250
O'Connor, J., dissenting
by broadcast stations are irrelevant to measuring the burden of the must-carry scheme. The must-carry rules prevent operators from dropping these broadcast stations should other more desirable cable programming become available, even though operators have carried these stations voluntarily in the past. The must-carry requirements thus burden an operator's First Amendment freedom to exercise unfettered control over a number of channels in its system, whether or not the operator's present choice is aligned with that of the Government.
Even assuming that the Court is correct that the 5,880 channels occupied by added broadcasters "represent the actual burden of the regulatory scheme," ibid., the Court's leap to the conclusion that must-carry "is narrowly tailored to preserve a multiplicity of broadcast stations," ante, at 215- 216, is nothing short of astounding. The Court's logic is circular. Surmising that most of the 5,880 channels added by the regulatory scheme would be dropped in its absence, the Court concludes that the figure also approximates the "benefit" of must-carry. Finding the scheme's burden "congruent" to the benefit it affords, the Court declares the statute narrowly tailored. The Court achieves this result, however, only by equating the effect of the statute—requiring cable operators to add 5,880 stations—with the governmental interest sought to be served. The Court's citation of Ward v. Rock Against Racism, 491 U. S. 781 (1989), reveals the true nature of the interest at stake. The "evi[l] the Government seeks to eliminate," id., at 799, n. 7, is not the failure of cable operators to carry these 5,880 stations. Rather, to read the first half of the principal opinion, the "evil" is anticompetitive behavior by cable operators. As a factual matter, we do not know whether these stations were not carried because of anticompetitive impulses. Positing the effect of a statute as the governmental interest "can sidestep judicial review of almost any statute, because it makes all statutes look narrowly tailored." Simon & Schuster, Inc. v. Members of
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