Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 74 (1997)

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

O'Connor, J., dissenting

suggest, as I read the majority to do here, that the availability of less-speech-restrictive alternatives cannot establish or confirm that a regulation is substantially broader than necessary to achieve the Government's goals. While the validity of a Government regulation subject to intermediate First Amendment scrutiny does not turn on our "agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests," United States v. Albertini, 472 U. S. 675, 689 (1985), the availability of less intrusive approaches to a problem serves as a benchmark for assessing the reasonableness of the fit between Congress' articulated goals and the means chosen to pursue them, Rubin v. Coors Brewing Co., 514 U. S. 476, 490-491 (1995).

As shown supra, at 251-252 and this page, in this case it is plain without reference to any alternatives that the must-carry scheme is "substantially broader than necessary," Ward, 491 U. S., at 800, to serve the only governmental interest that the principal opinion fully explains—preventing unfair competition. If Congress truly sought to address anticompetitive behavior by cable system operators, it passed the wrong law. See Turner, supra, at 682 (O'Connor, J., concurring in part and dissenting in part) ("That some speech within a broad category causes harm . . . does not justify restricting the whole category"). Nevertheless, the availability of less restrictive alternatives—a leased access regime and subsidies—reinforces my conclusion that the must-carry provisions are overbroad.

Consider first appellants' proposed leased access scheme, under which a cable system operator would be required to make a specified proportion of the system's channels available to broadcasters and independent cable programmers alike at regulated rates. Leased access would directly address both vertical integration and predatory behavior, by placing broadcasters and cable programmers on a level playing field for access to cable. The principal opinion never ex-

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