252
O'Connor, J., dissenting
motives may be implicated in a majority of decisions, or in decisions by a majority of systems. In either case, the principal opinion's conclusion is wholly speculative. We do not know which of these vertically integrated systems are affiliated with one cable programmer and which are affiliated with five cable programmers. Moreover, Congress has placed limits upon the number of channels that can be used for affiliated programming. 47 U. S. C. § 533(f)(1)(B). The principal opinion does not suggest why these limits are inadequate or explain why, once a system reaches the limit, its remaining carriage decisions would also be anticompetitively motivated. Even if the channel limits are insufficient, the principal opinion does not explain why requiring carriage of broadcast stations on one-third of the system's channels is a measured response to the problem.
Finally, I note my disagreement with the Court's suggestion that the availability of less-speech-restrictive alternatives is never relevant to O'Brien's narrow tailoring inquiry. Ante, at 217-218. The Turner Court remanded this case in part because a plurality concluded that "judicial findings concerning the availability and efficacy of constitutionally acceptable less restrictive means of achieving the Government's asserted interests" were lacking in the original record. 512 U. S., at 668 (internal quotation marks omitted). The Court's present position on this issue is puzzling.
Our cases suggest only that we have not interpreted the narrow tailoring inquiry to "require elimination of all less restrictive alternatives." Fox, supra, at 478. Put another way, we have refrained from imposing a least-restrictive-means requirement in cases involving intermediate First Amendment scrutiny. Ward, supra, at 798 (time, place, and manner restriction); Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984) (same); Fox, supra, at 478 (commercial speech). It is one thing to say that a regulation need not be the least-speech-restrictive means of serving an important governmental objective. It is quite another to
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