Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 50 (1997)

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

O'Connor, J., dissenting

less profitable. In these circumstances, I do not believe the First Amendment dictates a result that favors the cable viewers' interests.

These and other similar factors discussed by the majority lead me to agree that the statute survives "intermediate scrutiny," whether or not the statute is properly tailored to Congress' purely economic objectives.

Justice O'Connor, with whom Justice Scalia, Justice Thomas, and Justice Ginsburg join, dissenting.

In sustaining the must-carry provisions of the Cable Television Protection and Competition Act of 1992 (Cable Act), Pub. L. 102-385, §§ 4-5, 106 Stat. 1460, against a First Amendment challenge by cable system operators and cable programmers, the Court errs in two crucial respects. First, the Court disregards one of the principal defenses of the statute urged by appellees on remand: that it serves a substantial interest in preserving "diverse," "quality" programming that is "responsive" to the needs of the local community. The course of this litigation on remand and the proffered defense strongly reinforce my view that the Court adopted the wrong analytic framework in the prior phase of this case. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 643-651 (1994) (Turner); id., at 675-680 (O'Connor, J., concurring in part and dissenting in part). Second, the Court misapplies the "intermediate scrutiny" framework it adopts. Although we owe deference to Congress' predictive judgments and its evaluation of complex economic questions, we have an independent duty to identify with care the Government interests supporting the scheme, to inquire into the reasonableness of congressional findings regarding its necessity, and to examine the fit between its goals and its consequences. Edenfield v. Fane, 507 U. S. 761, 770-771 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 129 (1989); Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 496 (1986); Landmark

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