Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 62 (1994)

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Cite as: 512 U. S. 622 (1994)

Opinion of O'Connor, J.

litical fundraising, it may bar the fraud, but it may not in the process prohibit legitimate fundraising. Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); see also Edenfield v. Fane, 507 U. S. 761, 776-777 (1993). If the government wants to protect householders from unwanted solicitors, it may enforce "No Soliciting" signs that the householders put up, but it may not cut off access to homes whose residents are willing to hear what the solicitors have to say. Martin v. City of Struthers, 319 U. S. 141 (1943). "Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touch-stone . . . ." NAACP v. Button, 371 U. S. 415, 438 (1963) (citations omitted).

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.

III

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

683

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