Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 55 (1997)

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234

TURNER BROADCASTING SYSTEM, INC. v. FCC

O'Connor, J., dissenting

tain "diverse," "quality" programming that is "responsive" to the needs of the local community. Brief for Federal Appellees 13, 30; see Brief for Appellees National Association of Broadcasters et al. 36-37 (NAB Brief); Tr. of Oral Arg. 29, 42; see also ante, at 226 (Breyer, J., concurring in part) ( justifying must-carry as a means of preventing a decline in "quality and quantity of programming choice"). Must-carry is thus justified as a way of preserving viewers' access to a Spanish or Chinese language station or of preventing an independent station from adopting a home-shopping format. NAB Brief 28, 33; Brief for Federal Appellees 31; Tr. of Oral Arg. 32-33. Undoubtedly, such goals are reasonable and important, and the stations in question may well be worthwhile targets of Government subsidies. But appellees' characterization of must-carry as a means of protecting these stations, like the Court's explicit concern for promoting " 'community self-expression' " and the " 'local origination of broadcast programming,' " ante, at 192, 193 (brackets omitted), reveals a content-based preference for broadcast programming. This justification of the regulatory scheme is, in my view, wholly at odds with the Turner Court's premise that must-carry is a means of preserving "access to free television programming—whatever its content," 512 U. S., at 649 (emphasis added).

I do not read Justice Breyer's opinion—which analyzes the must-carry rules in part as a "speech-enhancing" measure designed to ensure a "rich mix" of over-the-air programming, see ante, at 226, 227—to treat the content of over-theair programming as irrelevant to whether the Government's interest in promoting it is an important one. The net result appears to be that five Justices of this Court do not view must-carry as a narrowly tailored means of serving a substantial governmental interest in preventing anticompetitive behavior; and that five Justices of this Court do see the significance of the content of over-the-air programming to the Government's and appellees' efforts to defend the law.

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