730
Syllabus
community considers valuable strongly suggests that a "cable operator's veto" is more likely to erroneously exclude borderline programs that should be broadcast, than to achieve the statute's basic objective of protecting children. Fourth, the Government has not shown that there is a significant enough problem of patently offensive broadcasts to children, over public access channels, that justifies the restriction imposed by § 10(c). Consequently, § 10(c) violates the First Amendment. Pp. 760-766.
Justice Kennedy, joined by Justice Ginsburg, concurred in the judgment that § 10(c) is invalid, but for different reasons. Because the public access channels regulated by § 10(c) are required by local cable franchise authorities, those channels are "designated public forums," i. e., property that the government has opened for expressive activity by the public. International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678. Section 10(c) vests the cable operator with a power under federal law, defined by reference to the content of speech, to override the franchise agreement and undercut the public forum the agreement creates. Where the government thus excludes speech from a public forum on the basis of its content, the Constitution requires that the regulation be given the most exacting scrutiny. See, e. g., ibid. Section 10(c) cannot survive strict scrutiny. Although Congress has a compelling interest in protecting children from indecent speech, see, e. g., Sable Communications of Colo., Inc. v. FCC, 492 U. S. 115, 126, § 10(c) is not narrowly tailored to serve that interest, since, among other things, there is no basis in the record establishing that § 10(c) is the least restrictive means to accomplish that purpose. See, e. g., id., at 128-130. The Government's argument for not applying strict scrutiny here, that indecent cablecasts are subject to the lower standard of review applied in FCC v. Pacifica Foundation, 438 U. S. 726, 748, is not persuasive, since that lower standard does not even apply to infringements on the liberties of cable operators, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-641. There is less cause for a lower standard when the rights of cable programmers and viewers are at stake. Pp. 781-783, 791-794, 803-812.
Justice Thomas, joined by The Chief Justice and Justice Scalia, agreed that § 10(a) is constitutionally permissible. Cable operators are generally entitled to much the same First Amendment protection as the print media. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637, 639. Because Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, and Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, are therefore applicable, see Turner, supra, at 681-682 (O'Connor, J., concurring in part and dissenting in part), the cable operator's editorial rights have general primacy under the First Amendment over
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