Justice Kennedy announced the judgment of the Court and delivered the opinion of the Court, except as to Part III—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,
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-topoint
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. I-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 programming,
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 (1989); Brenner, supra, at 334, n. 22.
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)(1)(A) (1988 ed., Supp. IV).
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).
Section 5 of the Act imposes similar requirements regarding the carriage of local public broadcast television stations,
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.
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 increasing
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
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).
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.
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
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).
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,
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 required
Although courts and commentators have criticized the scarcity rationale since its inception,
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
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
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,
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
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").
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.
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 contentbased
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.
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.
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
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.
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
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) (1)(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
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)).
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.
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 sense— it 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.
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
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 expressed
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.
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
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 programming
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-
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
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]").
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
Under O'Brien, a content-neutral regulation will be sustained if
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
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
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 economic
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
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
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
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.
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 "justified
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.
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 access
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.
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
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
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
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
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
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.
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
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);
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 fisc— but 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
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,
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 restrictions]—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 political
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.
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
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.
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) ("[W]e 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
As Circuit Judge Williams stated:
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.
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.
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.