Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 90 (1996)

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816

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

Opinion of Thomas, J.

basis for intrusive regulation that would be inappropriate and perhaps impermissible for other communicative media").

In Turner, by adopting much of the print paradigm, and by rejecting Red Lion, we adopted with it a considerable body of precedent that governs the respective First Amendment rights of competing speakers. In Red Lion, we had legitimized consideration of the public interest and emphasized the rights of viewers, at least in the abstract. Under that view, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 395 U. S., at 390. After Turner, however, that view can no longer be given any credence in the cable context. It is the operator's right that is preeminent. If Tornillo and Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1 (1986), are applicable, and I think they are, see Turner, supra, at 681-682 (O'Connor, J., concurring in part and dissenting in part), then, when there is a conflict, a programmer's asserted right to transmit over an operator's cable system must give way to the operator's editorial discretion. Drawing an analogy to the print media, for example, the author of a book is protected in writing the book, but has no right to have the book sold in a particular bookstore without the store owner's consent. Nor can government force the editor of a collection of essays to print other essays on the same subject.

The Court in Turner found that the FCC's must-carry rules implicated the First Amendment rights of both cable operators and cable programmers. The rules interfered with the operators' editorial discretion by forcing them to carry broadcast programming that they might not otherwise carry, and they interfered with the programmers' ability to compete for space on the operators' channels. 512 U. S., at 636-637; id., at 675-676 (O'Connor, J., concurring in part and dissenting in part). We implicitly recognized in Turner that the programmer's right to compete for channel space

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