TURNER BROADCASTING SYSTEM, INC., ET AL., APPELLANTS v. FEDERAL
COMMUNICATIONS COMMISSION ET AL. No. 93-44 SUPREME COURT OF THE UNITED
STATES 1994 U.S. LEXIS 4831 January 12, 1994--, Argued June 27, 1994,
Decided PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.
SYLLABUS: Concerned that a competitive imbalance between cable television and over-the-air
broadcasters was endangering the broadcasters' ability to compete for a viewing audience and thus
necessary operating revenues, Congress passed the Cable Television Consumer Protection and
Act of 1992. Sections 4 and 5 of the Act require cable television systems to devote a specified
their channels to the transmission of local commercial and public broadcast stations. Soon after
became law, appellants, numerous cable programmers and operators, challenged the constitutionality
must-carry provisions. The District Court granted the United States and intervenor-defendants
judgment, ruling that the provisions are consistent with the First Amendment. The court rejected
argument that the provisions warrant strict scrutiny as a content-based regulation and sustained
the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U. S. 367,
they are sufficiently tailored to serve the important governmental interest in the preservation of
broadcasting. Held: The judgment is vacated, and the case is remanded. 819 F. Supp. 32, vacated and
remanded. JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II, and III-A,
concluding that the appropriate standard by which to evaluate the constitutionality of the
provisions is the intermediate level of scrutiny applicable to content-neutral restrictions that
incidental burden on speech. Pp. 11-41. (a) Because the must-carry provisions impose special
upon cable operators and special burdens upon cable programmers, heightened First Amendment
demanded. The less rigorous standard of scrutiny now reserved for broadcast regulation, see Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, should not be extended to cable regulation, since the
such review--the dual problems of spectrum scarcity and signal interference--does not apply in the
of cable. Nor is the mere assertion of dysfunction or failure in the cable market, without more,
shield a speech regulation from the First Amendment standards applicable to nonbroadcast media.
Moreover, while enforcement of a generally applicable law against members of the press may sometimes
warrant only rational basis scrutiny, laws that single out the press for special treatment pose a
danger of abuse by the State and are always subject to some degree of heightened scrutiny. Pp.
The must-carry rules are content-neutral, and thus are not subject to strict scrutiny. They are
face because they distinguish between speakers in the television programming market based only upon
manner in which programmers transmit their messages to viewers, not the messages they carry. The
purposes underlying the must-carry rules are also unrelated to content. Congress' overriding
not to favor programming of a particular content, but rather to preserve access to free television
programming for the 40 percent of Americans without cable. The challenged provisions' design and
operation confirm this purpose. Congress' acknowledgement that broadcast television stations make a
valuable contribution to the Nation's communications structure does not indicate that Congress
broadcast programming to be more valuable than cable programming; rather, it reflects only the
that the services provided by broadcast television have some intrinsic value and are worth
against the threats posed by cable. It is also incorrect to suggest that Congress enacted
effort to exercise content control over what subscribers view on cable television, given the
to which the Federal Communications Commission and Congress influence the programming offered by
broadcast stations. Pp. 16-28. (c) None of appellants' additional arguments suffices to require
in this case. The provisions do not intrude on the editorial control of cable operators. They are
neutral in application, and they do not force cable operators to alter their own messages to
SNIPPETS:
No. 93-44 SUPREME COURT OF THE UNITED STATES 1994 U.S. LEXIS 4831 January 12, 1994--, Argued
Concerned that a competitive imbalance between cable television and over-the-air broadcasters
Sections 4 and 5 of the Act require cable television systems to devote a specified portion of
Soon after the Act became law, appellants, numerous cable programmers and operators,
The District Court granted the United States and intervenor-defendants summary judgment,
The court rejected appellants' argument that the provisions warrant strict scrutiny as a
JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II, and III-A,
Because the must-carry provisions impose special obligations upon cable operators and special
Moreover, while enforcement of a generally applicable law against members of the press may
and thus are not subject to strict scrutiny.
They are neutral on their face because they distinguish between speakers in the television
Congress' acknowledgement that broadcast television stations make a valuable contribution to
It is also incorrect to suggest that Congress enacted must-carry in an effort to exercise
The Government must demonstrate that the recited harms are real, not merely conjectural, and
the Act subjects the cable industry to rate regulation by the Federal Communications
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