Stevens join, concurring in part and dissenting in part.

I agree that a statute imposing criminal penalties for making, or for allowing others to use a telephone under one’s control to make, any indecent telephonic communication for a commercial purpose is patently unconstitutional. I therefore join Parts I, II, and IV of the Court’s opinion.

In my view, however, 47 U. S. C. § 223(b)(l)(A)’s parallel criminal prohibition with regard to obscene commercial communications likewise violates the First Amendment. I have long been convinced that the exaction of criminal penalties for the distribution of obscene materials to consenting adults is constitutionally intolerable. In my judgment, “the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 103 (1973) (Brennan, J., dissenting). To be sure, the Government has a strong interest in protecting children against exposure to pornographic material that might be harmful to them. New York v. Ferber, 458 U. S. 747, 775-777 (1982) (Brennan, J., concurring in judgment); Ginsberg v. New York, 390 U. S. 629 (1968). But a complete criminal ban on obscene telephonic messages for profit is “unconstitutionally overbroad, and therefore invalid on its face,” as a means for achieving this end. Miller v. California, 413 U. S. 15, 47 (1973) (Brennan, J., dissenting).

The very evidence the Court adduces to show that denying adults access to all indecent commercial messages “far exceeds that which is necessary to limit the access of minors to such messages,” ante, at 131, also demonstrates that forbidding the transmission of all obscene messages is unduly heavyhanded. After painstaking scrutiny, both the FCC and the Second Circuit found that “a scheme involving access codes, scrambling, and credit card payment is a feasible and effective way to serve this compelling state interest” in safeguarding children. Carlin Communications, Inc. v. FCC, 837 F. 2d 546, 555, cert. denied, 488 U. S. 924 (1988). And during the 1987 hearings on H. R. 1786, a United States attorney speaking on behalf of the Justice Department described the FCC’s proposed regulations as “very effective,” because they would “dramatically reduc[e] the number of calls from minors in the United States, almost eliminating them.” Telephone Decency Act of 1987: Hearings on H. R. 1786 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th Cong., 1st Sess., 231 (1987). In addition, as the Court notes, ante, at 129-130, no contrary evidence was before Congress when it voted to impose a total prohibition on obscene telephonic messages for profit. Hence, the federal parties cannot plausibly claim that their legitimate interest in protecting children warrants this Draconian restriction on the First Amendment rights of adults who seek to hear the messages that Sable and others provide.

Section 223(b)(1)(A) unambiguously proscribes all obscene commercial messages, and thus admits of no construction that would render it constitutionally permissible. Because this criminal statute curtails freedom of speech far more radically than the Government’s interest in preventing harm to minors could possibly license on the record before us, I would reverse the District Court’s decision in No. 88-515 and strike down the statute on its face. Accordingly, I dissent from Part III of the Court’s opinion.

       A typical prerecorded message lasts anywhere from 30 seconds to two minutes and may be called by up to 50,000 people hourly through a single telephone number. Comment, Telephones, Sex, and the First Amendment, 33 UCLA L. Rev. 1221, 1223 (1986).

       Sable appealed the District Court ruling to the Court of Appeals for the Ninth Circuit, concurrently filing an emergency motion for an injunction pending appeal. The District Court entered an order temporarily enjoining the FCC from enforcing the statute during the pendency of the appeal. After the federal parties filed their notice of appeal to this Court from the District Court’s grant of the preliminary injunction as to “indecent” communication, the Court of Appeals for the Ninth Circuit entered an order directing Sable either to file a motion for voluntary dismissal or to show cause why the appeal should not be dismissed for lack of jurisdiction. Sable filed an ex parte application to this Court for an injunction pending appeal, as well as a return on the Court of Appeals’ order to show cause. The Court of Appeals entered an order dismissing the appeal since the filing of a direct appeal by the FCC had the effect of transferring Sable’s appeal to this Court.

       Dial-a-porn is big business. The dial-a-porn service in New York City alone received six to seven million calls a month for the 6-month period ending in April 1985. Carlin Communications, Inc. v. FCC, 787 F. 2d 846, 848 (CA2 1986).

       “‘(b)(1) Whoever knowingly—
      “(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene or indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
      “(B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A),
      “shall be fined not more than $50,000 or imprisoned not more than six months, or both.”

       After Sable and the federal parties filed their jurisdictional statements with this Court, but before we noted probable jurisdiction, § 223(b) was again revised by Congress in § 7524 of the Child Protection and Obscenity Enforcement Act of 1988, § 7524, 102 Stat. 4502, which was enacted as Title VII, Subtitle N, of the Anti-Drug Abuse Act of 1988, Pub. L. 100-690 (codified at 47 U. S. C. § 223(b) (1988 ed.)). This most recent legislation, signed into law on November 18, 1988, places the prohibition against obscene commercial telephone messages in a subsection separate from that containing the prohibition against indecent messages. In addition, under the new law, the prohibition against obscene or indecent telephone messages is enforceable only through criminal penalties and no longer through administrative proceedings by the FCC.
      Section 223(b) of the Communications Act of 1934, as amended by § 7524 of the Child Protection and Obscenity Enforcement Act of 1988, states in pertinent part:
      “(b)(1) Whoever knowingly—
      “(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
      “(B) permits any telephone facility under such person’s control to be used for an activity prohibited by clause (i),
      “shall be fined in accordance with title 18 of the United States Code, or imprisoned not more than two years, or both.
      “(2) Whoever knowingly—
      “(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
      “(B) permits any telephone facility under such person’s control to be used for an activity prohibited by clause (i),
      “shall be fined not more than $50,000 or imprisoned not more than six months, or both.” 102 Stat. 4502.
      Since the substantive prohibitions under this amendment remain the same, this case is not moot.

       In its jurisdictional statement, Sable also argued that the prohibition on obscene calls is not severable from the ban on indecent messages. This last claim was not renewed in Sable’s brief on the merits, presumably as a result of the subsequent modification of the statute in which Congress specifically placed the ban on obscene commercial telephone messages in a subsection separate from the prohibition against indecent messages. Thus, the severability question is no longer before us.

       See e. g., 134 Cong. Rec. 7331 (1988) (statement of Rep. Bliley); id., at 7336 (statement of Rep. Coats); id., at 7330 (statement of Rep. Hall; id., at 7599 (statement of Sen. Hatch).

       Telephone Decency Act of 1987: Hearing on H. R. 1786 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th Cong., 1st Sess., 2, 15 (1987) (Rep. Bliley) (Hearings); id,., at 18 (Rep. Coats); id., at 20 (Rep. Tauke).
      These hearings were held while Carlin III was pending before the Court of Appeals for the Second Circuit.

       See, e. g., Hearings, at 129, 130, 132-133, 195-196, 198-200, 230-231.

       In the Hearings on H. R. 1786, id., at 231-232, the following colloquy occurred between Congressman Nielson and Mr. Ward, a United States Attorney interested in § 223(b) prosecutions:

        “Mr. NIELSON. Let me ask the question I asked the previous panel. Do any of the current alternatives by the FCC — that is the access codes, the credit cards, or the scrambling — do any of those provide a foolproof way of limiting dial-a-porn access to adults only? Either of you.
      “Mr. WARD. I think that — it’s not foolproof, but I think the access code requirement and the screening option, both provide the means of dramatically reducing the number of calls from minors in the United States, almost eliminating them. So I think that it would be a very effective way to do it.
      “Mr. NIELSON. But not foolproof?
      “Mr. WARD. Not absolutely foolproof.”