Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 56 (1997)

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

O'Connor, J., dissenting

Under these circumstances, the must-carry provisions should be subject to strict scrutiny, which they surely fail.

II

The principal opinion goes to great lengths to avoid acknowledging that preferences for "quality," "diverse," and "responsive" local programming underlie the must-carry scheme, although the partial concurrence's reliance on such preferences is explicit. See ante, at 226 (opinion of Breyer, J.). I take the principal opinion at its word and evaluate the claim that the threat of anticompetitive behavior by cable operators supplies a content-neutral basis for sustaining the statute. It does not.

The Turner Court remanded the case for a determination whether the must-carry provisions satisfy intermediate scrutiny under United States v. O'Brien, 391 U. S. 367 (1968). Under that standard, appellees must demonstrate that the must-carry provisions (1) "furthe[r] an important or substantial government interest"; and (2) burden speech no more "than is essential to the furtherance of that interest." Id., at 377; see also Ward v. Rock Against Racism, 491 U. S. 781, 799 (1989). The Turner plurality found that genuine issues of material fact remained as to both parts of the O'Brien analysis. On whether must-carry furthers a substantial governmental interest, the Turner Court remanded the case to test two essential and unproven propositions: "(1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and (2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether." 512 U. S., at 666 (emphasis added). As for whether must-carry restricts no more speech than essential to further Congress' asserted purpose, the Turner plurality found evidence lacking on the extent of the burden that the must-carry provisions would place on cable operators and cable programmers. Id., at 667-668.

235

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