OCTOBER TERM, 1993
Syllabus
TURNER BROADCASTING SYSTEM, INC., ET AL.
v. FEDERAL
COMMUNICATIONS COMMISSION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 93-44. Argued January 12, 1994-Decided June 27,1994
Concerned that a competitive imbalance between cable television
and over-the-air broadcasters was endangering the broadcasters'
ability to compete for a viewing audience and thus for necessary
operating revenues, Congress passed the Cable Television Consumer
Protection and Competition Act of 1992. Sections 4 and 5 of the Act
require cable television systems to devote a specified portion of
their channels to the transmission of local commercial and public
broadcast stations. Soon after the Act became law, appellants,
numerous cable programmers and operators, challenged the
constitutionality of the must-carry provisions. The District Court
granted the United States and intervenordefendants summary
judgment, ruling that the provisions are consistent with the First
Amendment. The court rejected appellants' argument that the
provisions warrant strict scrutiny as a content-based regulation
and sustained them under the intermediate standard of scrutiny set
forth in
United States v.
O'Brien, 391 U. S. 367, concluding
that they are sufficiently tailored to serve the important
governmental interest in the preservation of local
broadcasting.
Held: The judgment is vacated, and the case is remanded.
819 F. Supp. 32, vacated and remanded.
JUSTICE KENNEDY delivered the opinion of the Court with respect
to Parts I, II, and III -A, concluding that the appropriate
standard by which to evaluate the constitutionality of the
must-carry provisions is the intermediate level of scrutiny
applicable to content-neutral restrictions that impose an
incidental burden on speech. Pp. 636-664.
(a) Because the must-carry provisions impose special obligations
upon cable operators and special burdens upon cable programmers,
heightened First Amendment scrutiny is demanded. The less rigorous
standard of scrutiny now reserved for broadcast regulation, see
Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367, should not
be extended to cable regulation, since the rationale for such
review-the dual problems of spectrum scarcity and signal
interference-does not apply in the context of cable. Nor is the
mere assertion of dysfunction or failure in the cable market,
without more, sufficient to shield a speech regulation from the
First Amendment standards applicable to nonbroadcast media.
623
Moreover, while enforcement of a generally applicable law
against members of the press may sometimes warrant only
rational-basis scrutiny, laws that single out the press for special
treatment pose a particular danger of abuse by the State and are
always subject to some degree of heightened scrutiny. Pp.
636-641.
(b) The must-carry rules are content neutral, and thus are not
subject to strict scrutiny. They are neutral on their face because
they distinguish between speakers in the television programming
market based only upon the manner in which programmers transmit
their messages to viewers, not the messages they carry. The
purposes underlying the must-carry rules are also unrelated to
content. Congress' overriding objective was not to favor
programming of a particular content, but rather to preserve access
to free television programming for the 40 percent of Americans
without cable. The challenged provisions' design and operation
confirm this purpose. Congress' acknowledgment that broadcast
television stations make a valuable contribution to the Nation's
communications structure does not indicate that Congress regarded
broadcast programming to be more valuable than cable programming;
rather, it reflects only the recognition that the services provided
by broadcast television have some intrinsic value and are worth
preserving against the threats posed by cable. It is also incorrect
to suggest that Congress enacted must-carry in an effort to
exercise content control over what subscribers view on cable
television, given the minimal extent to which the Federal
Communications Commission and Congress influence the programming
offered by broadcast stations. Pp. 641-652.
(c) None of appellants' additional arguments suffices to require
strict scrutiny in this case. The provisions do not intrude on the
editorial control of cable operators. They are content neutral in
application, and they do not force cable operators to alter their
own messages to respond to the broadcast programming they must
carry. In addition, the physical connection between the television
set and the cable network gives cable operators bottleneck, or
gatekeeper, control over most programming delivered into
subscribers' homes.
Miami Herald Publishing Go. v.
Tornillo, 418
U. S. 241, and
Pacific Gas &
Elec. Go. v.
Public Util. Gomm'n of Gal., 475 U. S. 1, distinguished.
Strict scrutiny is also not triggered by Congress' preference for
broadcasters over cable operators, since it is based not on the
content of the programming each group offers, but on the belief
that broadcast television is in economic peril. Nor is such
scrutiny warranted by the fact that the provisions single out
certain members of the press-here, cable operators-for disfavored
treatment. Such differential treatment is justified by the special
characteristics of the cable medium-namely, the cable operators'
bottleneck
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monopoly and the dangers this power poses to the viability of
broadcast television-and because the must-carry provisions are not
structured in a manner that carries the inherent risk of
undermining First Amendment interests.
Arkansas Writers'
Project, Inc. v.
Ragland, 481 U. S. 221, and
Minneapolis Star &
Tribune Co. v.
Minnesota
Comm'r of Revenue, 460 U. S. 575,
distinguished. Pp. 653-661.
(d) Under
O'Brien, a content-neutral regulation will be
sustained if it furthers an important governmental interest that is
unrelated to the suppression of free expression and the incidental
restriction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest. Viewed in the
abstract, each of the governmental interests asserted-preserving
the benefits of free, over-the-air local broadcast stations,
promoting the widespread dissemination of information from a
multiplicity of sources, and promoting fair competition in the
market for television programming-is important. Pp. 661-664.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN,
and JUSTICE SOUTER, concluded in Part III-B that the fact that the
asserted interests are important in the abstract does not mean that
the must-carry provisions will in fact advance those interests. The
Government 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. Thus, the Government must
adequately show that the economic health of local broadcasting is
in genuine jeopardy and in need of the protections afforded by
must-carry. Assuming an affirmative answer, the Government still
bears the burden of showing that the remedy adopted does not burden
substantially more speech than is necessary to further such
interests. On the state of the record developed, and in the absence
of findings of fact from the District Court, it is not possible to
conclude that the Government has satisfied either inquiry. Because
there are genuine issues of material fact still to be resolved on
this record, the District Court erred in granting summary judgment
for the Government. Pp. 664-668.
JUSTICE STEVENS, though favoring affirmance, concurred in the
judgment because otherwise no disposition of the case would be
supported by five Justices and because he is in substantial
agreement with JUSTICE KENNEDY'S analysis of this case. P. 674.
KENNEDY, J., announced the judgment of the Court and delivered
the opinion for a unanimous Court with respect to Part I, the
opinion of the Court with respect to Parts II-A and II-B, in which
REHNQUIST, C. J., and BLACKMUN, O'CONNOR, SCALIA, SOUTER, THOMAS,
and GINSBURG, JJ., joined, the opinion of the Court with respect to
Parts II -C, II -D, and III-A, in which REHNQUIST, C. J., and
BLACKMUN, STEVENS, and SOUTER,
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JJ., joined, and an opinion with respect to Part III-B, in which
REHNQUIST, C. J., and BLACKMUN and SOUTER, JJ., joined. BLACKMUN,
J., filed a concurring opinion,
post, p. 669. STEVENS, J.,
filed an opinion concurring in part and concurring in the judgment,
post, p. 669. O'CONNOR, J., filed an opinion concurring in
part and dissenting in part, in which SCALIA and GINSBURG, JJ.,
joined, and in Parts I and III of which THOMAS, J., joined,
post, p. 674. GINSBURG, J., filed an opinion concurring in
part and dissenting in part,
post, p. 685.
H. Bartow Farr III argued the cause for appellants.
With him on the briefs for appellant National Cable Television
Association, Inc., were
Joel 1.
Klein and
Richard G.
Taranto. Bruce D. Sokler, Peter Kimm, Jr.,
Gregory A. Lewis, Mary Ann Zimmer, Christopher Fager, Bruce D.
Collins, and
Neal S.
Grabell filed a brief for
appellants Turner Broadcasting System, Inc., et al.
John P.
Cole, Jr., and
Kenneth Farabee filed a brief for
appellant Daniels Cablevision, Inc.
Albert G.
Lauber,
Jr., Peter Van N.
Lockwood, Dorothy L. Foley, Judith A.
McHale, and
Barbara S.
Wellbery filed a brief for
appellants Discovery Communications, Inc., et al.
Robert D.
Joffe, Stuart W Gold, Edward J.
Weiss, Brian Conboy, and
Theodore Case Whitehouse filed a brief for appellant Time
Warner Entertainment Co.
Solicitor General Days argued the cause for
appellees.
With him on the brief for the federal appellees were Assistant
Attorney General Hunger, Deputy Solicitor General Wallace,
Christopher J. Wright, Douglas N. Letter, Bruce G. Forrest, and
Jonathan R. Siegel. Mark H. Lynch, Richard W Buchanan, Marilyn
Mohrman-Gillis, Paula A. Jameson, and Nancy Howell Hendry filed a
brief for appellees Association of America's Public Television
Stations et al. Rex E. Lee, Carter G. Phillips, Robert A. Beizer,
Mark D. Hopson, and James J. Popham filed a brief for appellee
Association of Independent Television Stations, Inc. Angela J.
Campbell, Elliot M. Mincberg, Andrew Jay Schwartzman, and Gigi B.
Sohn filed a brief for appellees Consumer Federation of America et
al. Bruce J. Ennis, Jr., David W Ogden, Donald B. Verrilli, Jr.,
Ann M. Kappler, Nory
626
Miller, Benjamin F. P. Ivins, Jack N.
Goodman, and
Kathleen M. Sullivan filed a brief for appellee National
Association of Broadcasters. *
JUSTICE KENNEDY announced the judgment of the Court and
delivered the opinion of the Court, except as to Part Ill-B.
Sections 4 and 5 of the Cable Television Consumer Protection and
Competition Act of 1992 require cable television systems to devote
a portion of their channels to the transmission of local broadcast
television stations. This case presents the question whether these
provisions abridge the freedom of speech or of the press, in
violation of the First Amendment.
The United States District Court for the District of Columbia
granted summary judgment for the United States,
*Briefs of amici curiae urging reversal were filed for the
Courtroom Television Network by Floyd Abrams; for the Media
Institute by Sol Schildhause; for the New Inspirational Network by
James S. Blitz; and for the United States Telephone Association et
al. by Laurence H. Tribe, Jonathan S. Massey, Michael W McConnell,
Kenneth S. Geller, Kenneth W Starr, Paul T. Cappuccio, Michael K.
Kellogg, Mark L. Evans, James R. Young, John Thorne, Robert A.
Levetown, Gerald E. Murray, Liam S. Coonan, Thomas P. Hester,
Walter H. Alford, William B. Barfield, and Richard W Odgers.
Briefs of
amici curiae urging affirmance were filed for
the State of Connecticut by
Richard Blumenthal, Attorney
General,
William B. Gundling, Associate Attorney General,
and
Phillip Rosario, Assistant Attorney General; for the
City of Los Angeles et al. by
Larrine S.
Holbrooke,
Teresa D. Baer, James K. Hahn, and
Edward J.
Perez; for the National Association of Telecommunications
Officers and Advisors et al. by
Robert Alan Garrett and
David Frohlich; and for Telemundo Group, Inc., by
William S.
Reyner, Jr., and
Marvin J.
Diamond.
Briefs of
amici curiae were filed for the American Civil
Liberties Union by
Burt Neuborne, Steven R. Shapiro, Marjorie
Heins, and
Arthur N Eisenberg; for the California Cable
Television Association by
Frank W Lloyd III; for the
Citizens for a Sound Economy Foundation by
Mark R. Paoletta;
and for DirecTv, Inc., et al. by
Lawrence R. Sidman and
John B. Richards.
627
holding that the challenged provisions are consistent with the
First Amendment. Because issues of material fact remain unresolved
in the record as developed thus far, we vacate the District Court's
judgment and remand the case for further proceedings.
I A
The role of cable television in the Nation's communications
system has undergone dramatic change over the past 45 years. Given
the pace of technological advancement and the increasing
convergence between cable and other electronic media, the cable
industry today stands at the center of an ongoing
telecommunications revolution with still undefined potential to
affect the way we communicate and develop our intellectual
resources.
The earliest cable systems were built in the late 1940's to
bring clear broadcast television signals to remote or mountainous
communities. The purpose was not to replace broadcast television
but to enhance it. See
United States v.
Southwestern
Cable Co., 392 U.
S. 157, 161-164 (1968); D. Brenner, M. Price, & M.
Meyerson, Cable Television and Other Nonbroadcast Video § 1.02
(1992); M. Hamburg, All About Cable, ch. 1 (1979). Modern cable
systems do much more than enhance the reception of nearby broadcast
television stations. With the capacity to carry dozens of channels
and import distant programming signals via satellite or microwave
relay, today's cable systems are in direct competition with
over-the-air broadcasters as an independent source of television
programming.
Broadcast and cable television are distinguished by the
different technologies through which they reach viewers. Broadcast
stations radiate electromagnetic signals from a central
transmitting antenna. These signals can be captured, in turn, by
any television set within the antenna's range. Cable systems, by
contrast, rely upon a physical, point-to-
628
point connection between a transmission facility and the
television sets of individual subscribers. Cable systems make this
connection much like telephone companies, using cable or optical
fibers strung aboveground or buried in ducts to reach the homes or
businesses of subscribers. The construction of this physical
infrastructure entails the use of public rights-of-way and
easements and often results in the disruption of traffic on streets
and other public property. As a result, the cable medium may depend
for its very existence upon express permission from local governing
authorities. See generally
Community Communications Co. v.
Boulder, 660 F.2d
1370, 1377-1378 (CAlO 1981).
Cable technology affords two principal benefits over broadcast.
First, it eliminates the signal interference sometimes encountered
in over-the-air broadcasting and thus gives viewers undistorted
reception of broadcast stations. Second, it is capable of
transmitting many more channels than are available through
broadcasting, giving subscribers access to far greater programming
variety. More than half of the cable systems in operation today
have a capacity to carry between 30 and 53 channels. Television and
Cable Factbook, Services Vol. No. 62, p. 1-69 (1994). And about 40
percent of cable subscribers are served by systems with a capacity
of more than 53 channels.
Ibid. Newer systems can carry
hundreds of channels, and many older systems are being upgraded
with fiber optic rebuilds and digital compression technology to
increase channel capacity. See,
e. g., Cablevision Systems
Adds to Rapid Fiber Growth in Cable Systems, Communications Daily
6-7 (Feb. 26, 1993).
The cable television industry includes both cable operators
(those who own the physical cable network and transmit the cable
signal to the viewer) and cable programmers (those who produce
television programs and sell or license them to cable operators).
In some cases, cable operators have acquired ownership of cable
programmers, and vice versa. Although cable operators may create
some of their own pro-
629
gramming, most of their programming is drawn from outside
sources. These outside sources include not only local or distant
broadcast stations, but also the many national and regional cable
programming networks that have emerged in recent years, such as
CNN, MTV, ESPN, TNT, C-SPAN, The Family Channel, Nickelodeon, Arts
and Entertainment, Black Entertainment Television, CourtTV; The
Discovery Channel, American Movie Classics, Comedy Central, The
Learning Channel, and The Weather Channel. Once the cable operator
has selected the programming sources, the cable system functions,
in essence, as a conduit for the speech of others, transmitting it
on a continuous and unedited basis to subscribers. See Brenner,
Cable Television and the Freedom of Expression, 1988 Duke L. J.
329, 339 ("For the most part, cable personnel do not review any of
the material provided by cable networks .... [C]able systems have
no conscious control over program services provided by
others").
In contrast to commercial broadcast stations, which transmit
signals at no charge to viewers and generate revenues by selling
time to advertisers, cable systems charge subscribers a monthly fee
for the right to receive cable programming and rely to a lesser
extent on advertising. In most instances, cable subscribers choose
the stations they will receive by selecting among various plans, or
"tiers," of cable service. In a typical offering, the basic tier
consists of local broadcast stations plus a number of cable
programming networks selected by the cable operator. For an
additional cost, subscribers can obtain channels devoted to
particular subjects or interests, such as recent-release feature
movies, sports, children's programming, sexually explicit
programming, and the like. Many cable systems also offer
pay-perview service, which allows an individual subscriber to order
and pay a one-time fee to see a single movie or program at a set
time of the day. See J. Goodale, All About Cable: Legal and
Business Aspects of Cable and Pay Television § 5.05[2] (1989);
Brenner,
supra, at 334, n. 22.
630
B
On October 5, 1992, Congress overrode a Presidential veto to
enact the Cable Television Consumer Protection and Competition Act
of 1992, Pub. L. 102-385, 106 Stat. 1460 (1992 Cable Act or Act).
Among other things, the Act subjects the cable industry to rate
regulation by the Federal Communications Commission (FCC) and by
municipal franchising authorities; prohibits municipalities from
awarding exclusive franchises to cable operators; imposes various
restrictions on cable programmers that are affiliated with cable
operators; and directs the FCC to develop and promulgate
regulations imposing minimum technical standards for cable
operators. At issue in this case is the constitutionality of the
so-called must-carry provisions, contained in §§4 and 5 of the Act,
which require cable operators to carry the signals of a specified
number of local broadcast television stations.
Section 4 requires carriage of "local commercial television
stations," defined to include all full power television
broadcasters, other than those qualifying as "noncommercial
educational" stations under § 5, that operate within the same
television market as the cable system. § 4, 47 U. S. C. §§
534(b)(1)(B), (h)(l)(A) (1988 ed., Supp. IV).l Cable systems with
more than 12 active channels, and more than 300 subscribers, are
required to set aside up to one-third of their channels for
commercial broadcast stations that request carriage. §
534(b)(1)(B). Cable systems with more than 300 subscribers, but
only 12 or fewer active channels, must
1 Although a cable system's local television market is defined
by regulation, see 47 CFR § 73.3555(d)(3)(i) (1993), the FCC is
authorized to make special market determinations upon request to
better effectuate the purposes of the Act. See 1992 Cable Act § 4,
47 U. S. C. § 534(h)(1)(C) (1988 ed., Supp. IV).
631
carry the signals of three commercial broadcast stations. §
534(b)(1)(A).2
If there are fewer broadcasters requesting carriage than slots
made available under the Act, the cable operator is obligated to
carry only those broadcasters who make the request. If, however,
there are more requesting broadcast stations than slots available,
the cable operator is permitted to choose which of these stations
it will carry. § 534(b)(2).3 The broadcast signals carried under
this provision must be transmitted on a continuous, uninterrupted
basis, § 534(b)(3), and must be placed in the same numerical
channel position as when broadcast over the air, § 534(b)(6).
Further, subject to a few exceptions, a cable operator may not
charge a fee for carrying broadcast signals in fulfillment of its
must-carry obligations. § 534(b)(lO).
Section 5 of the Act imposes similar requirements regarding the
carriage of local public broadcast television stations,
2 If there are not enough local full power commercial broadcast
stations to fill the one-third allotment, a cable system with up to
35 active channels must carry one qualified low power station and
an operator with more than 35 channels must carry two of them. See
§ 534(c)(1); see also § 534(h)(2) (defining "qualified low power
station"). Low power television stations are small broadcast
entities that transmit over a limited geographic range. They are
licensed on a secondary basis and are permitted to operate only if
they do not interfere with the signals of full power broadcast
stations.
3 Cable systems are not required to carry the signal of any
local commercial television station that "substantially duplicates"
the signal of any other broadcast station carried on the system. §
534(b)(5); see also
In re Implementation of the Cable Television
Consumer Protection and Competition Act of 1992 (Broadcast
Signal Carriage Issues), No. 92-259, Mar. 29, 1993, , 19 (defining
"substantial duplication" as a 50 percent overlap in programming).
Nor are they required to carry the signals of more than one station
affiliated with each national broadcast network. If the cable
operator does choose to carry broadcast stations with duplicative
programming, however, the system is credited with those stations
for purposes of its must-carry obligations. § 534(b)(5).
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referred to in the Act as local "noncommercial educational
television stations." 47 U. S. C. § 535(a) (1988 ed., Supp. IV).4 A
cable system with 12 or fewer channels must carry one of these
stations; a system of between 13 and 36 channels must carry between
one and three; and a system with more than 36 channels must carry
each local public broadcast station requesting carriage. §§
535(b)(2)(A), (b)(3)(A), (b)(3)(D). The Act requires a cable
operator to import distant signals in certain circumstances but
provides protection against substantial duplication of local
noncommercial educational stations. See §§ 535(b)(3)(B), (e). As
with commercial broadcast stations, § 5 requires cable system
operators to carry the program schedule of the public broadcast
station in its entirety and at its same over-the-air channel
position. §§ 535(g)(1), (g)(5).
Taken together, therefore, §§ 4 and 5 subject all but the
smallest cable systems nationwide to must-carry obligations, and
confer must-carry privileges on all full power broadcasters
operating within the same television market as a qualified cable
system.
C
Congress enacted the 1992 Cable Act after conducting three years
of hearings on the structure and operation of the cable television
industry. See S. Rep. No. 102-92, pp. 3-4 (1991) (describing
hearings); H. R. Rep. No. 102-628, p. 74 (1992) (same). The
conclusions Congress drew from its factfinding process are recited
in the text of the Act itself. See §§ 2(a)(1)-(21). In brief,
Congress found that the physical characteristics of cable
transmission, compounded by the in-
4 "Noncommercial educational television station[s]" are defined
to include broadcast stations that are either (1) licensed by the
FCC as a "noncommercial educational television broadcast station"
and have, as licensees, entities which are eligible to receive
grants from the Corporation for Public Broadcasting; or (2) owned
and operated by a municipality and transmit "predominantly
noncommercial programs for educational purposes." §§
535(l)(1)(A)-(B).
633
creasing concentration of economic power in the cable industry,
are endangering the ability of over-the-air broadcast television
stations to compete for a viewing audience and thus for necessary
operating revenues. Congress determined that regulation of the
market for video programming was necessary to correct this
competitive imbalance.
In particular, Congress found that over 60 percent of the
households with television sets subscribe to cable, § 2(a)(3), and
for these households cable has replaced over-the-air broadcast
television as the primary provider of video programming, §
2(a)(17). This is so, Congress found, because "[m]ost subscribers
to cable television systems do not or cannot maintain antennas to
receive broadcast television services, do not have input selector
switches to convert from a cable to antenna reception system, or
cannot otherwise receive broadcast television services."
Ibid. In addition, Congress concluded that due to "local
franchising requirements and the extraordinary expense of
constructing more than one cable television system to serve a
particular geographic area," the overwhelming majority of cable
operators exercise a monopoly over cable service. § 2(a)(2). "The
result," Congress determined, "is undue market power for the cable
operator as compared to that of consumers and video programmers."
Ibid.
According to Congress, this market position gives cable
operators the power and the incentive to harm broadcast
competitors. The power derives from the cable operator's ability,
as owner of the transmission facility, to "terminate the
retransmission of the broadcast signal, refuse to carry new
signals, or reposition a broadcast signal to a disadvantageous
channel position." § 2(a)(15). The incentive derives from the
economic reality that "[c]able television systems and broadcast
television stations increasingly compete for television advertising
revenues." § 2(a)(14). By refusing carriage of broadcasters'
signals, cable operators, as a practical matter, can reduce the
number of households that have
634
access to the broadcasters' programming, and thereby capture
advertising dollars that would otherwise go to broadcast stations.
§ 2(a)(15).
Congress found, in addition, that increased vertical integration
in the cable industry is making it even harder for broadcasters to
secure carriage on cable systems, because cable operators have a
financial incentive to favor their affiliated programmers. §
2(a)(5). Congress also determined that the cable industry is
characterized by horizontal concentration, with many cable
operators sharing common ownership. This has resulted in greater
"barriers to entry for new programmers and a reduction in the
number of media voices available to consumers." § 2(a)(4).
In light of these technological and economic conditions,
Congress concluded that unless cable operators are required to
carry local broadcast stations, "[t]here is a substantial
likelihood that ... additional local broadcast signals will be
deleted, repositioned, or not carried," § 2(a)(15); the "marked
shift in market share" from broadcast to cable will continue to
erode the advertising revenue base which sustains free local
broadcast television, §§ 2(a)(13)-(14); and that, as a consequence,
"the economic viability of free local broadcast television and its
ability to originate quality local programming will be seriously
jeopardized," § 2(a)(16).
D
Soon after the Act became law, appellants filed these five
consolidated actions in the United States District Court for the
District of Columbia against the United States and the Federal
Communications Commission (hereinafter referred to collectively as
the Government), challenging the constitutionality of the
must-carry provisions. Appellants, plaintiffs below, are numerous
cable programmers and cable operators. After additional parties
intervened, a three-judge District Court convened under 28 U. S. C.
§ 2284 to hear the actions. 1992 Cable Act § 23, 47 U. S. C. §
555(c)(1) (1988 ed., Supp.
635
IV). Each of the plaintiffs filed a motion for summary judgment;
several intervenor-defendants filed cross-motions for summary
judgment; and the Government filed a cross-motion to dismiss.
Although the Government had not asked for summary judgment, the
District Court, in a divided opinion, granted summary judgment in
favor of the Government and the other intervenor-defendants, ruling
that the must-carry provisions are consistent with the First
Amendment. 819
The court found that in enacting the must-carry provisions,
Congress employed "its regulatory powers over the economy to impose
order upon a market in dysfunction."
Id., at 40. The court
characterized the 1992 Cable Act as "simply industry-specific
antitrust and fair trade practice regulatory legislation,"
ibid., and said that the must-carry requirements "are
essentially economic regulation designed to create competitive
balance in the video industry as a whole, and to redress the
effects of cable operators' anticompetitive practices,"
ibid. The court rejected appellants' contention that the
must-carry requirements warrant strict scrutiny as a content-based
regulation, concluding that both the commercial and public
broadcast provisions "are, in intent as well as form, unrelated (in
all but the most recondite sense) to the content of any messages
that [the] cable operators, broadcasters, and programmers have in
contemplation to deliver."
Ibid. The court proceeded to
sustain the must-carry provisions under the intermediate standard
of scrutiny set forth in
United States v.
O'Brien,
391 U. S. 367
(1968), concluding that the preservation of local broadcasting is
an important governmental interest, and that the mustcarry
provisions are sufficiently tailored to serve that interest. 819 F.
Supp., at 45-47.
Judge Williams dissented. He acknowledged the "very real
problem" that "cable systems control access 'bottlenecks' to an
important communications medium," id., at 57, but concluded that
Congress may not address that problem
636
by extending access rights only to broadcast television
stations. In his view, the must-carry rules are content based, and
thus subject to strict scrutiny, because they require cable
operators to carry speech they might otherwise choose to exclude,
and because Congress' decision to grant favorable access to
broadcast programmers rested "in part, but quite explicitly, on a
finding about their content."
Id., at 58. Applying strict
scrutiny, Judge Williams determined that the interests advanced in
support of the law are inadequate to justify it. While assuming "as
an abstract matter" that the interest in preserving access to free
television is compelling, he found "no evidence that this access is
in jeopardy."
Id., at 62. Likewise, he concluded that the
rules are insufficiently tailored to the asserted interest in
programming diversity because cable operators "now carry the vast
majority of local stations," and thus to the extent the rules have
any effect at all, "it will be only to replace the mix chosen by
cablecasters-whose livelihoods depend largely on satisfying
audience demand-with a mix derived from congressional dictate."
Id., at 61.
This direct appeal followed, see § 23, 47 U. s. C. § 555(c)(1)
(1988 ed., Supp. IV), and we noted probable jurisdiction. 509 U. S.
952 (1993).
II
There can be no disagreement on an initial premise:
Cable programmers and cable operators engage in and transmit
speech, and they are entitled to the protection of the speech and
press provisions of the First Amendment.
Leathers v.
Medlock, 499
U. S. 439, 444 (1991). Through "original programming or by
exercising editorial discretion over which stations or programs to
include in its repertoire," cable programmers and operators "see[k]
to communicate messages on a wide variety of topics and in a wide
variety of formats."
Los Angeles v.
Preferred
Communications, Inc., 476 U. S. 488, 494
(1986). By requiring cable systems to set aside a portion of their
channels for local broadcasters,
637
the must-carry rules regulate cable speech in two respects:
The rules reduce the number of channels over which cable
operators exercise unfettered control, and they render it more
difficult for cable programmers to compete for carriage on the
limited channels remaining. Nevertheless, because not every
interference with speech triggers the same degree of scrutiny under
the First Amendment, we must decide at the outset the level of
scrutiny applicable to the must-carry provisions.
A
We address first the Government's contention that regulation of
cable television should be analyzed under the same First Amendment
standard that applies to regulation of broadcast television. It is
true that our cases have permitted more intrusive regulation of
broadcast speakers than of speakers in other media. Compare
Red
Lion Broadcasting Co. v.
FCC, 395 U. S. 367 (1969)
(television), and
National Broadcasting Co. v.
United
States, 319 U. S.
190 (1943) (radio), with
Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241 (1974) (print), and
Riley v.
National Federation of Blind of N. c.,
Inc., 487 U. S. 781 (1988)
(personal solicitation). But the rationale for applying a less
rigorous standard of First Amendment scrutiny to broadcast
regulation, whatever its validity in the cases elaborating it, does
not apply in the context of cable regulation.
The justification for our distinct approach to broadcast
regulation rests upon the unique physical limitations of the
broadcast medium. See
FCC v.
League of Women Voters of
Cal., 468 U. S.
364, 377 (1984);
Red Lion, supra, at 388-389,
396-399; National Broadcasting Co., 319 U. S., at 226. As a
general matter, there are more would-be broadcasters than
frequencies available in the electromagnetic spectrum. And if two
broadcasters were to attempt to transmit over the same frequency in
the same locale, they would interfere with one another's signals,
so that neither could be heard at all.
Id., at 212. The
scarcity of broadcast frequencies thus re-
638
quired the establishment of some regulatory mechanism to divide
the electromagnetic spectrum and assign specific frequencies to
particular broadcasters. See
FCC v.
League of Women
Voters, supra, at 377 ("The fundamental distinguishing
characteristic of the new medium of broadcasting ... is that
[b]roadcast frequencies are a scarce resource [that] must be
portioned out among applicants") (internal quotation marks
omitted);
FCC v.
National Citizens Comm. for
Broadcasting, 436
U. S. 775, 799 (1978). In addition, the inherent physical
limitation on the number of speakers who may use the broadcast
medium has been thought to require some adjustment in traditional
First Amendment analysis to permit the Government to place limited
content restraints, and impose certain affirmative obligations, on
broadcast licensees.
Red Lion, 395 U. S., at 390. As we said
in
Red Lion, "[w]here there are substantially more
individuals who want to broadcast than there are frequencies to
allocate, it is idle to posit an unabridgeable First Amendment
right to broadcast comparable to the right of every individual to
speak, write, or publish."
Id., at 388; see also
Columbia
Broadcasting System, Inc. v.
Democratic National
Committee, 412 U.
S. 94, 101 (1973).
Although courts and commentators have criticized the scarcity
rationale since its inception,5 we have declined to question its
continuing validity as support for our broadcast jurisprudence, see
FCC v.
League of Women Voters, supra, at 376, n. 11,
and see no reason to do so here. The broadcast
5 See,
e. g.,
Telecommunications Research and Action
Center v.
FCC, 801 F.2d
501, 508-509 (CADC 1986), cert. denied,
482 U. S. 919 (1987); L.
Bollinger, Images of a Free Press 87-90 (1991); L. Powe, American
Broadcasting and the First Amendment 197-209 (1987); M. Spitzer,
Seven Dirty Words and Six Other Stories 7-18 (1986); Note, The
Message in the Medium: The First Amendment on the Information
Superhighway, 107 Harv. L. Rev. 1062, 1072-1074 (1994); Winer, The
Signal Cable SendsPart I: Why Can't Cable Be More Like
Broadcasting?, 46 Md. L. Rev. 212, 218-240 (1987); Coase, The
Federal Communications Commission, 2 J. Law & Econ. 1, 12-27
(1959).
639
cases are inapposite in the present context because cable
television does not suffer from the inherent limitations that
characterize the broadcast medium. Indeed, given the rapid advances
in fiber optics and digital compression technology, soon there may
be no practical limitation on the number of speakers who may use
the cable medium. Nor is there any danger of physical interference
between two cable speakers attempting to share the same channel. In
light of these fundamental technological differences between
broadcast and cable transmission, application of the more relaxed
standard of scrutiny adopted in
Red Lion and the other
broadcast cases is inapt when determining the First Amendment
validity of cable regulation. See
Bolger v.
Youngs Drug
Products Corp.,
463 U. S. 60, 74 (1983)
("Our decisions have recognized that the special interest of the
Federal Government in regulation of the broadcast media does not
readily translate into a justification for regulation of other
means of communication") (footnote omitted).
This is not to say that the unique physical characteristics of
cable transmission should be ignored when determining the
constitutionality of regulations affecting cable speech. They
should not. See
infra, at 656. But whatever relevance these
physical characteristics may have in the evaluation of particular
cable regulations, they do not require the alteration of settled
principles of our First Amendment jurisprudence.
Although the Government acknowledges the substantial
technological differences between broadcast and cable, see Brief
for Federal Appellees 22, it advances a second argument for
application of the
Red Lion framework to cable regulation.
It asserts that the foundation of our broadcast jurisprudence is
not the physical limitations of the electromagnetic spectrum, but
rather the "market dysfunction" that characterizes the broadcast
market. Because the cable market is beset by a similar dysfunction,
the Government maintains, the
Red Lion standard of review
should also apply to
640
cable. While we agree that the cable market suffers certain
structural impediments, the Government's argument is flawed in two
respects. First, as discussed above, the special physical
characteristics of broadcast transmission, not the economic
characteristics of the broadcast market, are what underlies our
broadcast jurisprudence. See
League of Women Voters, 468 U.
S., at 377;
National Citizens Comm. for Broadcasting, supra,
at 799;
Red Lion, supra, at 390. Second, the mere assertion
of dysfunction or failure in a speech market, without more, is not
sufficient to shield a speech regulation from the First Amendment
standards applicable to nonbroadcast media. See,
e. g.,
Austin v.
Michigan Chamber of Commerce, 494 U. S. 652, 657-658
(1990);
Federal Election Comm'n v.
Massachusetts Citizens
for Life, Inc., 479 U. S. 238, 256-259
(1986);
Miami Herald Publishing Co. v.
Tornillo, 418
U. S., at 248-258.
By a related course of reasoning, the Government and some
appellees maintain that the must-carry provisions are nothing more
than industry-specific antitrust legislation, and thus warrant
rational-basis scrutiny under this Court's "precedents governing
legislative efforts to correct market failure in a market whose
commodity is speech," such as
Associated Press v.
United
States, 326 U. S.
1 (1945), and
Lorain Journal Co. v.
United
States, 342 U. S.
143 (1951). See Brief for Federal Appellees 17. This contention
is unavailing.
Associated Press and
Lorain Journal
both involved actions against members of the press brought under
the Sherman Antitrust Act, a law of general application. But while
the enforcement of a generally applicable law may or may not be
subject to heightened scrutiny under the First Amendment, compare
Cohen v.
Cowles Media Co., 501 U. S. 663, 670
(1991), with
Barnes v.
Glen Theatre, Inc., 501 U. S. 560, 566-567
(1991), laws that single out the press, or certain elements
thereof, for special treatment "pose a particular danger of abuse
by the State,"
Arkansas Writers' Project, Inc. v.
Ragland, 481
U. S. 221, 228 (1987), and so are always
641
subject to at least some degree of heightened First Amendment
scrutiny. See
Preferred Communications, 476 U. S., at 496
("Where a law is subjected to a colorable First Amendment
challenge, the rule of rationality which will sustain legislation
against other constitutional challenges typically does not have the
same controlling force"). Because the must-carry provisions impose
special obligations upon cable operators and special burdens upon
cable programmers, some measure of heightened First Amendment
scrutiny is demanded. See
Minneapolis Star &
Tribune
Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575, 583
(1983).
B
At the heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and beliefs
deserving of expression, consideration, and adherence. Our
political system and cultural life rest upon this ideal. See
Leathers v.
Medlock, 499 U. S., at 449 (citing
Cohen v.
California, 403 U. S. 15, 24 (1971));
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 638,
640-642 (1943). Government action that stifles speech on account of
its message, or that requires the utterance of a particular message
favored by the Government, contravenes this essential right. Laws
of this sort pose the inherent risk that the Government seeks not
to advance a legitimate regulatory goal, but to suppress unpopular
ideas or information or manipulate the public debate through
coercion rather than persuasion. These restrictions "rais[e] the
specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace."
Simon &
Schuster,
Inc. v.
Members of N.
Y. State Crime Victims Bd.,
502 U. S. 105,
116 (1991).
For these reasons, the First Amendment, subject only to narrow
and well-understood exceptions, does not countenance governmental
control over the content of messages expressed by private
individuals.
R. A. v: v.
St. Paul, 505 U. S. 377,
382-383 (1992);
Texas v.
Johnson, 491 U. S. 397,
642
414 (1989). Our precedents thus apply the most exacting scrutiny
to regulations that suppress, disadvantage, or impose differential
burdens upon speech because of its content. See
Simon &
Schuster, 502 U. S., at 115;
id., at 125-126
(KENNEDY, J., concurring in judgment);
Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983).
Laws that compel speakers to utter or distribute speech bearing a
particular message are subject to the same rigorous scrutiny. See
Riley v.
National Federation for Blind of N. c.,
Inc., 487 U. S., at 798;
West Virginia Bd. of Ed. v.
Barnette, supra. In contrast, regulations that are unrelated
to the content of speech are subject to an intermediate level of
scrutiny, see
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288, 293 (1984), because in most cases they pose a less
substantial risk of excising certain ideas or viewpoints from the
public dialogue.
Deciding whether a particular regulation is content based or
content neutral is not always a simple task. We have said that the
"principal inquiry in determining content neutrality ... is whether
the government has adopted a regulation of speech because of
[agreement or] disagreement with the message it conveys."
Ward v.
Rock Against Racism, 491 U. S. 781, 791
(1989). See
R. A. V:,
supra, at 386 ("The government
may not regulate [speech] based on hostility-or favoritism-towards
the underlying message expressed"). The purpose, or justification,
of a regulation will often be evident on its face. See
Frisby v.
Schultz, 487 U. S. 474, 481
(1988). But while a content-based purpose may be sufficient in
certain circumstances to show that a regulation is content based,
it is not necessary to such a showing in all cases. Cf.
Simon &
Schuster, supra, at 117 (" '[I]llicit
legislative intent is not the
sine qua non of a violation of
the First Amendment''') (quoting
Minneapolis Star &
Tribune, supra, at 592). Nor will the mere assertion of a
content-neutral purpose be enough to save a law which, on its face,
discriminates
643
based on content. Arkansas Writers' Project, 481 U. S., at
231-232; Carey v. Brown,
447 U. S. 455, 464-469
(1980).
As a general rule, laws that by their terms distinguish favored
speech from disfavored speech on the basis of the ideas or views
expressed are content based. See,
e. g., Burson v.
Freeman, 504
U. S. 191, 197 (1992) ("Whether individuals may exercise their
free-speech rights near polling places depends entirely on whether
their speech is related to a political campaign");
Boos v.
Barry, 485 U.
S. 312, 318-319 (1988) (plurality opinion) (whether municipal
ordinance permits individuals to "picket in front of a foreign
embassy depends entirely upon whether their picket signs are
critical of the foreign government or not"). By contrast, laws that
confer benefits or impose burdens on speech without reference to
the ideas or views expressed are in most instances content neutral.
See,
e. g., Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 804 (1984)
(ordinance prohibiting the posting of signs on public property "is
neutral-indeed it is silent-concerning any speaker's point of
view");
Heffron v.
International Soc. for Krishna
Consciousness, Inc., 452 U. S. 640, 649 (1981)
(State Fair regulation requiring that sales and solicitations take
place at designated locations "applies evenhandedly to all who wish
to distribute and sell written materials or to solicit funds").
c
Insofar as they pertain to the carriage of full-power
broadcasters, the must-carry rules, on their face, impose burdens
and confer benefits without reference to the content of speech.6
Although the provisions interfere with cable oper-
6 The must-carry rules also require carriage, under certain
limited circumstances, of low-power broadcast stations. 47 U. S. C.
§ 534(c); see n. 2, supra. Under the Act, a low-power station may
become eligible for carriage only if, among other things, the FCC
determines that the station's programming "would address local news
and informational needs which are not being adequately served by
full power television broadcast sta-
644
ators' editorial discretion by compelling them to offer carriage
to a certain minimum number of broadcast stations, the extent of
the interference does not depend upon the content of the cable
operators' programming. The rules impose obligations upon all
operators, save those with fewer than 300 subscribers, regardless
of the programs or stations they now offer or have offered in the
past. Nothing in the Act imposes a restriction, penalty, or burden
by reason of the views, programs, or stations the cable operator
has selected or will select. The number of channels a cable
operator must set aside depends only on the operator's channel
capacity, see 47 U. s. C. §§ 534(b)(1), 535(b)(2)-(3) (1988 ed.,
Supp. IV); hence, an operator cannot avoid or mitigate its
obligations under the Act by altering the programming it offers to
subscribers. Cf.
Miami Herald Publishing Co. v.
Tornillo, 418 U. S., at 256-257 (newspaper may avoid access
obligations by refraining from speech critical of political
candidates).
tions because of the geographic distance of such full power
stations from the low power station's community of license." §
534(h)(2)(B). We recognize that this aspect of § 4 appears to
single out certain low-power broadcasters for special benefits on
the basis of content. Because the District Court did not address
whether these particular provisions are content based, and because
the parties make only the most glancing reference to the operation
of, and justifications for, the low-power broadcast provisions, we
think it prudent to allow the District Court to consider the
contentneutral or content-based character of this provision in the
first instance on remand.
In a similar vein, although a broadcast station's eligibility
for must-carry is based upon its geographic proximity to a
qualifying cable system, § 534(h)(1)(C)(i), the Act permits the FCC
to grant must-carry privileges upon request to otherwise ineligible
broadcast stations. In acting upon these requests, the FCC is
directed to give "attention to the value of localism" and, in
particular, to whether the requesting station "provides news
coverage of issues of concern to such community ... or coverage of
sporting and other events of interest to the community." §
534(h)(1)(C)(ii). Again, the District Court did not address this
provision, but may do so on remand.
645
The must-carry provisions also burden cable programmers by
reducing the number of channels for which they can compete. But,
again, this burden is unrelated to content, for it extends to all
cable programmers irrespective of the programming they choose to
offer viewers. Cf.
Boos, supra, at 319 (individuals may
picket in front of a foreign embassy so long as their picket signs
are not critical of the foreign government). And finally, the
privileges conferred by the must-carry provisions are also
unrelated to content. The rules benefit all full power broadcasters
who request carriage-be they commercial or noncommercial,
independent or network affiliated, English or Spanish language,
religious or secular. The aggregate effect of the rules is thus to
make every full power commercial and noncommercial broadcaster
eligible for must-carry, provided only that the broadcaster
operates within the same television market as a cable system.
It is true that the must-carry provisions distinguish between
speakers in the television programming market. But they do so based
only upon the manner in which speakers transmit their messages to
viewers, and not upon the messages they carry: Broadcasters, which
transmit over the airwaves, are favored, while cable programmers,
which do not, are disfavored. Cable operators, too, are burdened by
the carriage obligations, but only because they control access to
the cable conduit. So long as they are not a subtle means of
exercising a content preference, speaker distinctions of this
nature are not presumed invalid under the First Amendment.
That the must-carry provisions, on their face, do not burden or
benefit speech of a particular content does not end the inquiry.
Our cases have recognized that even a regulation neutral on its
face may be content based if its manifest purpose is to regulate
speech because of the message it conveys.
United States v.
Eichman, 496
U. S. 310, 315 (1990) ("Although the Flag Protection Act
contains no explicit content-
646
based limitation on the scope of prohibited conduct, it is
nevertheless clear that the Government's asserted
interest
is related to the suppression of free expression") (emphasis in
original) (internal quotation marks omitted); see also
Ward,
491 U. S., at 791-792;
Clark v.
Community for Creative
Non- Violence, 468 U. S., at 293; cf.
Church of Lukumi
Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 534-535
(1993).
Appellants contend, in this regard, that the must-carry
regulations are content based because Congress' purpose in enacting
them was to promote speech of a favored content. We do not agree.
Our review of the Act and its various findings persuades us that
Congress' overriding objective in enacting must-carry was not to
favor programming of a particular subject matter, viewpoint, or
format, but rather to preserve access to free television
programming for the 40 percent of Americans without cable.
In unusually detailed statutory findings,
supra, at
632-634, Congress explained that because cable systems and
broadcast stations compete for local advertising revenue, §§
2(a)(14)-(15), and because cable operators have a vested financial
interest in favoring their affiliated programmers over broadcast
stations, § 2(a)(5), cable operators have a built-in "economic
incentive ... to delete, reposition, or not carry local broadcast
signals," § 2(a)(16). Congress concluded that absent a requirement
that cable systems carry the signals of local broadcast stations,
the continued availability of free local broadcast television would
be threatened.
Ibid. Congress sought to avoid the
elimination of broadcast television because, in its words, "[s]uch
programming is ... free to those who own television sets and do not
require cable transmission to receive broadcast television
signals," § 2(a)(12), and because "[t]here is a substantial
governmental interest in promoting the continued availability of
such free television programming, especially for viewers who are
unable to afford other means of receiving programming,"
ibid.
647
By preventing cable operators from refusing carriage to
broadcast television stations, the must-carry rules ensure that
broadcast television stations will retain a large enough potential
audience to earn necessary advertising revenueor, in the case of
noncommercial broadcasters, sufficient viewer contributions, see §
2(a)(8)(B)-to maintain their continued operation. In so doing, the
provisions are designed to guarantee the survival of a medium that
has become a vital part of the Nation's communication system, and
to ensure that every individual with a television set can obtain
access to free television programming.
This overriding congressional purpose is unrelated to the
content of expression disseminated by cable and broadcast speakers.
Indeed, our precedents have held that "protecting noncable
households from loss of regular television broadcasting service due
to competition from cable systems," is not only a permissible
governmental justification, but an "important and substantial
federal interest."
Capital Cities Cable, Inc. v.
Crisp, 467 U.
S. 691, 714 (1984); see also
United States v.
Midwest
Video Corp., 406
U. S. 649, 661-662, 664 (1972) (plurality opinion).
The design and operation of the challenged provisions confirm
that the purposes underlying the enactment of the must-carry scheme
are unrelated to the content of speech. The rules, as mentioned,
confer must-carry rights on all full power broadcasters,
irrespective of the content of their programming. They do not
require or prohibit the carriage of particular ideas or points of
view. They do not penalize cable operators or programmers because
of the content of their programming. They do not compel cable
operators to affirm points of view with which they disagree. They
do not produce any net decrease in the amount of available speech.
And they leave cable operators free to carry whatever programming
they wish on all channels not subject to mustcarry
requirements.
648
Appellants and JUSTICE O'CONNOR make much of the fact that, in
the course of describing the purposes behind the Act, Congress
referred to the value of broadcast programming. In particular,
Congress noted that broadcast television is "an important source of
local news[,] public affairs programming and other local broadcast
services critical to an informed electorate," § 2(a)(1l); see also
§ 2(a)(10), and that noncommercial television "provides educational
and informational programming to the Nation's citizens," §2(a)(8).
We do not think, however, that such references cast any material
doubt on the content-neutral character of must-carry. That Congress
acknowledged the local orientation of broadcast programming and the
role that noncommercial stations have played in educating the
public does not indicate that Congress regarded broadcast
programming as
more valuable than cable programming. Rather,
it reflects nothing more than the recognition that the services
provided by broadcast television have some intrinsic value and,
thus, are worth preserving against the threats posed by cable. See
819 F. Supp., at 44 ("Congress' solicitousness for local
broadcasters' material simply rests on its assumption that they
have as much to say of interest or value as the cable programmers
who service a given geographic market audience").
The operation of the Act further undermines the suggestion that
Congress' purpose in enacting must-carry was to force programming
of a "local" or "educational" content on cable subscribers. The
provisions, as we have stated, benefit all full power broadcasters
irrespective of the nature of their programming. In fact, if a
cable system were required to bump a cable programmer to make room
for a broadcast station, nothing would stop a cable operator from
displacing a cable station that provides all local- or
education-oriented programming with a broadcaster that provides
very little. Appellants do not even contend, moreover, that
broadcast programming is any more "local" or "educational" than
cable programming. Cf.
Leathers v.
Medlock, 499 U.
S., at 449
649
(state law imposing tax upon cable television, but exempting
other media, is not content based, in part due to lack of evidence
that cable programming "differs systematically in its message from
that communicated by satellite broadcast programming, newspapers,
or magazines").
In short, Congress' acknowledgment that broadcast television
stations make a valuable contribution to the Nation's
communications system does not render the must-carry scheme content
based. The scope and operation of the challenged provisions make
clear, in our view, that Congress designed the must-carry
provisions not to promote speech of a particular content, but to
prevent cable operators from exploiting their economic power to the
detriment of broadcasters, and thereby to ensure that all
Americans, especially those unable to subscribe to cable, have
access to free television programming-whatever its content.
We likewise reject the suggestion, advanced by appellants and by
Judge Williams in dissent, that the must-carry rules are content
based because the preference for broadcast stations
"automatically entails content requirements." 819 F. Supp.,
at 58. It is true that broadcast programming, unlike cable
programming, is subject to certain limited content restraints
imposed by statute and FCC regulation.7 But it does not follow that
Congress mandated cable carriage of broadcast television stations
as a means of ensuring that par-
7 See,
e. g., 47 U. S. C. § 303b (1988 ed., Supp. IV)
(directing FCC to consider extent to which license renewal
applicant has "served the educational and informational needs of
children"); Pub. L. 102-356, § 16(a), 106 Stat. 954, note following
47 U. S. C. §303 (1988 ed., Supp. IV) (restrictions on indecent
programming); 47 U. S. C. §312(a)(7) (allowing FCC to revoke
broadcast license for willful or repeated failure to allow
reasonable access to broadcast airtime for candidates seeking
federal elective office); 47 CFR § 73.1920 (1993) (requiring
broadcaster to notify victims of on-air personal attacks and to
provide victims with opportunity to respond over the air); En Bane
Programming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960) (requiring
broadcasters to air programming that serves "the public interest,
convenience or necessity").
650
ticular programs will be shown, or not shown, on cable
systems.
As an initial matter, the argument exaggerates the extent to
which the FCC is permitted to intrude into matters affecting the
content of broadcast programming. The FCC is forbidden by statute
to engage in "censorship" or to promulgate any regulation "which
shall interfere with the [broadcasters'] right of free speech." 47
U. S. C. §326. The FCC is well aware of the limited nature of its
jurisdiction, having acknowledged that it "has no authority and, in
fact, is barred by the First Amendment and [§ 326] from interfering
with the free exercise of journalistic judgment."
Hubbard
Broadcasting, Inc., 48 F. C. C. 2d 517, 520 (1974). In particular,
the FCC's oversight responsibilities do not grant it the power to
ordain any particular type of programming that must be offered by
broadcast stations; for although "the Commission may inquire of
licensees what they have done to determine the needs of the
community they propose to serve, the Commission may not impose upon
them its private notions of what the public ought to hear." Network
Programming Inquiry, Report and Statement of Policy, 25 Fed. Reg.
7293 (1960); see also
Commercial TV Stations, 98 F. C. C. 2d
1076, 1091-1092 (1984), modified, 104 F. C. C. 2d 358 (1986),
remanded in part on other grounds
sub nom. Action for Children's
Television v.
FCC, 821 F.2d
741 (CADC 1987).
Stations licensed to broadcast over the special frequencies
reserved for "noncommercial educational" stations are subject to no
more intrusive content regulation than their commercial
counterparts. Noncommercial licensees must operate on a nonprofit
basis, may not accept financial consideration in exchange for
particular programming, and may not broadcast promotional
announcements or advertisements on behalf of for-profit entities.
47 CFR §§ 73.621(d)-(e) (1993); see generally
Public
Broadcasting, 98 F. C. C. 2d 746, 751
(1984); Educational
Broadcast Stations, 90 F. C. C. 2d 895
651
(1982), modified, 97 F. C. C. 2d 255 (1984). What is important
for present purposes, however, is that noncommercial licensees are
not required by statute or regulation to carry any specific
quantity of "educational" programming or any particular
"educational" programs. Noncommercial licensees, like their
commercial counterparts, need only adhere to the general
requirement that their programming serve "the public interest,
convenience or necessity."
En Banc Programming Inquiry, 44
F. C. C. 2d 2303, 2312 (1960). The FCC itself has recognized that
"a more rigorous standard for public stations would come
unnecessarily close to impinging on First Amendment rights and
would run the collateral risk of stifling the creativity and
innovative potential of these stations."
Public Broadcasting,
supra, at 751; see also
Public Radio and TV Programming,
87 F. C. C. 2d 716, 728-729, 732, "29-30, 37 (1981);
Georgia
State Bd. of Ed., 70
In addition, although federal funding provided through the
Corporation for Public Broadcasting (CPB) supports programming on
noncommercial stations, the Government is foreclosed from using its
financial support to gain leverage over any programming decisions.
See 47 U. S. C. § 396(g) (l)(D) (directing CPB to "carry out its
purposes and functions and engage in its activities in ways that
will most effectively assure the maximum freedom of the public
telecommunications entities and systems from interference with, or
control of, program content or other activities"), § 398(a) (CPB
operates without interference from any department, agency, or
officer of the Federal Government, including the FCC).
Indeed, our cases have recognized that Government regulation
over the content of broadcast programming must be narrow, and that
broadcast licensees must retain abundant discretion over
programming choices. See
FCC v.
League of Women Voters of
Cal., 468 U. S., at 378-380, 386-392 (invalidating under the
First Amendment statute forbidding any noncommercial educational
station that receives a grant
652
from the CPB to "engage in editorializing");
Columbia
Broadcasting System, Inc. v.
Democratic National
Committee, 412 U. S., at 126 (describing "the risk of an
enlargement of Government control over the content of broadcast
discussion of public issues" as being of "critical importance" to
the First Amendment). Thus, given the minimal extent to which the
FCC and Congress actually influence the programming offered by
broadcast stations, it would be difficult to conclude that Congress
enacted must-carry in an effort to exercise content control over
what subscribers view on cable television. In a regime where
Congress or the FCC exercised more intrusive control over the
content of broadcast programming, an argument similar to
appellants' might carry greater weight. But in the present
regulatory system, those concerns are without foundation.
In short, the must-carry provisions are not designed to favor or
disadvantage speech of any particular content. Rather, they are
meant to protect broadcast television from what Congress determined
to be unfair competition by cable systems. In enacting the
provisions, Congress sought to preserve the existing structure of
the Nation's broadcast television medium while permitting the
concomitant expansion and development of cable television, and, in
particular, to ensure that broadcast television remains available
as a source of video programming for those without cable.
Appellants' ability to hypothesize a content-based purpose for
these provisions rests on little more than speculation and does not
cast doubt upon the content-neutral character of must-carry. Cf.
Arizona v.
California, 283 U. S. 423, 455-457
(1931). Indeed, "[i]t is a familiar principle of constitutional law
that this Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive."
United States v.
O'Brien, 391 U. S., at 383 (citing
McCray v.
United States, 195 U. S. 27, 56
(1904)).
653
D
Appellants advance three additional arguments to support their
view that the must-carry provisions warrant strict scrutiny. In
brief, appellants contend that the provisions (1) compel speech by
cable operators, (2) favor broadcast programmers over cable
programmers, and (3) single out certain members of the press for
disfavored treatment. None of these arguments suffices to require
strict scrutiny in the present case.
1
Appellants maintain that the must-carry provisions trigger
strict scrutiny because they compel cable operators to transmit
speech not of their choosing. Relying principally on
Miami
Herald Publishing Co. v.
Tornillo, 418 U. S. 241 (1974),
appellants say this intrusion on the editorial control of cable
operators amounts to forced speech which, if not
per se
invalid, can be justified only if narrowly tailored to a compelling
government interest.
Tornillo affirmed an essential proposition: The First
Amendment protects the editorial independence of the press. The
right-of-reply statute at issue in
Tornillo required any
newspaper that assailed a political candidate's character to print,
upon request by the candidate and without cost, the candidate's
reply in equal space and prominence. Although the statute did not
censor speech in the traditional senseit only required newspapers
to grant access to the messages of others-we found that it imposed
an impermissible content-based burden on newspaper speech. Because
the right of access at issue in
Tornillo was triggered only
when a newspaper elected to print matter critical of political
candidates, it "exact[ed] a penalty on the basis of ... content."
Id., at 256. We found, and continue to recognize, that
rightof-reply statutes of this sort are an impermissible intrusion
on newspapers' "editorial control and judgment."
Id., at
258.
654
We explained that, in practical effect, Florida's right-ofreply
statute would deter newspapers from speaking in unfavorable terms
about political candidates:
"Faced with the penalties that would accrue to any newspaper
that published news or commentary arguably within the reach of the
right-of-access statute, editors might well conclude that the safe
course is to avoid controversy. Therefore, under the operation of
the Florida statute, political and electoral coverage would be
blunted or reduced." Id., at 257.
Moreover, by affording mandatory access to speakers with which
the newspaper disagreed, the law induced the newspaper to respond
to the candidates' replies when it might have preferred to remain
silent. See
Pacific Gas &
Elec. Co. v.
Public
Util. Comm'n of Cal., 475 U. S. 1, 11 (1986)
(plurality opinion).
The same principles led us to invalidate a similar contentbased
access regulation in
Pacific Gas &
Electric. At
issue was a rule requiring a privately owned utility, on a
quarterly basis, to include with its monthly bills an editorial
newsletter published by a consumer group critical of the utility's
ratemaking practices. Although the access requirement applicable to
the utility, unlike the statutory mechanism in
Tornillo, was
not triggered by speech of any particular content, the plurality
held that the same strict First Amendment scrutiny applied. Like
the statute in
Tornillo, the regulation conferred benefits
to speakers based on viewpoint, giving access only to a consumer
group opposing the utility's practices. 475 U. S., at 13, 15. The
plurality observed that in order to avoid the appearance that it
agreed with the group's views, the utility would "feel compelled to
respond to arguments and allegations made by [the group] in its
messages to [the utility's] customers."
Id., at 16. This
"kind of forced response," the plurality explained, "is
antithetical to
655
the free discussion that the First Amendment seeks to foster."
Ibid.
Tornillo and
Pacific Gas &
Electric do
not control this case for the following reasons. First, unlike the
access rules struck down in those cases, the must-carry rules are
content neutral in application. They are not activated by any
particular message spoken by cable operators and thus exact no
content-based penalty. Cf.
Riley v.
National Federation
of Blind of N. c.,
Inc., 487 U. S., at 795 (solicitation
of funds triggers requirement to express government-favored
message). Likewise, they do not grant access to broadcasters on the
ground that the content of broadcast programming will
counterbalance the messages of cable operators. Instead, they
confer benefits upon all full-power, local broadcasters, whatever
the content of their programming. Cf.
Pacific Gas &
Electric, supra, at 14 (access "awarded only to those who
disagree with appellant's views and who are hostile to appellant's
interests").
Second, appellants do not suggest, nor do we think it the case,
that must-carry will force cable operators to alter their own
messages to respond to the broadcast programming they are required
to carry. See Brenner, Cable Television and the Freedom of
Expression, 1988 Duke L. J., at 379 ("Other than adding new
ideas-offensive, insightful or tedious-the [speaker granted access
to cable] does not influence an operator's agenda"). Given cable's
long history of serving as a conduit for broadcast signals, there
appears little risk that cable viewers would assume that the
broadcast stations carried on a cable system convey ideas or
messages endorsed by the cable operator. Indeed, broadcasters are
required by federal regulation to identify themselves at least once
every hour, 47 CFR § 73.1201 (1993), and it is a common practice
for broadcasters to disclaim any identity of viewpoint between the
management and the speakers who use the broadcast facility. Cf.
PruneYard Shopping Center v.
Robins, 447 U. S. 74, 87 (1980)
(noting that the views ex-
656
pressed by speakers who are granted a right of access to a
shopping center would "not likely be identified with those of the
owner"). Moreover, in contrast to the statute at issue in
Tornillo, no aspect of the must-carry provisions would cause
a cable operator or cable programmer to conclude that "the safe
course is to avoid controversy,"
Tornillo, 418 U. S., at
257, and by so doing diminish the free flow of information and
ideas.
Finally, the asserted analogy to
Tornillo ignores an
important technological difference between newspapers and cable
television. Although a daily newspaper and a cable operator both
may enjoy monopoly status in a given locale, the cable operator
exercises far greater control over access to the relevant medium. A
daily newspaper, no matter how secure its local monopoly, does not
possess the power to obstruct readers' access to other competing
publications-whether they be weekly local newspapers, or daily
newspapers published in other cities. Thus, when a newspaper
asserts exclusive control over its own news copy, it does not
thereby prevent other newspapers from being distributed to willing
recipients in the same locale.
The same is not true of cable. When an individual subscribes to
cable, the physical connection between the television set and the
cable network gives the cable operator bottleneck, or gatekeeper,
control over most (if not all) of the television programming that
is channeled into the subscriber's home. Hence, simply by virtue of
its ownership of the essential pathway for cable speech, a cable
operator can prevent its subscribers from obtaining access to
programming it chooses to exclude. A cable operator, unlike
speakers in other media, can thus silence the voice of competing
speakers with a mere flick of the switch.8
8 As one commentator has observed: "The central dilemma of cable
is that it has unlimited capacity to accommodate as much diversity
and as many publishers as print, yet all of the producers and
publishers use the same physical plant .... If the cable system is
itself a publisher, it may
657
The potential for abuse of this private power over a central
avenue of communication cannot be overlooked. See
Southeastern
Promotions, Ltd. v.
Conrad, 420 U. S. 546, 557 (1975)
("Each medium of expression ... must be assessed for First
Amendment purposes by standards suited to it, for each may present
its own problems"). The First Amendment's command that government
not impede the freedom of speech does not disable the government
from taking steps to ensure that private interests not restrict,
through physical control of a critical pathway of communication,
the free flow of information and ideas. See
Associated Press
v.
United States, 326 U. S., at 20. We thus reject
appellants' contention that
Tornillo and
Pacific Gas
&
Electric require strict scrutiny of the access rules
in question here.
2
Second, appellants urge us to apply strict scrutiny because the
must-carry provisions favor one set of speakers (broadcast
programmers) over another (cable programmers). Appellants maintain
that as a consequence of this speaker preference, some cable
programmers who would have secured carriage in the absence of
must-carry may now be dropped. Relying on language in
Buckley v.
Valeo, 424 U. S. 1 (1976),
appellants contend that such a regulation is presumed invalid under
the First Amendment because the government may not "restrict the
speech of some elements of our society in order to enhance the
relative voice of others."
Id., at 48-49.
To the extent appellants' argument rests on the view that all
regulations distinguishing between speakers warrant strict
scrutiny, see Brief for Appellants Turner Broadcasting System,
Inc., et al. 29, it is mistaken. At issue in
Buckley was a
federal law prohibiting individuals from spending more than $1,000
per year to support or oppose a particular political candidate. The
Government justified the law as a means
restrict the circumstances under which it allows others also to
use its system." I. de Sola Pool, Technologies of Freedom 168
(1983).
658
of "equalizing the relative ability of individuals and groups to
influence the outcome of elections."
Buckley, 424 U. S., at
48. We rejected that argument with the observation that Congress
may not "abridge the rights of some persons to engage in political
expression in order to enhance the relative voice of other segments
of our society."
Id., at 49, n. 55.
Our holding in
Buckley does not support appellants' broad
assertion that all speaker-partial laws are presumed invalid.
Rather, it stands for the proposition that speaker-based laws
demand strict scrutiny when they reflect the Government's
preference for the substance of what the favored speakers have to
say (or aversion to what the disfavored speakers have to say). See
Regan v.
Taxation with Representation of Wash.,
461 U. S. 540,
548 (1983) (rejecting First Amendment challenge to differential tax
treatment of veterans groups and other charitable organizations,
but noting that the case would be different were there any
"indication that the statute was intended to suppress any ideas or
any demonstration that it has had that effect"). Because the
expenditure limit in
Buckley was designed to ensure that the
political speech of the wealthy not drown out the speech of others,
we found that it was concerned with the communicative impact of the
regulated speech. See
Buckley, supra, at 17 ("[I]t is beyond
dispute that the interest in regulating the ... giving or spending
[of] money 'arises in some measure because the communication ... is
itself thought to be harmful''') (quoting
United States v.
O'Brien, 391 U. S., at 382). Indeed, were the expenditure
limitation unrelated to the content of expression, there would have
been no perceived need for Congress to "equaliz[e] the relative
ability" of interested individuals to influence elections. 424 U.
S., at 48.
Buckley thus stands for the proposition that laws
favoring some speakers over others demand strict scrutiny when the
legislature's speaker preference reflects a content preference.
The question here is whether Congress preferred broadcasters
over cable programmers based on the content of pro-
659
gramming each group offers. The answer, as we explained,
supra, at 643-652, is no. Congress granted must-carry
privileges to broadcast stations on the belief that the broadcast
television industry is in economic peril due to the physical
characteristics of cable transmission and the economic incentives
facing the cable industry. Thus, the fact that the provisions
benefit broadcasters and not cable programmers does not call for
strict scrutiny under our precedents.
3
Finally, appellants maintain that strict scrutiny applies
because the must-carry provisions single out certain members of the
press-here, cable operators-for disfavored treatment. See,
e. g., Brief for Appellant Time Warner Entertainment Co.
28-30. In support, appellants point out that Congress has required
cable operators to provide carriage to broadcast stations, but has
not imposed like burdens on analogous video delivery systems, such
as multichannel multipoint distribution (MMDS) systems and
satellite master antenna television (SMATV) systems. Relying upon
our precedents invalidating discriminatory taxation of the press,
see,
e. g., Arkansas Writers' Project, Inc. v.
Ragland,
481 U. S. 221 (1987);
Minneapolis Star &
Tribune
Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575 (1983);
Grosjean v.
American Press Co., 297 U. S. 233 (1936),
appellants contend that this sort of differential treatment poses a
particular danger of abuse by the Government and should be presumed
invalid.
Regulations that discriminate among media, or among different
speakers within a single medium, often present serious First
Amendment concerns.
Minneapolis Star, for example,
considered a use tax imposed on the paper and ink used in the
production of newspapers. We subjected the tax to strict scrutiny
for two reasons: first, because it applied only to the press; and,
second, because in practical application it fell upon only a small
number of newspapers.
Minne-
660
apolis Star, supra, at 585,591-592; see also
Grosjean,
supra (invalidating Louisiana tax on publications with weekly
circulations above 20,000, which fell on 13 of the approximately
135 newspapers distributed in the State). The sales tax at issue in
Arkansas Writers' Project, which applied to general interest
magazines but exempted religious, professional, trade, and sports
magazines, along with all newspapers, suffered the second of these
infirmities. In operation, the tax was levied upon a limited number
of publishers and also discriminated on the basis of subject
matter.
Arkansas Writers' Project, supra, at 229-230.
Relying in part on
Minneapolis Star, we held that this
selective taxation of the press warranted strict scrutiny. 481 U.
S., at 231.
It would be error to conclude, however, that the First Amendment
mandates strict scrutiny for any speech regulation that applies to
one medium (or a subset thereof) but not others. In
Leathers
v.
Medlock, 499 U. S. 439 (1991), for
example, we upheld against First Amendment challenge the
application of a general state tax to cable television services,
even though the print media and scrambled satellite broadcast
television services were exempted from taxation. As
Leathers
illustrates, the fact that a law singles out a certain medium, or
even the press as a whole, "is insufficient by itself to raise
First Amendment concerns."
Id., at 452. Rather, laws of this
nature are "constitutionally suspect only in certain
circumstances."
Id., at 444. The taxes invalidated in
Minneapolis Star and
Arkansas Writers' Project, for
example, targeted a small number of speakers, and thus threatened
to "distort the market for ideas." 499 U. S., at 448. Although
there was no evidence that an illicit governmental motive was
behind either of the taxes, both were structured in a manner that
raised suspicions that their objective was, in fact, the
suppression of certain ideas. See
Arkansas Writers' Project,
supra, at 228-229;
Minneapolis Star, 460 U. S., at 585.
But such heightened scrutiny is unwarranted when the differential
treatment is "justified by some special
661
characteristic of" the particular medium being regulated.
Ibid.
The must-carry provisions, as we have explained above, are
justified by special characteristics of the cable medium: the
bottleneck monopoly power exercised by cable operators and the
dangers this power poses to the viability of broadcast television.
Appellants do not argue, nor does it appear, that other media-in
particular, media that transmit video programming such as MMDS and
SMATV -are subject to bottleneck monopoly control, or pose a
demonstrable threat to the survival of broadcast television. It
should come as no surprise, then, that Congress decided to impose
the mustcarry obligations upon cable operators only.
In addition, the must-carry provisions are not structured in a
manner that carries the inherent risk of undermining First
Amendment interests. The regulations are broad based, applying to
almost all cable systems in the country, rather than just a select
few. See 47 U. S. C. § 534(b)(1) (1988 ed., Supp. IV) (only cable
systems with fewer than 300 subscribers exempted from must-carry).
As a result, the provisions do not pose the same dangers of
suppression and manipulation that were posed by the more narrowly
targeted regulations in
Minneapolis Star and
Arkansas
Writers' Project. For these reasons, the must-carry rules do
not call for strict scrutiny. See
Leathers, supra, at 449,
453 (upholding state sales tax which applied to about 100 cable
systems "offering a wide variety of programming" because the tax
was not "likely to stifle the free exchange of ideas" and posed no
"danger of suppress[ion]").
III A
In sum, the must-carry provisions do not pose such inherent
dangers to free expression, or present such potential for
censorship or manipulation, as to justify application of the most
exacting level of First Amendment scrutiny. We agree
662
with the District Court that the appropriate standard by which
to evaluate the constitutionality of must-carry is the intermediate
level of scrutiny applicable to content-neutral restrictions that
impose an incidental burden on speech. See
Ward v.
Rock
Against Racism, 491 U. S. 781 (1989);
United States v.
O'Brien, 391 U. S. 367 (1968).
Under
O'Brien, a content-neutral regulation will be
sus-
tained if
"it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest." Id., at 377.
To satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government's interests.
"Rather, the requirement of narrow tailoring is satisfied 'so long
as the ... regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation.'''
Ward, supra, at 799 (quoting
United States v.
Albertini, 472
U. S. 675, 689 (1985)). Narrow tailoring in this context
requires, in other words, that the means chosen do not "burden
substantially more speech than is necessary to further the
government's legitimate interests."
Ward, supra, at 799.
Congress declared that the must-carry provisions serve three
interrelated interests: (1) preserving the benefits of free,
over-the-air local broadcast television, (2) promoting the
widespread dissemination of information from a multiplicity of
sources, and (3) promoting fair competition in the market for
television programming. S. Rep. No. 102-92, p. 58 (1991); H. R.
Rep. No. 102-628, p. 63 (1992); 1992 Cable Act, §§ 2(a)(8), (9),
and (10). None of these interests is related to the "suppression of
free expression,"
O'Brien, 391 U. S., at 377, or to the
content of any speakers' messages. And
663
viewed in the abstract, we have no difficulty concluding that
each of them is an important governmental interest.
Ibid.
In the Communications Act of 1934, Congress created a system of
free broadcast service and directed that communications facilities
be licensed across the country in a "fair, efficient, and
equitable" manner. Communications Act of 1934, § 307(b), 48 Stat.
1083, 47 U. S. C. § 307(b). Congress designed this system of
allocation to afford each community of appreciable size an
over-the-air source of information and an outlet for exchange on
matters of local concern.
United States v.
Southwestern
Cable Co., 392 U.
S. 157, 173-174 (1968); Wollenberg, The FCC as Arbiter of "The
Public Interest, Convenience, and Necessity," in A Legislative
History of the Communications Act of 1934, pp. 61, 62-70 (M. Paglin
ed. 1989). As we recognized in
Southwestern Cable, supra,
the importance of local broadcasting outlets "can scarcely be
exaggerated, for broadcasting is demonstrably a principal source of
information and entertainment for a great part of the Nation's
population."
Id., at 177. The interest in maintaining the
local broadcasting structure does not evaporate simply because
cable has come upon the scene. Although cable and other
technologies have ushered in alternatives to broadcast television,
nearly 40 percent of American households still rely on broadcast
stations as their exclusive source of television programming. And
as we said in
Capital Cities Cable, Inc. v.
Crisp,
"protecting noncable households from loss of regular television
broadcasting service due to competition from cable systems" is an
important federal interest. 467 U. S., at 714.
Likewise, assuring that the public has access to a multiplicity
of information sources is a governmental purpose of the highest
order, for it promotes values central to the First Amendment.
Indeed," 'it has long been a basic tenet of national communications
policy that "the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare of the
public." ,,,
United
664
States v.
Midwest Video Corp., 406 U. S., at 668,
n. 27 (plurality opinion) (quoting
Associated Press v.
United States, 326 U. S., at 20); see also
FCC v.
WNCN Listeners Guild, 450 U. S. 582, 594 (1981);
FCC
v.
National Citizens Comm. for Broadcasting, 436 U. S. 775, 795
(1978). Finally, the Government's interest in eliminating
restraints on fair competition is always substantial, even when the
individuals or entities subject to particular regulations are
engaged in expressive activity protected by the First Amendment.
See
Lorain Journal Co. v.
United States, 342 U. S. 143 (1951);
Associated Press v.
United States, supra; cf.
FTC v.
Superior Court Trial Lawyers Assn., 493 U. S. 411, 431-432
(1990).
B
That the Government's asserted interests are important in the
abstract does not mean, however, that the must-carry rules will in
fact advance those interests. When the Government defends a
regulation on speech as a means to redress past harms or prevent
anticipated harms, it must do more than simply "posit the existence
of the disease sought to be cured."
Quincy Cable TV:
Inc. v.
FCC, 768 F.2d
1434, 1455 (CADC 1985). 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.
See
Edenfield v.
Fane, 507 U. S. 761, 770-771
(1993);
Los Angeles v.
Preferred Communications,
Inc., 476 U. S., at 496 ("This Court may not simply assume that
the ordinance will always advance the asserted state interests
sufficiently to justify its abridgment of expressive activity")
(internal quotation marks omitted);
Home Box Office, Inc. v.
FCC, 567 F.2d
9, 36 (CADC 1977) ("[A] 'regulation perfectly reasonable and
appropriate in the face of a given problem may be highly capricious
if that problem does not exist''') (citation omitted).
Thus, in applying
O'Brien scrutiny we must ask first
whether the Government has adequately shown that the eco-
665
nomic health of local broadcasting is in genuine jeopardy and in
need of the protections afforded by must-carry. Assuming an
affirmative answer to the foregoing question, the Government still
bears the burden of showing that the remedy it has adopted does not
"burden substantially more speech than is necessary to further the
government's legitimate interests."
Ward, 491 U. S., at 799.
On the state of the record developed thus far, and in the absence
of findings of fact from the District Court, we are unable to
conclude that the Government has satisfied either inquiry.
In defending the factual necessity for must-carry, the
Government relies in principal part on Congress' legislative
finding that, absent mandatory carriage rules, the continued
viability of local broadcast television would be "seriously
jeopardized." § 2(a)(16). See Brief for Federal Appellees 31-32.
The Government contends that this finding, though predictive in
nature, must be accorded great weight in the First Amendment
inquiry, especially when, as here, Congress has sought to "address
the relationship between two technical, rapidly changing, and
closely interdependent industries-broadcasting and cable."
Id., at 30.
We agree that courts must accord substantial deference to the
predictive judgments of Congress. See,
e. g., Columbia
Broadcasting System, Inc. v.
Democratic National
Committee, 412 U. S., at 103 (The "judgment of the Legislative
Branch" should not be ignored "simply because [appellants] cas[t]
[their] claims under the umbrella of the First Amendment"). Sound
policymaking often requires legislators to forecast future events
and to anticipate the likely impact of these events based on
deductions and inferences for which complete empirical support may
be unavailable. See
FCC v.
National Citizens Comm. for
Broadcasting, supra, at 814;
FPC v.
Transcontinental
Gas Pipe Line Corp., 365 U. S. 1, 29 (1961). As
an institution, moreover, Congress is far better equipped than the
judiciary to "amass and evaluate the vast amounts of data" bearing
upon an issue as complex and
666
dynamic as that presented here.
Walters v.
National
Assn. of Radiation Survivors, 473 U. S. 305, 331, n. 12
(1985). And Congress is not obligated, when enacting its statutes,
to make a record of the type that an administrative agency or court
does to accommodate judicial review.
That Congress' predictive judgments are entitled to substantial
deference does not mean, however, that they are insulated from
meaningful judicial review altogether. On the contrary, we have
stressed in First Amendment cases that the deference afforded to
legislative findings does "not foreclose our independent judgment
of the facts bearing on an issue of constitutional law."
Sable
Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 129
(1989); see also
Landmark Communications, Inc. v.
Virginia, 435
U. S. 829, 843 (1978). This obligation to exercise independent
judgment when First Amendment rights are implicated is not a
license to reweigh the evidence
de novo, or to replace
Congress' factual predictions with our own. Rather, it is to assure
that, in formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence. See
Century
Communications Corp. v.
FCC, 835 F.2d
292, 304 (CADC 1987) ("[W]hen trenching on first amendment
interests, even incidentally, the government must be able to adduce
either empirical support or at least sound reasoning on behalf of
its measures").
The Government's assertion that the must-carry rules are
necessary to protect the viability of broadcast television rests on
two essential propositions: (1) that unless cable operators are
compelled to carry broadcast stations, significant numbers of
broadcast stations will be refused carriage on cable systems; and
(2) that the broadcast stations denied carriage will either
deteriorate to a substantial degree or fail altogether.
As support for the first proposition, the Government relies upon
a 1988 FCC study showing, at a time when no mustcarry rules were in
effect, that approximately 20 percent of cable systems reported
dropping or refusing carriage to one
667
or more local broadcast stations on at least one occasion. See
Cable System Broadcast Signal Carriage Survey, Staff Report by the
Policy and Rules Division, Mass Media Bureau, p. 10 (Sept. 1, 1988)
(Table 2), cited in S. Rep. No. 102-92, at 42-43. The record does
not indicate, however, the time frame within which these drops
occurred, or how many of these stations were dropped for only a
temporary period and then restored to carriage. The same FCC study
indicates that about 23 percent of the cable operators reported
shifting the channel positions of one or more local broadcast
stations, and that, in most cases, the repositioning was done for
"marketing" rather than "technical" reasons.
Id., at 44
(citing Signal Carriage Survey,
supra, at 19, 22 (Tables 10
and 13)).
The parties disagree about the significance of these statistics.
But even if one accepts them as evidence that a large number of
broadcast stations would be dropped or repositioned in the absence
of must-carry, the Government must further demonstrate that
broadcasters so affected would suffer financial difficulties as a
result. Without a more substantial elaboration in the District
Court of the predictive or historical evidence upon which Congress
relied, or the introduction of some additional evidence to
establish that the dropped or repositioned broadcasters would be at
serious risk of financial difficulty, we cannot determine whether
the threat to broadcast television is real enough to overcome the
challenge to the provisions made by these appellants. We think it
significant, for instance, that the parties have not presented any
evidence that local broadcast stations have fallen into bankruptcy,
turned in their broadcast licenses, curtailed their broadcast
operations, or suffered a serious reduction in operating revenues
as a result of their being dropped from, or otherwise disadvantaged
by, cable systems.
The paucity of evidence indicating that broadcast television is
in jeopardy is not the only deficiency in this record. Also lacking
are any findings concerning the actual effects of
668
must-carry on the speech of cable operators and cable
programmers-i.
e., the extent to which cable operators will,
in fact, be forced to make changes in their current or anticipated
programming selections; the degree to which cable programmers will
be dropped from cable systems to make room for local broadcasters;
and the extent to which cable operators can satisfy their
must-carry obligations by devoting previously unused channel
capacity to the carriage of local broadcasters. The answers to
these and perhaps other questions are critical to the narrow
tailoring step of the
O'Brien analysis, for unless we know
the extent to which the must-carry provisions in fact interfere
with protected speech, we cannot say whether they suppress
"substantially more speech than ... necessary" to ensure the
viability of broadcast television.
Ward, 491 U. S., at 799.
Finally, the record fails to provide any judicial findings
concerning the availability and efficacy of "constitutionally
acceptable less restrictive means" of achieving the Government's
asserted interests. See
Sable Communications, supra, at
129.
In sum, because there are genuine issues of material fact still
to be resolved on this record, we hold that the District Court
erred in granting summary judgment in favor of the Government. See
Anderson v.
Liberty Lobby, Inc., 477 U. S. 242, 250
(1986). Because of the unresolved factual questions, the importance
of the issues to the broadcast and cable industries, and the
conflicting conclusions that the parties contend are to be drawn
from the statistics and other evidence presented, we think it
necessary to permit the parties to develop a more thorough factual
record, and to allow the District Court to resolve any factual
disputes remaining, before passing upon the constitutional validity
of the challenged provisions.
The judgment below is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
669
JUSTICE BLACKMUN, concurring.
I join JUSTICE KENNEDY'S opinion, which aptly identifies and
analyzes the First Amendment concerns and principles that should
guide consideration of free speech issues in the expanding cable
industry. I write to emphasize the paramount importance of
according substantial deference to the predictive judgments of
Congress, see,
e. g., Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S. 94, 103 (1973),
particularly where, as here, that legislative body has compiled an
extensive record in the course of reaching its judgment.
Nonetheless, the standard for summary judgment is high, and no less
so when First Amendment values are at stake and the issue is of
farreaching importance. Because in this case there remain a few
unresolved issues of material fact, a remand is appropriate. The
Government had occasion to submit to the District Court only
portions of the record developed by Congress. In light of the
Court's opinion today, those portions, which were submitted to
defeat a motion for summary judgment, are not adequate to support
one. The record before the District Court no doubt will benefit
from any additional evidence the Government and the other parties
now see fit to present.
JUSTICE STEVENS, concurring in part and concurring in the
judgment.
As JUSTICE KENNEDY has ably explained, the "overriding
congressional purpose" of the challenged must-carry provisions of
the 1992 Cable Act is to "guarantee the survival of a medium that
has become a vital part of the Nation's communication system," a
purpose that is "unrelated to the content of expression."
Ante, at 647. The public interests in protecting access to
television for the millions of homes without cable and in assuring
the availability of "a multiplicity of information sources" are
unquestionably substantial.
Ante, at 663. The must-carry
provisions are amply "justi-
670
tied by special characteristics of the cable medium," namely,
"the bottleneck monopoly power exercised by cable operators and the
dangers this power poses to the viability of broadcast television."
Ante, at 661. Cable operators' control of essential
facilities provides a basis for intrusive regulation that would be
inappropriate and perhaps impermissible for other communicative
media.
While I agree with most of JUSTICE KENNEDY'S reasoning, and join
Parts I, II-C, II-D, and III-A of his opinion, I part ways with him
on the appropriate disposition of this case. In my view the
District Court's judgment sustaining the must-carry provisions
should be affirmed. The District Court majority evaluated §§ 4 and
5 as content-neutral regulations of protected speech according to
the same standard that JUSTICE KENNEDY'S opinion instructs it to
apply on remand. In my view, the District Court reached the correct
result the first time around. Economic measures are always subject
to second-guessing; they rest on inevitably provisional and
uncertain forecasts about the future effect of legal rules in
complex conditions. Whether Congress might have accomplished its
goals more efficiently through other means; whether it correctly
interpreted emerging trends in the protean communications industry;
and indeed whether mustcarry is actually imprudent as a matter of
policy will remain matters of debate long after the 1992 Act has
been repealed or replaced by successor legislation. But the
question for us is merely whether
Congress could fairly
conclude that cable operators' monopoly position threatens the
continued viability of broadcast television and that must-carry is
an appropriate means of minimizing that risk.1
1 I have no quarrel with JUSTICE KENNEDY'S general statement
that the question for the reviewing court in a case of this kind is
merely whether "Congress has drawn reasonable inferences based on
substantial evidence," given his caveat that Congress need not
compile or restrict itself to a formal record in the manner
required of a judicial or administrative
671
As JUSTICE KENNEDY recognizes,
ante, at 665-666, findings
by the Congress, particularly those emerging from such sustained
deliberations, merit special respect from this Court.2 Accorded
proper deference, the findings in § 2 are sufficient to sustain the
must-carry provisions against facial attack. Congress' conclusion,
for example, that broadcasters who are denied carriage on cable
systems will suffer serious and potentially terminal economic harm,
see § 2(a)(16), requires no "further demonstration." See
ante, at 667. Because 60% of American households have cable,
and because most cable subscribers rely solely on that medium to
receive video signals, it is a practical certainty that a
broadcaster dropped from the local cable system would suffer
substantial economic harm. It is also clear that cable
operators-particularly (but not exclusively) those affiliated with
cable programmers-have both the ability and the economic incentive
to exploit their gatekeeper status to the detriment of
broadcasters. Thus, even if Congress had had before it no
historical evidence that terminations or refusals of carriage had
already occurred,3 it could reasonably infer that cable operators'
bottleneck control, together with the already high degree of
vertical integration in the industry, would motivate
factfinder.
Ante, at 666. In my view, however,
application of that standard would require affirmance here.
2 As JUSTICE KENNEDY observes,
ibid., we cannot abdicate
our responsibility to decide whether a restriction on speech
violates the First Amendment. But the factual findings accompanying
economic measures that are enacted by Congress itself and that have
only incidental effects on speech merit greater deference than
those supporting content-based restrictions on speech, see
Sable
Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 129
(1989);
Landmark Communications, Inc. v.
Virginia,
435 U. S. 829,
843 (1978) (both cited
ante, at 666), or restrictions
imposed by administrative agencies, see,
e. g., Century
Communications Corp. v.
FCC, 835 F.2d
292, 304 (CADC 1987) (cited
ante, at 666).
3 But see H. R. Rep. No. 102-628, pp. 50-57 (1992); S. Rep. No.
102-92, pp. 43-44 (1991).
672
such conduct in the near future.4 Indeed, the main thrust of the
most pertinent congressional findings is not that cable carriers
have already eliminated broadcast competition on a grand scale, but
that given their market power they may soon do SO.5
An industry need not be in its death throes before Congress may
act to protect it from economic harm threatened by a monopoly. The
mandatory access mechanism that Congress fashioned in §§ 4 and 5 of
the 1992 Act is a simple and direct means of dealing with the
dangers posed by cable operators' exclusive control of what is fast
becoming the preeminent means of transferring video signals to
homes. The must-carry mechanism is analogous to the relief that
might be appropriate for a threatened violation of the antitrust
laws; one need only refer to undisputed facts concerning the
structure of the cable and broadcast industries to agree that that
threat is at least plausible. Moreover, Congress did not have to
find that all broadcasters were at risk before acting to protect
vulnerable ones, for the interest in preserving ac-
4 As Judge Jackson put it in his opinion for the District
Court:
"[E]ven if the state of the broadcasting industry is not now as
parlous as the defendants contend, the Court finds it to be
indisputable on this record that cable operators have attained a
position of dominance in the video signal distribution market, and
can henceforth exercise the attendant market power. The Court does
not find improbable Congress' conclusion that this market power
provides cable operators with both incentive and present ability to
block non-cable programmers' access to the bulk of any prospective
viewing audience; unconstrained, cable holds the future of local
broadcasting at its mercy. In light of the considerable body of
evidence amassed by Congress, and the deference this Court should
accord to the factfinding abilities of the nation's legislature,
the Court must conclude that the danger perceived by Congress is
real and substantial." 819
5 See § 2(a)(16) ("As a result of the economic incentive that
cable systems have to delete, reposition, or not carry local
broadcast signals, ... the economic viability of free local
broadcast television and its ability to originate quality local
programming will be seriously jeopardized"); see also §§ 2(a)(15),
2(a)(17).
673
cess to free television is valid throughout the Nation. Indeed,
the Act is well tailored to assist those broadcasters who are most
in jeopardy. Because thriving commercial broadcasters will likely
avail themselves of the remunerative "retransmission consent"
procedure of § 6, those broadcasters who gain access via the § 4
must-carry route are apt to be the most economically vulnerable
ones. Precisely how often broadcasters will secure carriage through
§ 6 rather than § 4 will depend upon future developments; the very
unpredictability of this and other effects of the new regulatory
scheme militates in favor of allowing the scheme to proceed rather
than requiring a perfectly documented or entirely complete
ex
ante justification.
JUSTICE KENNEDY asks the three-judge panel to take additional
evidence on such matters as whether the must-carry provisions
really respond to threatened harms to broadcasters, whether §§ 4-5
"will in fact alleviate these harms in a direct and material way,"
ante, at 664, and "the extent to which cable operators will,
in fact, be forced to make changes in their current or anticipated
programming selections,"
ante, at 668. While additional
evidence might cast further light on the efficacy and wisdom of the
must-carry provisions, additional evidence is not necessary to
resolve the question of their facial constitutionality.6
To predicate the facial validity of the must-carry provisions
upon forecasts of the ultimate consequences of their implementation
is to ask the District Court to address questions that are not at
present susceptible of reliable answers. Some of the matters the
lead opinion singles out for further
6 The must-carry obligations may be broader than necessary to
protect vulnerable broadcasters, but that would not alone be enough
to demonstrate that they violate the First Amendment. Thus, for
instance, to the extent that §§ 4 and 5 obligate cable operators to
carry broadcasters they would have carried even in the absence of a
statutory obligation, any impairment of operators' freedom of
choice, or on cable programmers' ability to secure carriage, would
be negligible.
674
review-for example, "the degree to which cable programmers will
be dropped from cable systems to make room for local broadcasters,"
ibid.-depend upon predictions about the future voluntary
actions of entities who are parties to this case. At best, a remand
for consideration of such factors will require the District Court
to engage in speculation; it may actually invite the parties to
adjust their conduct in an effort to affect the result of this
litigation (perhaps by opting to drop cable programs rather than
seeking to increase total channel capacity). The must-carry
provisions may ultimately prove an ineffective or needlessly
meddlesome means of achieving Congress' legitimate goals. However,
such a conclusion could be confidently drawn, if ever, only after
the must-carry scheme has been tested by experience. On its face,
that scheme is rationally calculated to redress the dangers that
Congress discerned after its lengthy investigation of the
relationship between the cable and broadcasting industries.
It is thus my view that we should affirm the judgment of the
District Court. Were I to vote to affirm, however, no disposition
of this appeal would command the support of a majority of the
Court. An accommodation is therefore necessary. See
Screws
v.
United States, 325 U. S. 91, 134 (1945)
(Rutledge, J., concurring in result). Accordingly, because I am in
substantial agreement with JUSTICE KENNEDY'S analysis of the case,
I concur in the judgment vacating and remanding for further
proceedings.
JUSTICE O'CONNOR, with whom JUSTICE SCALIA and JUSTICE GINSBURG
join, and with whom JUSTICE THOMAS joins as to Parts I and III,
concurring in part and dissenting in part.
There are only so many channels that any cable system can carry.
If there are fewer channels than programmers who want to use the
system, some programmers will have to be dropped. In the must-carry
provisions of the Cable
675
Television Consumer Protection and Competition Act of 1992, Pub.
L. 102-385, 106 Stat. 1460, Congress made a choice: By reserving a
little over one-third of the channels on a cable system for
broadcasters, it ensured that in most cases it will be a cable
programmer who is dropped and a broadcaster who is retained. The
question presented in this case is whether this choice comports
with the commands of the First Amendment.
I A
The 1992 Cable Act implicates the First Amendment rights of two
classes of speakers. First, it tells cable operators which
programmers they must carry, and keeps cable operators from
carrying others that they might prefer. Though cable operators do
not actually originate most of the programming they show, the Court
correctly holds that they are, for First Amendment purposes,
speakers.
Ante, at 636. Selecting which speech to retransmit
is, as we know from the example of publishing houses, movie
theaters, bookstores, and Reader's Digest, no less communication
than is creating the speech in the first place.
Second, the Act deprives a certain class of video
programmers-those who operate cable channels rather than broadcast
stations-of access to over one-third of an entire medium. Cable
programmers may compete only for those channels that are not set
aside by the must-carry provisions. A cable programmer that might
otherwise have been carried may well be denied access in favor of a
broadcaster that is less appealing to the viewers but is favored by
the mustcarry rules. It is as if the Government ordered all movie
theaters to reserve at least one-third of their screening for films
made by American production companies, or required all bookstores
to devote one-third of their shelf space to nonprofit publishers.
As the Court explains in Parts I, II-A, and II-B of its opinion,
which I join, cable programmers and
676
operators stand in the same position under the First Amendment
as do the more traditional media.
Under the First Amendment, it is normally not within the
government's power to decide who may speak and who may not, at
least on private property or in traditional public fora. The
government does have the power to impose contentneutral time,
place, and manner restrictions, but this is in large part precisely
because such restrictions apply to all speakers. Laws that treat
all speakers equally are relatively poor tools for controlling
public debate, and their very generality creates a substantial
political check that prevents them from being unduly burdensome.
Laws that single out particular speakers are substantially more
dangerous, even when they do not draw explicit content
distinctions. See,
e. g., Minneapolis Star &
Tribune
Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575, 584,
591-592 (1983); see also
Leathers v.
Medlock,
499 U. S. 439,
447 (1991).
I agree with the Court that some speaker-based
restrictions-those genuinely justified without reference to
content-need not be subject to strict scrutiny. But looking at the
statute at issue, I cannot avoid the conclusion that its preference
for broadcasters over cable programmers is justified with reference
to content. The findings, enacted by Congress as § 2 of the Act,
and which I must assume state the justifications for the law, make
this clear. "There is a substantial governmental and First
Amendment interest in promoting a diversity of views provided
through multiple technology media." § 2(a)(6). "[P]ublic television
provides educational and informational programming to the Nation's
citizens, thereby advancing the Government's compelling interest in
educating its citizens." § 2(a)(8)(A). "A primary objective and
benefit of our Nation's system of regulation of television
broadcasting is the local origination of programming. There is a
substantial governmental interest in ensuring its continuation." §
2(a)(10). "Broadcast television stations continue to be an
important source of local news and
677
public affairs programming and other local broadcast services
critical to an informed electorate." § 2(a)(11).
Similar justifications are reflected in the operative provisions
of the Act. In determining whether a broadcast station should be
eligible for must-carry in a particular market, the Federal
Communications Commission (FCC) must "afford particular attention
to the value of localism by taking into account such factors as ...
whether any other [eligible station] provides news coverage of
issues of concern to such community or provides carriage or
coverage of sporting and other events of interest to the
community." §4, 47 U. S. C. § 534(h)(1)(C)(ii) (1988 ed., Supp.
IV). In determining whether a low-power station is eligible for
must-carry, the FCC must ask whether the station "would address
local news and informational needs which are not being adequately
served by full power television broadcast stations." § 4, 47 U. S.
C. § 534(h)(2)(B) (1988 ed., Supp. IV). Moreover, the Act
distinguishes between commercial television stations and
noncommercial educational television stations, giving special
benefits to the latter. Compare § 4 with § 5. These provisions may
all be technically severable from the statute, but they are still
strong evidence of the statute's justifications.
Preferences for diversity of viewpoints, for localism, for
educational programming, and for news and public affairs all make
reference to content. They may not reflect hostility to particular
points of view, or a desire to suppress certain subjects because
they are controversial or offensive. They may be quite benignly
motivated. But benign motivation, we have consistently held, is not
enough to avoid the need for strict scrutiny of content-based
justifications.
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 117
(1991);
Arkansas Writers' Project, Inc. v.
Ragland,
481 U. S. 221,
228 (1987). The First Amendment does more than just bar government
from intentionally suppressing speech of which it disapproves. It
also generally
678
prohibits the government from excepting certain kinds of speech
from regulation because it thinks the speech is especially
valuable. See,
e. g., id., at 231-232;
Regan v.
Time, Inc., 468 U. S. 641, 648-649
(1984);
Metromedia, Inc. v.
San Diego, 453 U. S. 490, 514-515
(1981) (plurality opinion);
Carey v.
Brown, 447 U. S. 455, 466-468
(1980);
Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 96 (1972);
Cox v.
Louisiana, 379 U. S. 536, 581 (1965) (Black,
J., concurring); see also
R. A. v: v.
St. Paul,
505 U. S. 377,
386 (1992) ("The government may not regulate [speech] based on
hostility-or favoritismtowards the underlying message
expressed").
This is why the Court is mistaken in concluding that the
interest in diversity-in "access to a multiplicity" of "diverse and
antagonistic sources,"
ante, at 663 (internal quotation
marks omitted)-is content neutral. Indeed, the interest is not
"related to the
suppression of free expression,"
ante, at 662 (emphasis added and internal quotation marks
omitted), but that is not enough for content neutrality. The
interest in giving a tax break to religious, sports, or
professional magazines, see
Arkansas Writers' Project,
supra, is not related to the suppression of speech; the
interest in giving labor picketers an exemption from a general
picketing ban, see
Carey and
Mosley, supra, is not
related to the suppression of speech. But they are both related to
the
content of speech-to its communicative impact. The
interest in ensuring access to a multiplicity of diverse and
antagonistic sources of information, no matter how praiseworthy, is
directly tied to the content of what the speakers will likely
say.
B
The Court dismisses the findings quoted above by speculating
that they do not reveal a preference for certain kinds of content;
rather, the Court suggests, the findings show "nothing more than
the recognition that the services provided by broadcast television
have some intrinsic value and, thus, are worth preserving against
the threats posed by
679
cable."
Ante, at 648. I cannot agree. It is rare enough
that Congress states, in the body of the statute itself, the
findings underlying its decision. When it does, it is fair to
assume that those findings reflect the basis for the legislative
decision, especially when the thrust of the findings is further
reflected in the rest of the statute. See
Church of Lukumi
Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 534-535
(1993) (relying on recitals in a city council resolution as
evidence of the justifications for an ordinance).
Moreover, it does not seem likely that Congress would make
extensive findings merely to show that broadcast television is
valuable. The controversial judgment at the heart of the statute is
not that broadcast television has some value-obviously it does-but
that broadcasters should be preferred over cable programmers. The
best explanation for the findings, it seems to me, is that they
represent Congress' reasons for adopting this preference; and,
according to the findings, these reasons rest in part on the
content of broadcasters' speech. To say in the face of the findings
that the must-carry rules "impose burdens and confer benefits
without reference to the content of speech,"
ante, at 643,
cannot be correct, especially in light of the care with which we
must normally approach speaker-based restrictions. See
Minneapolis Star &
Tribune Co. v.
Minnesota
Comm'r of Revenue, 460 U. S. 575 (1983).
It may well be that Congress also had other, contentneutral,
purposes in mind when enacting the statute. But we have never held
that the presence of a permissible justification lessens the
impropriety of relying in part on an impermissible justification.
In fact, we have often struck down statutes as being impermissibly
content based even though their primary purpose was indubitably
content neutral. See
Arkansas Writers' Project, Inc., supra
(striking down content-based exemptions in a general revenue
measure);
Regan v.
Time, Inc., supra (striking down
contentbased exemptions in a general anticounterfeiting
statute);
680
Metromedia, Inc. v.
San Diego, supra (plurality
opinion) (striking down on content discrimination grounds a general
urban beautification ordinance);
Carey v.
Brown,
supra, at 466-468 (striking down on content discrimination
grounds an ordinance aimed at preserving residential privacy). Of
course, the mere possibility that a statute might be justified with
reference to content is not enough to make the statute content
based, and neither is evidence that some legislators voted for the
statute for content-based reasons. But when a content-based
justification appears on the statute's face, we cannot ignore it
because another, content-neutral justification is present.
C
Content-based speech restrictions are generally unconstitutional
unless they are narrowly tailored to a compelling state interest.
Boos v.
Barry, 485 U. S. 312, 321
(1988). This is an exacting test. It is not enough that the goals
of the law be legitimate, or reasonable, or even praiseworthy.
There must be some pressing public necessity, some essential value
that has to be preserved; and even then the law must restrict as
little speech as possible to serve the goal.
The interest in localism, either in the dissemination of
opinions held by the listeners' neighbors or in the reporting of
events that have to do with the local community, cannot be
described as "compelling" for the purposes of the compelling state
interest test. It is a legitimate interest, perhaps even an
important one-certainly the government can foster it by, for
instance, providing subsidies from the public fiscbut it does not
rise to the level necessary to justify contentbased speech
restrictions. It is for private speakers and listeners, not for the
government, to decide what fraction of their news and entertainment
ought to be of a local character and what fraction ought to be of a
national (or international) one. And the same is true of the
interest in diversity of viewpoints: While the government may
subsidize speakers that it thinks provide novel points of view, it
may not restrict
681
other speakers on the theory that what they say is more
conventional. Cf.
Metro Broadcasting, Inc. v.
FCC,
497 U. S. 547,
612-613 (1990) (O'CONNOR, J., dissenting);
Pacific Gas &
Elec. Co. v.
Public Util. Comm'n of Cal., 475 U. S. 1, 20 (1986)
(plurality opinion).
The interests in public affairs programming and educational
programming seem somewhat weightier, though it is a difficult
question whether they are compelling enough to justify restricting
other sorts of speech. We have never held that the Government could
impose educational content requirements on, say, newsstands,
bookstores, or movie theaters; and it is not clear that such
requirements would in any event appreciably further the goals of
public education.
But even assuming,
arguendo, that the Government could
set some channels aside for educational or news programming, the
Act is insufficiently tailored to this goal. To benefit the
educational broadcasters, the Act burdens more than just the cable
entertainment programmers. It equally burdens CNN, C-SPAN, the
Discovery Channel, the New Inspirational Network, and other
channels with as much claim as PBS to being educational or related
to public affairs.
Even if the Government can restrict entertainment in order to
benefit supposedly more valuable speech, I do not think the
restriction can extend to other speech that is as valuable as the
speech being benefited. In the rare circumstances where the
government may draw content-based distinctions to serve its goals,
the restrictions must serve the goals a good deal more precisely
than this. See
Arkansas Writers' Project, Inc., 481 U. S.,
at 231-232;
Erznoznik v.
Jacksonville, 422 U. S. 205, 214-215
(1975).
Finally, my conclusion that the must-carry rules are content
based leads me to conclude that they are an impermissible restraint
on the cable operators' editorial discretion as well as on the
cable programmers' speech. For reasons related to the content of
speech, the rules restrict the ability of cable operators to put on
the programming they prefer,
682
and require them to include programming they would rather avoid.
This, it seems to me, puts this case squarely within the rule of
Pacific Gas &
Elec. Co., 475 U. S., at 14-15
(plurality opinion); id., at 23-24 (Marshall, J., concurring in
judgment); see also
Miami Herald Publishing Co. v.
Tornillo, 418
U. S. 241, 257-258 (1974).
II
Even if I am mistaken about the must-carry provisions being
content based, however, in my view they fail contentneutral
scrutiny as well. Assuming,
arguendo, that the provisions
are justified with reference to the content-neutral interests in
fair competition and preservation of free television, they
nonetheless restrict too much speech that does not implicate these
interests.
Sometimes, a cable system's choice to carry a cable programmer
rather than a broadcaster may be motivated by anticompetitive
impulses, or might lead to the broadcaster going out of business.
See
ante, at 661-668. That some speech within a broad
category causes harm, however, does not justify restricting the
whole category. If Congress wants to protect those stations that
are in danger of going out of business, or bar cable operators from
preferring programmers in which the operators have an ownership
stake, it may do that. But it may not, in the course of advancing
these interests, restrict cable operators and programmers in
circumstances where neither of these interests is threatened.
"A regulation is not 'narrowly tailored' -even under the more
lenient [standard applicable to content-neutral restrictionsJ-where
... a substantial portion of the burden on speech does not serve to
advance [the State's contentneutral] goals."
Simon &
Schuster, 502 U. S., at 122, n. (internal quotation marks
omitted). If the government wants to avoid littering, it may ban
littering, but it may not ban all leafleting.
Schneider v.
State (Town of Irvington), 308 U. S. 147 (1939). If
the government wants to avoid fraudulent po-
683
litical fundraising, it may bar the fraud, but it may not in the
process prohibit legitimate fundraising.
Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620 (1980); see
also
Edenfield v.
Fane, 507 U. S. 761, 776-777
(1993). If the government wants to protect householders from
unwanted solicitors, it may enforce "No Soliciting" signs that the
householders put up, but it may not cut off access to homes whose
residents are willing to hear what the solicitors have to say.
Martin v.
City of Struthers, 319 U. S. 141 (1943).
"Broad prophylactic rules in the area of free expression are
suspect. Precision of regulation must be the touchstone .... "
NAACP v.
Button, 371 U. S. 415, 438 (1963)
(citations omitted).
The must-carry provisions are fatally overbroad, even under a
content-neutral analysis: They disadvantage cable programmers even
if the operator has no anticompetitive motives, and even if the
broadcaster that would have to be dropped to make room for the
cable programmer would survive without cable access. None of the
factfinding that the District Court is asked to do on remand will
change this. The Court does not suggest that either the antitrust
interest or the loss of free television interest are implicated in
all, or even most, of the situations in which must-carry makes a
difference. Perhaps on remand the District Court will find out just
how many broadcasters will be jeopardized, but the remedy for this
jeopardy will remain the same: Protect those broadcasters that are
put in danger of bankruptcy, without unnecessarily restricting
cable programmers in markets where free broadcasting will thrive in
any event.
III
Having said all this, it is important to acknowledge one basic
fact: The question is not whether there will be control over who
gets to speak over cable-the question is who will have this
control. Under the FCC's view, the answer is Congress, acting
within relatively broad limits. Under my
684
view, the answer is the cable operator. Most of the time, the
cable operator's decision will be largely dictated by the
preferences of the viewers; but because many cable operators are
indeed monopolists, the viewers' preferences will not always
prevail. Our recognition that cable operators are speakers is
bottomed in large part on the very fact that the cable operator has
editorial discretion.
Ante, at 636-637.
I have no doubt that there is danger in having a single cable
operator decide what millions of subscribers can or cannot watch.
And I have no doubt that Congress can act to relieve this danger.
In other provisions of the Act, Congress has already taken steps to
foster competition among cable systems. § 3(a), 47 U. S. C. §
543(a)(2) (1988 ed., Supp. IV). Congress can encourage the creation
of new media, such as inexpensive satellite broadcasting, or
fiber-optic networks with virtually unlimited channels, or even
simple devices that would let people easily switch from cable to
overthe-air broadcasting. And of course Congress can subsidize
broadcasters that it thinks provide especially valuable
programming.
Congress may also be able to act in more mandatory ways.
If Congress finds that cable operators are leaving some channels
empty-perhaps for ease of future expansion-it can compel the
operators to make the free channels available to programmers who
otherwise would not get carriage. See
PruneYard Shopping
Center v.
Robins, 447 U. S. 74, 88 (1980)
(upholding a compelled access scheme because it did not burden
others' speech). Congress might also conceivably obligate cable
operators to act as common carriers for some of their channels,
with those channels being open to all through some sort of lottery
system or time-sharing arrangement. Setting aside any possible
Takings Clause issues, it stands to reason that if Congress may
demand that telephone companies operate as common carriers, it can
ask the same of cable companies; such an approach would not suffer
from the defect of preferring one speaker to another.
685
But the First Amendment as we understand it today rests on the
premise that it is government power, rather than private power,
that is the main threat to free expression; and as a consequence,
the Amendment imposes substantiallimitations on the Government even
when it is trying to serve concededly praiseworthy goals. Perhaps
Congress can to some extent restrict, even in a content-based
manner, the speech of cable operators and cable programmers. But it
must do so in compliance with the constitutional requirements,
requirements that were not complied with here. Accordingly, I would
reverse the judgment below.
JUSTICE GINSBURG, concurring in part and dissenting in part.
Substantially for the reasons stated by Circuit Judge Williams
in his opinion dissenting from the three-judge District Court's
judgment, 819 F. Supp. 32, 57 (DC 1993), I conclude that Congress'
"must-carry" regime, which requires cable operators to set aside
just over one-third of their channels for local broadcast stations,
reflects an unwarranted contentbased preference and hypothesizes a
risk to local stations that remains imaginary. I therefore concur
in Parts I, II-A, and II-B of the Court's opinion, and join JUSTICE
O'CONNOR'S opinion concurring in part and dissenting in part.
The "must-carry" rules Congress has ordered do not differentiate
on the basis of "viewpoint," and therefore do not fall in the
category of speech regulation that Government must avoid most
assiduously. See
R. A. v: v.
St. Paul, 505 U. S. 377,
430 (1992) (STEVENS, J., concurring in judgment) ("[WJe have
implicitly distinguished between restrictions on expression based
on
subject matter and restrictions based on
viewpoint, indicating that the latter are particularly
pernicious."). The rules, however, do reflect a content preference,
and on that account demand close scrutiny.
The Court has identified as Congress' "overriding objective in
enacting must-carry," the preservation of over-the-air
686
television service for those unwilling or unable to subscribe to
cable, and has remanded the case for further airing centered on
that allegedly overriding, content-neutral purpose.
Ante, at
646-648, 666-668. But an intertwined or even discrete
content-neutral justification does not render speculative, or
reduce to harmless surplus, Congress' evident plan to advance local
programming. See
ante, at 676-677, 679-680 (O'CONNOR, J.,
concurring in part and dissenting in part).
As Circuit Judge Williams stated:
"Congress rested its decision to promote [local broadcast]
stations in part, but quite explicitly, on a finding about their
content-that they were 'an important source of local news and
public affairs programming and other local broadcast services
critical to an informed electorate.'" 819 F. Supp., at 58, quoting
Cable Television Consumer Protection and Competition Act of 1992, §
2(a)(1l).
Moreover, as Judge Williams persuasively explained, "[the] facts
do not support an inference that over-the-air TV is at risk," 819
F. Supp., at 63, see id., at 62-65; "[w]hatever risk there may be
in the abstract has completely failed to materialize."
Id.,
at 63. "The paucity of evidence indicating that broadcast
television is in jeopardy," see
ante, at 667, if it persists
on remand, should impel an ultimate judgment for the
appellants.
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