Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 60 (1996)

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786

DENVER AREA ED. TELECOMMUNICATIONS CONSORTIUM, INC. v. FCC

Opinion of Kennedy, J.

forded all others. There is no reason to discard our existing First Amendment jurisprudence in answering this question.

While it protests against standards, the plurality does seem to favor one formulation of the question in these cases: namely, whether the Act "properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech." Ante, at 743. (Though the plurality frowns on any effort to settle on a form of words, it likes this formulation well enough to repeat it; see ante, at 741.) This description of the question accomplishes little, save to clutter our First Amendment case law by adding an untested rule with an uncertain relationship to the others we use to evaluate laws restricting speech. The plurality cannot bring itself to apply strict scrutiny, yet realizes it cannot decide these cases without uttering some sort of standard; so it has settled for synonyms. "[C]lose judicial scrutiny," ibid., is substituted for strict scrutiny, and "extremely important problem," ante, at 743, or "extraordinary proble[m]," ante, at 741, is substituted for "compelling interest." The admonition that the restriction not be unnecessarily great in light of the interest it serves, ante, at 743, is substituted for the usual narrow tailoring requirements. All we know about the substitutes is that they are inferior to their antecedents. We are told the Act must be "appropriately tailored," ante, at 741, "sufficiently tailored," ante, at 743, or "carefully and appropriately addressed," ante, at 748, to the problems at hand—anything, evidently, except narrowly tailored.

These restatements have unfortunate consequences. The first is to make principles intended to protect speech easy to manipulate. The words end up being a legalistic cover for an ad hoc balancing of interests; in this respect the plurality succeeds after all in avoiding the use of a standard. Second, the plurality's exercise in pushing around synonyms for the words of our usual standards will sow confusion in the courts bound by our precedents. Those courts, and lawyers in the

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