Document ID: A:\TURNER2.TXT TURNER BROADCASTING SYSTEM, INC., ET AL., APPELLANTS v. FEDERAL COMMUNICATIONS COMMISSION ET AL. No. 93-44 SUPREME COURT OF THE UNITED STATES 114 S. Ct. 2445; 1994 U.S. LEXIS 4831; 129 L. Ed. 2d 497; 62 U.S.L.W. 4647 January 12, 1994, Argued June 27, 1994, Decided NOTICE: [*1] The LEXIS pagination of this document is subject to change pending release of the final pu PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBI DISPOSITION: 819 F. Supp. 32, vacated and remanded. SYLLABUS: Concerned that a competitive imbalance between cable television and over-the-air broadcast mer Protection and Competition Act of 1992. Sections 4 and 5 of the Act require cable tele appellants, numerous cable programmers and operators, challenged the constitutionality of with the First Amendment. The court rejected appellants' argument that the provisions war , 20 L. Ed. 2d 672, 88 S. Ct. 1673, concluding that they are sufficiently tailored to serv 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, content-neutral restrictions that impose an incidental burden on speech. Pp. 11-41. (a) Because the must-carry provisions impose special obligations upon cable operators and gulation, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. in the context of cable. Nor is the mere assertion of dysfunction or failure in the cable generally applicable law against members of the press may sometimes warrant only rational ned scrutiny. Pp. 11-16. (b) The must-carry rules are content-neutral, and thus are not subject to strict scrutiny. it their messages to viewers, not the messages they carry. [*4] The purposes underlyin ess to free television programming for the 40 percent of Americans without cable. The chal 's communications structure does not indicate that Congress regarded broadcast programming d are worth preserving against the threats posed by cable. It is also incorrect to suggest ral Communications Commission and Congress influence the programming offered by broadcast (c) None of appellants' additional arguments suffices to require strict scrutiny in this c s to alter their own messages to respond to the broadcast programming they must carry. In ivered into subscribers' homes. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 crutiny is also not triggered by Congress' preference for broadcasters over cable operator warranted by the fact that the provisions single out certain members of the press--here, c ators' bottleneck monopoly and the dangers this power poses to the viability of broadcast iters' Project, Inc. v. Ragland, 481 U.S. 221, 95 L. Ed. 2d 209, 107 S. Ct. 1722, and Minn (d) Under O'Brien, a content-neutral regulation will be sustained if it furthers an import an is essential to the furtherance of that interest. Viewed in the abstract, each of the g multiplicity of sources, and promoting [*7] fair competition in the market for televisio JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE SOUTER, conclu erests. The Government must demonstrate that the recited harms are real, not merely conjec local broadcasting is in genuine jeopardy and in need of the protections afforded by must cessary to further such interests. On the state of the record developed, and in the absenc aterial fact still to be resolved on this record, the District Court erred in granting sum JUSTICE STEVENS, though favoring affirmance, concurred in the judgment because otherwise n JUDGES: KENNEDY, J., announced the judgment of the Court and delivered the opinion for a u R, THOMAS, and GINSBURG, JJ., joined, the opinion of the Court with respect to Parts II-C, d BLACKMUN and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion. STEVENS, J., NSBURG, JJ., joined, and in Parts I and III of which THOMAS, J., joined. GINSBURG, J., fil OPINIONBY: KENNEDY OPINION: [*9] JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Co Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 199 whether these provisions abridge the freedom of speech or of the press, in violation of th The United States District Court for the District of Columbia granted summary judgment d as developed thus far, we vacate the District Court's judgment and remand the case for f I A The role of cable television in the Nation's communications system has undergone dramat stry today stands at the center of an ongoing telecommunications revolution with still und The earliest cable systems were built in the late 1940's to bring clear broadcast telev ., 392 U.S. 157, 161-164, 20 L. Ed. 2d 1001, 88 S. Ct. 1994 (1968); D. Brenner, M. Price, the reception of nearby broadcast television stations. With the capacity to carry dozens s an independent source of television programming. Broadcast and cable television are distinguished by the different technologies through 11] television set within the antenna's range. Cable systems, by contrast, rely upon a p lephone companies, using cable or optical fibers strung aboveground or buried in ducts to s in the disruption of traffic on streets and other public property. As a result, the cabl 1370, 1377-1378 (CA10 1981). Cable technology affords two principal benefits over broadcast. First, it eliminates th transmitting many more channels than are available through broadcasting, giving subscribe 4 Television and Cable Factbook I-69. And about 40 percent of cable subscribers are served rebuilds and digital compression technology to increase channel capacity. See, e.g., Cable The cable television industry includes both cable operators (those who own the physical . In some cases, cable operators have acquired ownership of cable programmers, and vice ve ly local or distant broadcast stations, but also the many national and regional cable prog ertainment Television, CourtTV, The Discovery Channel, American Movie Classics, Comedy Cen it for the speech of others, transmitting it on a continuous and unedited basis to subscri ovided by cable networks. . . . Cable systems have no conscious control over program servi In contrast to commercial broadcast stations, which transmit signals at no charge to vi esser extent on advertising. In most instances, cable subscribers choose the stations they us a number of cable programming networks selected by the cable operator. For an additiona explicit programming, and the like. Many cable systems also offer pay-per-view service, wh and Business Aspects of Cable and Pay Television @ 5.05[2] (1989); Brenner, supra, at 334 B On October 5, 1992, Congress overrode a Presidential veto to enact the Cable Television rate regulation by the Federal Communications Commission (FCC) and by municipal franchisi [*15] with cable operators; and directs the FCC to develop and promulgate regulations d 5 of the Act, which require cable operators to carry the signals of a specified number o Section 4 requires carriage of "local commercial television stations," defined to inclu ket as the cable system. @ 4, 47 U.S.C. @@ 534(b)(1)(B), (h)(1)(A) (1988 ed., Supp. IV). n t stations that request carriage. @ 534(b)(1)(B). Cable systems with more than 300 subscri - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Although a cable system's local television market is defined by regulation, see 47 C ct @ 4, 47 U.S.C. @ 534(h)(1)(C) (1988 ed., Supp. IV). [*16] n2 If there are not enough local full power commercial broadcast stations to fill the o of them. See @ 534(c)(1); see also @ 534(h)(2) (defining "qualified low power station"). operate only if they do not interfere with the signals of full power broadcast stations. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - If there are fewer broadcasters requesting carriage than slots made available under the ilable, the cable operator is permitted to choose which of these stations it will carry. @ me numerical [*17] channel position as when broadcast over the air. @ 534(b)(6). Furthe - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Cabl arried on the system. @ 534(b)(5); see also In re Implementation of the Cable Television C ap in programming). Nor are they required to carry the signals of more than one station af dited with those stations for purposes of its must-carry obligations. @ 534(b)(5). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Section 5 of the Act imposes similar [*18] requirements regarding the carriage of lo 4 A cable system with 12 or fewer channels must carry one of these stations; a system of b e. @@ 535(b)(2)(A), (b)(3)(A), (b)(3)(D). The Act requires a cable operator to import dist s with commercial broadcast stations, @ 5 requires cable system operators to carry the pro - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 "Noncommercial educational television stations" are defined to include broadcast sta ceive grants from the Corporation for Public Broadcasting; or (2) owned and operated by a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*19] Taken together, therefore, @@ 4 and 5 subject all but the smallest cable systems nation em. C Congress enacted the 1992 Cable Act after conducting three years of hearings on the str conclusions Congress drew from its factfinding process are recited in the text of the Act c power in the cable industry, are endangering the ability of over-the-air broadcast telev as necessary to correct this competitive imbalance. In particular, Congress found that over 60 percent of the households with television se . @ 2(a)(17). This is so, Congress found, because "most subscribers to cable television sy ystem, or cannot otherwise receive broadcast television services." Ibid. In addition, Cong geographic area," the overwhelming majority of cable operators exercise a monopoly over ca d. According to Congress, this market position gives cable operators the power and the inc the broadcast signal, refuse to carry new signals, or reposition [*21] a broadcast sig ons increasingly compete for television advertising revenues." @ 2(a)(14). By refusing car ereby 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 rs. @ 2(a)(5). Congress also determined that the cable industry is characterized by horizo mber of media voices available to consumers." @ 2(a)(4). In light of these technological and economic conditions, Congress concluded that unless leted, repositioned, or not carried," @ 2(a)(15); the "marked shift in market share" from "the economic viability of free local broadcast television and its ability to originate qu D Soon after the Act became law, appellants filed these five consolidated actions in the s the Government), challenging the constitutionality of the must-carry provisions. Appella @ 2284 to hear the actions. 1992 Cable Act @ 23, 47 U.S.C. @ 555 (c)(1) [*23] (1988 e filed a cross-motion to dismiss. Although the Government had not asked for summary judgme visions are consistent with the First Amendment. 819 F. Supp. 32 (DC 1993). The court found that in enacting the must-carry provisions, Congress employed "its regu itrust and fair trade practice regulatory legislation," ibid., and said that the must-carr ators' anti-competitive practices." Ibid. The court rejected appellants' contention that t in intent as well as form, unrelated (in all but the most recondite sense) to the content isions under the intermediate standard of scrutiny set forth in United States v. O'Brien, t-carry provisions are sufficiently tailored to serve that interest. 819 F. Supp., at 45-4 Judge Williams dissented. He acknowledged the "very real problem" that "cable systems c nly to broadcast television stations. In his view, the must-carry rules are content based, ision to grant favorable access to broadcast programmers rested "in part, but quite explic uate to justify it. While assuming "as an abstract matter" that the interest in preserving y tailored to the asserted interest in programming diversity because cable operators "now e livelihoods depend largely on satisfying audience demand--with a mix derived from congre This direct appeal followed, see @ 23, 47 U.S.C. @ 555 [*26] (c)(1) (1988 ed., Supp. II There can be no disagreement on an initial premise: Cable programmers and cable operato 9, 444, 113 L. Ed. 2d 494, 111 S. Ct. 1438 (1991). Through "original programming or by exe ariety of topics and in a wide variety of formats." Los Angeles v. Preferred Communication must-carry rules regulate cable speech in two respects: The rules reduce the number of ch d channels remaining. Nevertheless, because not every interference with speech triggers th A We address first the Government's contention that regulation of cable television should lation of broadcast speakers than of speakers in other media. Compare Red Lion Broadcastin Ct. 997 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L. (personal solicitation). But the rationale for applying a less rigorous standard of First The justification for our distinct approach to broadcast regulation rests upon the uniq pra, at 388-389, 396-399; National Broadcasting Co., 319 U.S., at 226. As a general matter frequency in the same locale, they would interfere with one another's signals, so that nei ectromagnetic spectrum and assign specific frequencies to particular broadcasters. See FCC a scarce resource [that] must be portioned out among applicants") (internal quotation mark n on the number of speakers who may use the broadcast medium has been thought to require s roadcast licensees. Red Lion, 395 U.S., at 390. As we said in Red Lion, "where there are s roadcast comparable to the right of every individual to speak, write, or publish." Id., at Although courts and commentators have criticized the scarcity rationale since its incep d see no reason to do so here. The broadcast cases are inapposite in the present context b gital compression technology, soon there may be no practical limitation on the number of s ight of these fundamental technological differences between broadcast and cable transmissi cable regulation. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74, 77 L. Ed. 2d translate into a justification for regulation of other means of communication") (footnote - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 See, e.g., Telecommunications Research and Action Center v. FCC, 255 U.S. App. D.C. First Amendment 197-209 (1987); M. Spitzer, Seven Dirty Words and Six Other Stories 7-18 ( -Part I: Why Can't Cable Be More Like Broadcasting?, 46 Md. L. Rev. 212, 218-240 (1987); C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*32] This is not to say that the unique physical characteristics of cable transmission shoul l characteristics may have in the evaluation of particular cable regulations, they do not Although the Government acknowledges the substantial technological differences between the foundation of our broadcast jurisprudence is not the physical limitations of the elec vernment maintains, the Red Lion standard of review should also apply to cable. While we a al [*33] characteristics of broadcast transmission, not the economic characteristics of t 99; Red Lion, supra, at 390. Second, the mere assertion of dysfunction or failure in a spe ichigan Chamber of Commerce, 494 U.S. 652, 657-658, 108 L. Ed. 2d 652, 110 S. Ct. 1391 (19 Tornillo, 418 U.S., at 248-258. By a related course of reasoning, the Government and some appellees maintain that the m verning legislative efforts to correct market failure in a market whose commodity is speec 2, 72 S. Ct. 181 (1951). See Brief for Federal Appellees 17. This contention is unavailing hile the enforcement of a generally applicable law may or may not be subject to heightened c., 501 U.S. 560, 566-567, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991), [*35] laws that s 481 U.S. 221, 228, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987), and so are always subject to hallenge, the rule of rationality which will sustain legislation against other constitutio rdens upon cable programmers, some measure of heightened First Amendment scrutiny is deman B At the heart of the First Amendment lies the principle that each person should decide f See Leathers v. Medlock, 499 U.S., at 449 (citing Cohen v. California, 403 U.S. 15, 24, 2 hat stifles speech on account of its message, or that requires the utterance of a particul e regulatory goal, but to suppress unpopular ideas or information or manipulate the public marketplace." Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., For these reasons, the First Amendment, [*37] subject only to narrow and well-under 992) (slip op., at 4); Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct. ts content. See Simon & Schuster, 502 U.S., at (slip op., at 11); id., at (KENNEDY ws that compel speakers to utter or distribute speech bearing a particular message are sub In contrast, regulations that are unrelated to the content of speech are subject to an in ey pose a less substantial risk of excising certain ideas or viewpoints from the public di Deciding whether a particular regulation is content-based or content-neutral is not alw use of [agreement or] disagreement with the message it conveys." Ward v. Rock Against Raci hostility--or favoritism--towards the underlying message expressed"). The purpose, or jus e a content-based purpose may be sufficient in certain circumstances to show that a regula the sine qua non of a violation of the First Amendment'") (quoting Minneapolis Star & Tri ough to save a law which, on its face, discriminates based on content. Arkansas Writers' P As a general rule, laws that by their terms distinguish favored speech from disfavored may exercise their free-speech rights near polling places [*40] depends entirely on whe unicipal ordinance permits individuals to "picket in front of a foreign embassy depends en ference to the ideas or views expressed are in most instances content-neutral. See, e.g. C c property "is neutral--indeed it is silent--concerning any speaker's point of view"); Hef s and solicitations take place at designated locations [*41] "applies evenhandedly to a C Insofar as they pertain to the carriage of full power broadcasters, the must-carry rule discretion by compelling them to offer carriage to a certain minimum number of broadcast those with fewer than 300 subscribers, regardless of the programs or stations they now off ected or will select. The number of channels a cable operator must set aside depends only the Act by altering the programming it offers [*42] to subscribers. Cf. Miami Herald P - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The must-carry rules also require carriage, under certain limited circumstances, of he FCC determines that the station's programming "would address local news and information w power station's community of license." @ 534(h)(2)(B). We recognize that this aspect of cular provisions are content-based, and because the parties make only the most glancing re ral 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 u ible broadcast stations. In acting upon these requests, the FCC is directed to give "atten of sporting and other events of interest to the community." @ 534(h)(1)(C)(ii). Again, th - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*43] The must-carry provisions also burden cable programmers by reducing the number of chann to offer viewers. Cf. Boos, supra, at 319 (individuals may picket in front of a foreign em d to content. The rules benefit all full power broadcasters who request carriage--be they every full power commercial and noncommercial broadcaster eligible for must-carry, provide It is true that the must-carry provisions distinguish between speakers in the televisio Broadcasters, which transmit over the airwaves, are favored, while cable programmers, whic are not a subtle means of exercising a content preference, speaker distinctions of this na That the must-carry provisions, on their face, do not burden or benefit speech of a par ulate speech because of the message it conveys. United States v. Eichman, 496 U.S. 310, 31 is nevertheless clear that the Government's asserted interest is related to the suppressio olence, 468 U.S., at 293; cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S , Appellants contend, in this regard, that the must-carry regulations are content-based b at Congress' overriding objective in enacting must-carry was not to favor programming of a In unusually detailed statutory findings, supra, at 7-9, Congress explained that becaus ing their affiliated programmers over broadcast stations, @ 2(a)(5), cable operators have that cable systems carry the signals of local broadcast stations, the continued availabili mming is . . . free to those who own television sets and do not require cable transmission television programming, especially for viewers who are unable to afford other means of re By preventing cable operators from refusing carriage to broadcast television stations, f noncommercial broadcasters, sufficient viewer contributions, see @ 2(a)(8)(B)--to mainta mmunication system, and to ensure that every individual with a television set can obtain a This overriding congressional purpose is unrelated to the content of expression dissemi to competition from cable systems," is not only a permissible governmental justification, ed States v. Midwest Video Corp., 406 U.S. 649, 661-662, 664, 32 L. Ed. 2d 390, 92 S. Ct. The design and operation of the challenged provisions confirm that the purposes underly [*48] irrespective of the content of their programming. They do not require or prohibi mpel cable operators to affirm points of view with which they disagree. They do not produc -carry requirements. Appellants and the dissent make much of the fact that, in the course of describing the local news[,] public affairs programming and other local broadcast services critical to an s." @ 2(a)(8). We do not think, however, that such references cast any material doubt on t s have played in educating the public does not indicate that Congress regarded broadcast p e intrinsic value and, thus, are worth preserving against the threats posed by cable. See the cable programmers who service a given geographic market audience"). The operation of the Act further undermines the suggestion that Congress' purpose in en dcasters irrespective of the nature of their programming. In fact, if a cable system were - or [*50] education-oriented programming with a broadcaster that provides very little. A t 449 (state law imposing tax upon cable television, but exempting other media, is not con newspapers, or magazines"). In short, Congress' acknowledgment that broadcast television stations make a valuable c r, in our view, that Congress designed the must-carry provisions not to promote speech of especially those unable to subscribe to cable, have access to free television programming We likewise reject the suggestion, advanced by appellants and by Judge Williams in diss is true that broadcast programming, unlike cable programming, is subject to certain limite ns of ensuring that particular programs will be shown, or not shown, on cable systems. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 See, of children"); Pub. L. 102-356, @ 16(a), 106 Stat. 954, note following 47 U.S.C. @ 303 (1 easonable access to broadcast airtime for candidates seeking federal elective office); 47 ogramming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960) (requiring broadcasters to air program - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*52] As an initial matter, the argument exaggerates the extent to which the FCC is permitted ation "which shall interfere with the [broadcasters'] right of free speech." 47 U.S.C. @ 3 [@ 326] from interfering with the free exercise of journalistic judgment." Hubbard Broadc ing that must be offered by broadcast stations; for although "the Commission may inquire o e public ought to hear." Network Programming Inquiry, Report and Statement of Policy, 25 F r grounds sub nom. Action for Children's Television v. FCC, 261 U.S. App. D.C. 253, 821 F. Stations licensed to broadcast over the special frequencies reserved for "noncommercial sis, may not accept financial consideration in exchange for particular programming, and ma . C. C. 2d 746, 751 (1984); Educational Broadcast Stations, 90 F. C. C. 2d 895 (1982), mod [*54] any specific quantity of "educational" programming or any particular "educationa st, convenience or necessity." En Banc Programming Inquiry, 44 F. C. C. 2d 2303, 2312 (196 run the collateral risk of stifling the creativity and innovative potential of these stati 0 F. C. C. 2d 948 (1979). In addition, although federal funding provided through the Corporation for Public Broad isions. See 47 U.S.C. @@ 396 [*55] (g)(1)(D) (directing CPB to "carry out its purposes nterference with, or control of, program content or other activities"), @ 398(a) (CPB oper Indeed, our cases have recognized that Government regulation over the content of broadc U.S., at 378-380, 386-392 (invalidating under the First Amendment statute forbidding any tee, 412 U.S., at 126 (describing "the risk of an enlargement of Government control over t FCC and Congress actually influence the programming offered by broadcast stations, it wou re Congress or the FCC exercised more intrusive control over the content of broadcast prog In short, the must-carry provisions are not designed to favor or disadvantage speech of the provisions, Congress sought to preserve the existing structure of the Nation's broadca available as a source of video programming for those without cable. Appellants' ability to must-carry. Cf. Arizona v. California, 283 U.S. 423, 455-457, 75 L. Ed. 1154, 51 S. Ct. 52 ed illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383, 20 L. Ed. 2d D Appellants advance three additional arguments to support their view that the must-carry e programmers, and (3) single out certain members of the press for disfavored treatment. N 1 Appellants maintain that the must-carry provisions trigger strict scrutiny because they co Ct. 2831 (1974), appellants say this intrusion on the editorial control of cable operators Tornillo affirmed an essential proposition: The First Amendment protects the editorial est by the candidate and without cost, the candidate's reply in equal space and prominence d an impermissible content-based burden on newspaper speech. Because the right of access a content." 418 U.S., at 256. We found, and continue to recognize, that right-of-reply stat We explained that, in practical effect, Florida's right-of-reply statute would deter ne "Faced with the penalties that would accrue to any newspaper that published news or com ation of the Florida statute, political and electoral coverage would be blunted or reduced Moreover, by affording mandatory access to speakers with which the newspaper disagreed, th tilities Comm'n of Cal., 475 U.S. 1, 11, 89 L. Ed. 2d 1, 106 S. Ct. 903 (1986) (plurality The same principles led us to invalidate a similar content-based access regulation in P shed by a consumer group critical of the utility's ratemaking practices. Although the acce the same strict First Amendment scrutiny applied. Like the statute in Tornillo, the regula bserved that in order to avoid the appearance that it agreed with the group's views, the u "kind of forced response," the plurality explained, "is antithetical to the free discussi Tornillo and Pacific Gas & Electric do not control this case for the following reasons. spoken by cable operators and thus exact no content-based penalty. Cf. Riley v. National ccess to broadcasters on the ground that the content of broadcast programming will counter c Gas & Electric, supra, at 14 [*62] (access "awarded only to those who disagree with a Second, appellants do not suggest, nor do we think it the case, that must-carry will fo Expression, 1988 Duke L. J., at 379 ("Other than adding new ideas--offensive, insightful o there appears little risk that cable viewers would assume that the broadcast stations car st once every hour, 47 CFR @ 73.1201 (1993), and it is a common practice for broadcasters 7, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980) [*63] (noting that the views expressed by s ue in Tornillo, no aspect of the must-carry provisions would cause a cable operator or cab Finally, the asserted analogy to Tornillo ignores an important technological difference ses far greater control over access to the relevant medium. A daily newspaper, no matter h ly newspapers published in other cities. Thus, when a newspaper asserts exclusive control The same is not true of cable. When an individual subscribes to cable, the physical con ming that is channeled into the subscriber's home. Hence, simply by virtue of its ownershi r, unlike speakers in other media, can thus silence the voice of competing speakers with a - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 As one commentator has observed: "The central dilemma of cable is that it has unlimi e system is itself a publisher, it may restrict the circumstances under which it allows ot - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*65] The potential for abuse of this private power over a central avenue of communication ca assessed for First Amendment purposes by standards suited to it, for each may present its ate interests not restrict, through physical control of a critical pathway of communicatio s & 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 favo ble programmers who would have secured carriage in the absence of must-carry may now be dr er the First Amendment because the government may not "restrict the speech of some element To the extent appellants' argument rests on the view that all regulations distinguishin aw prohibiting individuals from spending more than $ 1,000 per year to support or oppose a f elections." Buckley, 424 U.S., at 48. We rejected [*67] that argument with the observ iety." Id., at 49, n. 55. Our holding in Buckley does not support appellants' broad assertion that all speaker-pa or the substance of what the favored speakers have to say (or aversion to what the disfavo challenge to differential tax treatment of veterans groups and other charitable organizat that effect"). Because the expenditure limit in Buckley was designed to ensure that [*68] Buckley, supra, at 17 ("it is beyond dispute that the interest in regulating the . . . giv 382). Indeed, were the expenditure limitation unrelated to the content of expression, the stands for the proposition that laws favoring some speakers over others demand strict scru The question here is whether Congress preferred broadcasters over cable programmers bas oadcast stations on the belief that the broadcast television industry is in economic peril ters 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 provision pport, appellants point out that Congress has required cable operators to provide carriage te master antenna television (SMATV) systems. Relying upon our precedents invalidating dis s Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 75 L. Ed. 2d 295, 103 S es 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 wspapers. We subjected the tax to strict scrutiny for two reasons: first, because it appli o Grosjean, supra (invalidating Louisiana tax on publications with weekly circulations abo ed to general interest magazines but exempted religious, professional, trade, and sports m nated on the basis of subject matter. Arkansas Writers' Project, supra, at 229-230. Relyin It would be error to conclude, however, that the First Amendment mandates strict scruti 8 (1991), for example, we upheld against First Amendment challenge the application of a ge ers illustrates, the fact that [*72] a law singles out a certain medium, or even the pre circumstances." Id., at 444. The taxes invalidated in Minneapolis Star and Arkansas Writer that an illicit governmental motive was behind either of the taxes, both were structured Star, 460 U.S., at 585. But such heightened scrutiny is unwarranted when the differential The must-carry provisions, as we have explained above, are justified by special charact ppellants do not argue, nor does it appear, that other media--in particular, media that tr t should come as no surprise, then, that Congress decided to impose the must-carry obligat In addition, the must-carry provisions are not structured in a manner that carries the ct few. See 47 U.S.C. @ 534(b)(1) (1988 ed., Supp. IV) (only cable systems with fewer than 4] narrowly targeted regulations in Minneapolis Star and Arkansas Writers' Project. For tems "offering a wide variety of programming" because the tax was not "likely to stifle th III A In sum, the must-carry provisions do not pose such inherent dangers to free expression, ct Court that the appropriate standard by which to evaluate the constitutionality of must- 91 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989); United States v. O'Brien, 391 U.S. Under O'Brien, a content-neutral regulation will be sustained if "it furthers an important or substantial governmental interest; if the governmental intere urtherance of that interest." Id., at 377. To satisfy this standard, a regulation need not be the least speech-restrictive means of a erest that would be achieved less effectively absent the regulation.'" Ward, supra, at 799 he means chosen do not "burden substantially more speech than is necessary to further the Congress declared that the must-carry [*76] provisions serve three interrelated inte sources, and (3) promoting fair competition in the market for television programming. S. of free expression," O'Brien, 391 U.S., at 377, or to the content of any speakers' messag In the Communications Act of 1934, Congress created a system of free broadcast service t. 1083, 47 U.S.C. @ 307(b). Congress designed this system of allocation to afford each co e Co., 392 U.S. 157, 173-174, 20 L. Ed. 2d 1001, 88 S. Ct. 1994 (1968); Wollenberg, The FC we recognized in Southwestern Cable, supra, the importance of local broadcasting outlets " at 177. The interest in maintaining the local broadcasting structure does not evaporate si households still rely on broadcast stations as their exclusive source of television progr ompetition 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 tions policy that "the widest possible dissemination of information from diverse and antag ress v. United States, 326 U.S., at 20); see also FCC v. WNCN Listeners Guild, 450 U.S. 58 nally, the [*79] Government's interest in eliminating restraints on fair competition is Lorain Journal Co. v. United States, 342 U.S. 143, 96 L. Ed. 162, 72 S. Ct. 181 (1951); A B That the Government's asserted interests are important in the abstract does not mean, h t anticipated harms, it must do more than simply "posit the existence of the disease sough t merely conjectural, and that the regulation will in fact alleviate these harms in a dire may not simply assume that the ordinance will always advance the asserted state interests , 36 (CADC 1977) ("[A] 'regulation perfectly reasonable and appropriate in the face of a g Thus, in applying O'Brien scrutiny we must ask first whether the Government has adequat to the foregoing question, the Government still bears the burden of showing that the reme the state of the record developed thus far, and in the absence of findings of fact from t In defending the factual necessity for must-carry, the Government relies in principal part a)(16). See Brief for Federal Appellees 31-32. The Government contends that this finding, between two technical, rapidly changing, and closely interdependent industries--broadcast We agree that courts must accord substantial deference to the predictive judgments of C gment of the Legislative Branch" should not be ignored "simply because [appellants] cast [ t of these events based on deductions and inferences for which complete empirical support 81 S. Ct. 435 (1961). As an institution, moreover, Congress is far better equipped than t tion Survivors, 473 U.S. 305, 331 n. 12, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985). And Con . That Congress' predictive judgments are entitled to substantial deference does not mean to legislative findings does "not foreclose our independent judgment of the facts bearing ications, Inc. v. Virginia, 435 U.S. 829, 843, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978). This tual predictions with our own. Rather, it is to assure that, in formulating its judgments, 7) [*84] ("When trenching on first amendment interests, even incidentally, the governme The Government's assertion that the must-carry rules are necessary to protect the viabi roadcast stations will be refused carriage on cable systems; and (2) that the broadcast st As support for the first proposition, the Government relies upon a 1988 FCC study showi adcast stations on at least one occasion. See Cable System Broadcast Signal Carriage Surve ate, however, the time frame within which these drops occurred, or how many [*85] of th ed shifting the channel positions of one or more local broadcast stations, and that, in mo The parties disagree about the significance of these statistics. But even if one accept hat broadcasters so affected would suffer financial difficulties as a result. Without a mo to establish that the dropped or repositioned broadcasters would be at serious risk of fi s. [*86] We think it significant, for instance, that the parties have not presented an reduction in operating revenues as a result of their being dropped from, or otherwise dis The paucity of evidence indicating that broadcast television is in jeopardy is not the ., the extent to which cable operators will, in fact, be forced to make changes in their c xtent to which cable operators can satisfy their must-carry obligations by devoting previo O'Brien analysis, for unless we know the extent to which the must-carry [*87] provisio television. Ward, 491 U.S., at 799. Finally, the record fails to provide any judicial fin mmunications, 492 U.S., at 129. In sum, because there are genuine issues of material fact still to be resolved on this Ed. 2d 202, 106 S. Ct. 2505 (1986). Because of the unresolved factual questions, the impor dence presented, we think it necessary to permit [*88] the parties to develop a more th rovisions. The judgment below is vacated, and the case is remanded for further proceedings consist It is so ordered. CONCURBY: BLACKMUN; STEVENS (In Part); O'CONNOR (In Part); GINSBURG (In Part) CONCUR: JUSTICE BLACKMUN, concurring. I join JUSTICE KENNEDY's opinion, which aptly identifies and analyzes the First Amendme cording substantial deference to the predictive judgments of Congress, see, e.g., Columbia body has compiled an extensive record in the course of reaching its judgment. Nonetheless this case there remain a few unresolved issues of material fact, a remand is appropriate. , which were submitted to defeat a motion for summary judgment, are not adequate to suppor JUSTICE STEVENS, concurring in part and concurring in the judgment. As JUSTICE KENNEDY has ably explained, the "overriding congressional purpose" of the ch purpose that is "unrelated to the content of expression." Ante, at 22. The public interest onably substantial. Ante, at 39-40. The must-carry provisions [*90] are amply "justifie ity of broadcast television." Ante, at 37. Cable operators' control of essential facilitie While I agree with most of JUSTICE KENNEDY's reasoning, and join Parts I, II(C), II(D), isions should be affirmed. The District Court majority evaluated @@ 4and 5 as content-neut ched the correct result the first time around. Economic measures are always subject to sec ccomplished its goals more efficiently [*91] through other means; whether it correctly debate long after the 1992 Act has been repealed or replaced by successor legislation. But on and that must-carry is an appropriate means of minimizing that risk. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 I have no quarrel with JUSTICE KENNEDY's general statement that the question for the ed not compile or restrict itself to a formal record in the manner required of a judicial - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As JUSTICE KENNEDY [*92] recognizes, ante, at 41-42, findings by the Congress, parti sustain the must-carry provisions against facial attack. Congress's conclusion, for exampl tration." See id., at 44. Because 60% of American households have cable, and because most r substantial economic harm. It is also clear that cable operators--particularly (but not sters. Thus, even if Congress had had before it no historical evidence that terminations o f vertical integration in the industry, would motivate such conduct in the near future. n4 that given their market power they may soon do so. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 As JUSTICE KENNEDY observes, ante, at 42-43, we cannot abdicate our responsibility t d that have only incidental effects on speech merit greater deference than those supportin . Virginia, 435 U.S. 829, 843, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978) (both cited ante, at , at 42-43). [*94] n3 But see H.R. Rep. No. 628, 102 Cong., 2d Sess. 50-57 (1992); Sen. Rep. No. 92, 102d n4 As Judge Jackson put it in his opinion for district court: "Even if the state of the broadcasting industry is not now as parlous as the defendants co e the attendant market power. The Court does not find improbable Congress' conclusion that programmers' access to the bulk of any prospective viewing audience; unconstrained, cable the factfinding abilities of the nation's legislature, . . . the Court must conclude that n5 See @ 2(a)(16) ("As a result of the economic incentive that cable systems have to de ing will be seriously jeopardized."); see also @ 2(a)(15), @ 2(a)(17). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*95] An industry need not be in its death throes before Congress may act to protect it from with the dangers posed by cable operators' exclusive control of what is fast becoming the the antitrust laws; one need only refer to undisputed facts concerning the structure of th cting to protect vulnerable ones, for the interest in preserving access to free television l likely avail themselves of the remunerative "retransmission consent" procedure of @ 6, t cure carriage through @ 6 rather than @ 4 will depend upon future developments; the very u ted or entirely complete ex ante justification. JUSTICE KENNEDY asks the three-judge panel to take additional evidence on such matters way," ante, at 41, and "the extent to which cable operators will, in fact, be forced to ma ust-carry provisions, additional evidence is not necessary to resolve the question of thei - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The must-carry obligations may be broader than necessary to protect vulnerable broad erators to carry broadcasters they would have carried even in the absence of a statutory o - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*97] To predicate the facial validity of the must-carry provisions upon forecasts of the ult ters the lead opinion singles out for further review--for example, "the degree to which ca ntities who are parties to this case. At best, a remand for consideration of such factors tion (perhaps by opting to drop cable programs rather than seeking to increase total chann onclusion could be confidently drawn, if ever, only after the must-carry scheme has been t 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 nited States, 325 U.S. 91, 134, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945) (Rutledge, J., concu further proceedings. DISSENTBY: O'CONNOR (In Part); GINSBURG (In Part) DISSENT: JUSTICE O'CONNOR, with whom JUSTICE SCALIA and JUSTICE GINSBURG join, and with wh There are only so many channels that any cable system can carry. If there are fewer cha and Competition Act [*99] of 1992, Pub. L. 102-385, 106 Stat. 1460, Congress made a c opped and a broadcaster who is retained. The question presented in this case is whether th I A The 1992 Cable Act implicates the First Amendment rights of two classes of speakers. Fi actually originate most of the programming they show, the Court correctly holds that they rs, bookstores, and Reader's Digest, no less communication than is creating the speech in Second, the Act deprives a certain class of video programmers--those who operate cable t set aside by the must-carry provisions. A cable programmer that might otherwise have bee t ordered all movie theaters to reserve at least one-third of their screening for films ma I-A and II-B of its opinion, which I join, cable programmers and operators stand in the sa Under the First Amendment, it is normally not within the government's power to decide w nd manner restrictions, but this is in large part precisely because such restrictions appl 01] political check that prevents them from being unduly burdensome. Laws that single ou ota Comm'r of Revenue, 460 U.S. 575, 584, 591-592, 75 L. Ed. 2d 295, 103 S. Ct. 1365 (1983 I agree with the Court that some speaker-based restrictions--those genuinely justified dcasters over cable programmers is justified with reference to content. The findings, enac dment interest in promoting a diversity of views provided through multiple technology medi ng interest in educating its citizens." @ 2(a)(8)(A). "A primary objective and benefit of ntinuation." @ 2(a)(10). "Broadcast television stations continue to be an important source Similar justifications are reflected in the operative provisions of the Act. In determi ng into account such factors as . . . whether any other [eligible station] provides news c )(C)(ii) (1988 ed., Supp. IV). In determining whether a low-power [*103] station is eli vision broadcast stations." @ 4, 47 U.S.C. @ 534(h)(2)(B) (1988 ed., Supp. IV). Moreover, th @ 5. These provisions may all be technically severable from the statute, but they are s Preferences for diversity of viewpoints, for localism, for educational programming, and ause they are controversial or offensive. They may be quite benignly motivated. But benign York State Crime Victims Bd., 502 U.S. , (1991) (slip [*104] op., at 10-11); Arkansas Writers' Project, Inc. v. Raglan it disapproves. It also generally prohibits the government from excepting certain kinds o 7, 104 S. Ct. 3262 (1984); Metromedia, Inc. v. San Diego, 453 U.S. 490, 514-515, 69 L. Ed. Ct. 2882 (1981) (plurality); Carey v. Brown, 447 U.S. 455, 466-468, 65 L. Ed. 2d 263, 100 2d 471, 85 S. Ct. 453 (1965) [*105] (Black, J., concurring); see also R. A. V. v. St. P "). This is why the Court is mistaken in concluding that the interest in diversity--in "acc d to the suppression of free expression," ante, at 39 (emphasis added and internal quotati iters' Project, supra, is not related to the suppression of speech; the interest in giving e content of speech--to its communicative impact. The interest in ensuring access to a mul say. B The Court dismisses the findings quoted above by speculating that they do not reveal a evision have some intrinsic value and, thus, are worth preserving against the threats pose es, it is fair to assume that those findings reflect the basis for the legislative decisio slip op., at 12-13) (relying on recitals in a city council resolution as evidence of the j Moreover, it does not seem likely that Congress would make extensive findings merely to ly it does--but that broadcasters should be preferred over cable programmers. The best exp in part on the content of broadcasters' speech. To say in the face of the findings that th ith which we must normally approach speaker-based restrictions. See Minneapolis Star & Tri It may well be that Congress also had other, content-neutral, purposes in mind when ena on. In fact, we have often struck down statutes as being impermissibly content based even ral revenue measure); Regan v. Time, Inc., supra (striking down content-based exemptions i tion ordinance); Carey v. Brown, supra, at 466-468 (striking down on content discriminatio nough to make the statute content based, and neither is evidence that some legislators vot ral justification [*109] is present. C Content-based speech restrictions are generally unconstitutional unless they are narrow at the goals of the law be legitimate, or reasonable, or even praiseworthy. There must be The interest in localism, either in the dissemination of opinions held by the listeners rest test. It is a legitimate interest, perhaps even an important one--certainly the gover ons. It is for private speakers and listeners, not for the government, to decide what frac rue of the interest in diversity of viewpoints: While the government may subsidize speaker v. FCC, 497 U.S. 547, 612-613, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (O'CONNOR, J., d The interests in public affairs programming and educational programming seem somewhat w ould impose educational content requirements on, say, newsstands, bookstores, or movie the But even assuming arguendo that the Government could set some channels aside for educat inment programmers. It equally burdens CNN, C-SPAN, the Discovery Channel, the New Inspira Even if the Government can restrict entertainment in order to benefit supposedly more v rnment may draw content-based distinctions to serve its goals, the restrictions must serve 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975). Finally, my conclusion that the must-carry rules are content based leads [*112] me to he content of speech, the rules restrict the ability of cable operators to put on the prog Electric Co., 475 U.S., at 14-15 (plurality); id., at 23-24 (Marshall, J., concurring in j II Even if I am mistaken about the must-carry provisions being content based, however, in tition and preservation of free television, they nonetheless restrict too much speech that Sometimes, a cable system's choice to carry a cable programmer rather than a broadcaste causes harm, however, does not justify restricting the whole category. If Congress wants t ke, it may do that. But it may not, in the course of advancing these interests, restrict c "A regulation is not 'narrowly tailored'--even under the more lenient [standard applica & Schuster, 502 U.S., at - , n. ** (slip op., at 15-16, n. **) (internal quotation m 147, 84 L. Ed. 155, 60 S. Ct. 146 (1939). [*114] If the government wants to avoid fraud 4 U.S. 620, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); see also Edenfield v. Fane, 507 U.S. eholders put up, but it may not cut off access to homes whose residents are willing to hea ression are suspect. Precision of regulation must be the touchstone . . . ." NAACP v. Butt The must-carry provisions are fatally overbroad, even under a content-neutral analysis: room for the cable programmer would survive without cable access. None of the factfinding rest are implicated in all, or even most, of the situations in which must-carry makes a di rotect those broadcasters that are put in danger of bankruptcy, without unnecessarily rest III Having said all this, it is important to acknowledge one basic fact: The question is no ithin relatively broad limits. Under my view, the answer is the cable operator. Most of th he viewers' preferences will not always prevail. Our recognition that cable operators are I have no doubt that there is danger in having a single cable operator decide what mill steps to foster competition among cable systems. @ 3(a), 47 U.S.C. @ 543(a)(2) (1988 ed., or even simple devices that would let people easily switch from cable to over-the-air broa Congress may also be able to act in more mandatory ways. If Congress finds that cable o ers who otherwise would not get carriage. See PruneYard Shopping Center v. Robins, 447 U.S ligate cable operators to act as common carriers for some of their channels, with those ch f Congress may demand that telephone companies operate as common carriers, it can ask the But the First Amendment as we understand it today rests on the premise that it is gover ment even when it is trying to serve concededly praiseworthy [*118] goals. Perhaps Cong itutional requirements, requirements that were not complied with here. Accordingly, I woul JUSTICE GINSBURG, concurring in part and dissenting in part. Substantially for the reasons stated by Circuit Judge Williams in his opinion dissentin aside just over one-third of their channels for local broadcast stations, reflects an unw ion, 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 "viewp (1992) (STEVENS, J., concurring in judgment) (slip op., at 15) ("We have implicitly di . The rules, however, do reflect a content preference, and on that account demand close sc The Court has identified as Congress' "overriding objective in enacting must-carry," th allegedly overriding, content-neutral purpose. Ante, at 21-24, 43-45. But an intertwined o te, at 3-4, 6-7 (O'CONNOR, J., dissenting). As Circuit Judge Williams stated: "Congress rested its decision to promote [local broadcast] stations in part, but quite exp ces critical to an informed electorate.'" 819 F. Supp., at 58, quoting 1992 Cable Act, @ 2 Moreover, as Judge Williams persuasively explained, "[the] facts do not support an inferen at 63. "The paucity of evidence indicating that broadcast television is in jeopardy," see