Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 61 (1994)

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682

TURNER BROADCASTING SYSTEM, INC. v. FCC

Opinion of O'Connor, J.

and require them to include programming they would rather avoid. This, it seems to me, puts this case squarely within the rule of Pacific Gas & Elec. Co., 475 U. S., at 14-15 (plurality opinion); id., at 23-24 (Marshall, J., concurring in judgment); see also Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 257-258 (1974).

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.

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 content-neutral] 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 po-

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