Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 91 (1996)

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Cite as: 518 U. S. 727 (1996)

Opinion of Thomas, J.

is derivative of, and subordinate to, the operator's editorial discretion. Like a freelance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no freestanding First Amendment right to have that programming transmitted. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S., at 256-258. Likewise, the rights of would-be viewers are derivative of the speech rights of operators and programmers. Cf. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976) ("Freedom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both"). Viewers have a general right to see what a willing operator transmits, but, under Tornillo and Pacific Gas, they certainly have no right to force an unwilling operator to speak.

By recognizing the general primacy of the cable operator's editorial rights over the rights of programmers and viewers, Turner raises serious questions about the merits of petitioners' claims. None of the petitioners in these cases are cable operators; they are all cable viewers or access programmers or their representative organizations. See Brief for Petitioners in No. 95-124, pp. 5-6; Brief for Petitioners New York Citizens Committee for Responsible Media et al. in No. 95-227, p. 3; Brief for Petitioners Alliance for Community Media et al. in No. 95-227, p. 3. It is not intuitively obvious that the First Amendment protects the interests petitioners assert, and neither petitioners nor the plurality have adequately explained the source or justification of those asserted rights.

Justice Breyer's detailed explanation of why he believes it is "unwise and unnecessary," ante, at 742, to choose a standard against which to measure petitioners' First Amendment claims largely disregards our recent attempt in Turner

817

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