Turner Broadcasting System, Inc. v. F.C.C. (1994)

Turner Broadcasting System, Inc. v. F.C.C. (1994)

512 U.S. 622

In 1992, Congress enacted the Cable Television Consumer Protection and Competition Act, which included “must-carry” provisions requiring cable television systems to carry the signals of a certain number of local broadcast television stations. Congress sought to ensure the availability of free, local television, which Congress feared had been marginalized by cable operators with economic incentives to favor their own affiliated programming. Turner Broadcasting System and other cable operators challenged these provisions, arguing that the must-carry rules violated their First Amendment rights.

Opinion of the Court: Kennedy, Rehnquist, Stevens, Souter, Breyer (in part).

Concurring opinion: Stevens.

Opinion concurring in part and dissenting in part: Breyer.

Dissenting opinion: O’Connor, Scalia, Thomas, Ginsburg

Justice KENNEDY delivered the opinion of the Court.

. . . 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. 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.” By requiring cable systems to set aside a portion of their channels for local broadcasters, the must-carry rules regulate cable speech in two respects: The rules reduce the number of channels over which cable operators exercise unfettered control, and they render it more difficult for cable programmers to compete for carriage on the limited channels remaining. Nevertheless, because not every interference with speech triggers the same degree of scrutiny under the First Amendment, we must decide at the outset the level of scrutiny applicable to the must-carry provisions. . . .

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. 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.”

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. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.

Deciding whether a particular regulation is content based or content neutral is not always a simple task. We have said that the “principal inquiry in determining content neutrality … is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.” . . .

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.  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. . . .

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. Although the provisions interfere with cable operators’ editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations, the extent of the interference does not depend upon the content of the cable operators’ programming. The rules impose obligations upon all operators, save those with fewer than 300 subscribers, regardless of the programs or stations they now offer or have offered in the past. Nothing in the Act imposes a restriction, penalty, or burden by reason of the views, programs, or stations the cable operator has selected or will select. . . .

The must-carry provisions also burden cable programmers by reducing the number of channels for which they can compete. But, again, this burden is unrelated to content, for it extends to all cable programmers irrespective of the programming they choose to offer viewers. And finally, the privileges conferred by the must-carry provisions are also unrelated to content. The rules benefit all full power broadcasters who request carriage—be they commercial or noncommercial, independent or network affiliated, English or Spanish language, religious or secular. The aggregate effect of the rules is thus to make every full power commercial and noncommercial broadcaster eligible for must-carry, provided only that the broadcaster operates within the same television market as a cable system.

It is true that the must-carry provisions distinguish between speakers in the television programming market. But they do so based only upon the manner in which speakers transmit their messages to viewers, and not upon the messages they carry: Broadcasters, which transmit over the airwaves, are favored, while cable programmers, which do not, are disfavored. Cable operators, too, are burdened by the carriage obligations, but only because they control access to the cable conduit. So long as they are not a subtle means of exercising a content preference, speaker distinctions of this nature are not presumed invalid under the First Amendment.

That the must-carry provisions, on their face, do not burden or benefit speech of a particular content does not end the inquiry. Our cases have recognized that even a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys. . . .

In unusually detailed statutory findings, Congress explained that because cable systems and broadcast stations compete for local advertising revenue, and because cable operators have a vested financial interest in favoring their affiliated programmers over broadcast stations, cable operators have a built-in “economic incentive … to delete, reposition, or not carry local broadcast signals.” 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. . . .

By preventing cable operators from refusing carriage to broadcast television stations, the must-carry rules ensure that broadcast television stations will retain a large enough potential audience to earn necessary advertising revenue—or, in the case of noncommercial broadcasters, sufficient viewer contributions—to maintain their continued operation. In so doing, the provisions are designed to guarantee the survival of a medium that has become a vital part of the Nation’s communication system, and to ensure that every individual with a television set can obtain access to free television programming.

This overriding congressional purpose is unrelated to the content of expression disseminated by cable and broadcast speakers. . . .

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. . . .

The must-carry provisions . . . 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. . . .

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. . . . For these reasons, the must-carry rules do not call for strict scrutiny.

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 with the District Court that the appropriate standard by which to evaluate the constitutionality of must-carry is the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. . . .

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. 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 viewed in the abstract, we have no difficulty concluding that each of them is an important governmental interest. . . .

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.” 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. 

Thus, in applying O’Brien scrutiny we must ask first whether the Government has adequately shown that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry. Assuming an affirmative answer to the foregoing question, the Government still bears the burden of showing that the remedy it has adopted does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” On the state of the record developed thus far, and in the absence of findings of fact from the District Court, we are unable to conclude that the Government has satisfied either inquiry. . . .

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. . . .

The judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.

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 Television Consumer Protection and Competition Act of 1992, Congress made a choice: By reserving a little over one-third of the channels on a cable system for broadcasters, it ensured that in most cases it will be a cable programmer who is dropped and a broadcaster who is retained. The question presented in this case is whether this choice comports with the commands of the First Amendment.

I

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. 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 must-carry 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. . . .

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 content-neutral 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. . . .

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. The First Amendment does more than just bar government from intentionally suppressing speech of which it disapproves. It also generally prohibits the government from excepting certain kinds of speech from regulation because it thinks the speech is especially valuable.

This is why the Court is mistaken in concluding that the interest in diversity—in “access to a multiplicity” of “diverse and antagonistic sources,” —is content neutral. Indeed, the interest is not “related to the suppression of free expression,” but that is not enough for content neutrality. . . .

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,” cannot be correct, especially in light of the care with which we must normally approach speaker-based restrictions.

It may well be that Congress also had other, content-neutral, 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. . . .

Content-based speech restrictions are generally unconstitutional unless they are narrowly tailored to a compelling state interest. 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. . . .

[M]y 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, and require them to include programming they would rather avoid.

II

Even if I am mistaken about the must-carry provisions being content based, however, in my view they fail content-neutral 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. . . .

“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 content-neutral] goals.” . . .

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. . . .

III

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 view, the answer is the cable operator. . . .

[T]he First Amendment as we understand it today rests on the premise that it is government power, rather than private power, that is the main threat to free expression; and as a consequence, the Amendment imposes substantial limitations on the Government even when it is trying to serve concededly praiseworthy goals. Perhaps Congress can to some extent restrict, even in a content-based manner, the speech of cable operators and cable programmers. But it must do so in compliance with the constitutional requirements, requirements that were not complied with here. Accordingly, I would reverse the judgment below.

Editor’s note: In Turner Broadcasting System, Inc. v. F.C.C. (Turner II), 520 U.S. 180 (1997), the Supreme Court held that must-carry rules for cable television companies did not restrict free speech rights. The Court found that the government had met the standard of intermediate scrutiny and that the must-carry rules served important governmental interests and did not burden more speech than necessary to achieve these interests.