624
Syllabus
monopoly and the dangers this power poses to the viability of broadcast television—and because the must-carry provisions are not structured in a manner that carries the inherent risk of undermining First Amendment interests. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, and Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575, distinguished. Pp. 653-661. (d) Under O'Brien, a content-neutral regulation will be sustained if it furthers an important governmental interest that is unrelated to the suppression of free expression and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Viewed in the abstract, each of the governmental interests asserted—preserving the benefits of free, over-the-air local broadcast stations, promoting the widespread dissemination of information from a multiplicity of sources, and promoting fair competition in the market for television programming—is important. Pp. 661-664.
Justice Kennedy, joined by The Chief Justice, Justice Black-mun, and Justice Souter, concluded in Part III-B that the fact that the asserted interests are important in the abstract does not mean that the must-carry provisions will in fact advance those interests. The Government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Thus, the Government must adequately show that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry. Assuming an affirmative answer, the Government still bears the burden of showing that the remedy adopted does not burden substantially more speech than is necessary to further such interests. On the state of the record developed, and in the absence of findings of fact from the District Court, it is not possible to conclude that the Government has satisfied either inquiry. Because there are genuine issues of material fact still to be resolved on this record, the District Court erred in granting summary judgment for the Government. Pp. 664-668.
Justice Stevens, though favoring affirmance, concurred in the judgment because otherwise no disposition of the case would be supported by five Justices and because he is in substantial agreement with Justice Kennedy's analysis of this case. P. 674.
Kennedy, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part I, the opinion of the Court with respect to Parts II-A and II-B, in which Rehnquist, C. J., and Blackmun, O'Connor, Scalia, Souter, Thomas, and Ginsburg, JJ., joined, the opinion of the Court with respect to Parts II-C, II-D, and III-A, in which Rehnquist, C. J., and Blackmun, Stevens, and Souter,
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