818
Opinion of Thomas, J.
to define that standard.3 His attempt to distinguish Turner on the ground that it did not involve "the effects of television viewing on children," ante, at 748, is meaningless because that factual distinction has no bearing on the existence and ordering of the free speech rights asserted in these cases.
In the process of deciding not to decide on a governing standard, Justice Breyer purports to discover in our cases an expansive, general principle permitting government to "directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech." Ante, at 741. This heretofore unknown standard is facially subjective and openly invites balancing of asserted speech interests to a degree not ordinarily permitted. It is true that the standard I endorse lacks the "flexibility" inherent in the plurality's balancing approach, ante, at 740, but that relative rigidity is required by our precedents and is not of my own making.
In any event, even if the plurality's balancing test were an appropriate standard, it could only be applied to protect speech interests that, under the circumstances, are themselves protected by the First Amendment. But, by shifting the focus to the balancing of "complex" interests, ante, at 743, Justice Breyer never explains whether (and if so, how) a programmer's ordinarily unprotected interest in affirmative transmission of its programming acquires constitutional significance on leased and public access channels. See
3 Curiously, the plurality relies on "changes taking place in the law, the technology, and the industrial structure related to telecommunications," ante, at 742, to justify its avoidance of traditional First Amendment standards. If anything, as the plurality recognizes, ante, at 745, those recent developments—which include the growth of satellite broadcast programming and the coming influx of video dialtone services—suggest that local cable operators have little or no monopoly power and create no programming bottleneck problems, thus effectively negating the primary justifications for treating cable operators differently from other First Amendment speakers.
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