Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 48 (1997)

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Cite as: 520 U. S. 180 (1997)

Breyer, J., concurring in part

widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Turner, supra, at 663 (quoting United States v. Midwest Video Corp., 406 U. S. 649, 668, n. 27 (1972) (plurality opinion) (quoting Associated Press v. United States, 326 U. S. 1, 20 (1945) (internal quotation marks omitted)); see also FCC v. WNCN Listeners Guild, 450 U. S. 582, 594 (1981). That policy, in turn, seeks to facilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, democratic government presupposes and the First Amendment seeks to achieve. Whitney v. California, 274 U. S. 357, 375-376 (1927) (concurring opinion). See also New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Associated Press v. United States, supra, at 20. Indeed, Turner rested in part upon the proposition that "assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment." 512 U. S., at 663.

With important First Amendment interests on both sides of the equation, the key question becomes one of proper fit. That question, in my view, requires a reviewing court to determine both whether there are significantly less restrictive ways to achieve Congress' over-the-air programming objectives, and also to decide whether the statute, in its effort to achieve those objectives, strikes a reasonable balance between potentially speech-restricting and speech-enhancing consequences. Ward v. Rock Against Racism, 491 U. S. 781, 799-800 (1989); ante, at 217-218. The majority's opinion analyzes and evaluates those consequences, and I agree with its conclusions in respect to both of these matters. Ante, at 213-224.

In particular, I note (and agree) that a cable system, physically dependent upon the availability of space along city streets, at present (perhaps less in the future) typically faces little competition, that it therefore constitutes a kind of bot-

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