Cite as: 520 U. S. 180 (1997)
O'Connor, J., dissenting
issue was fairly included within the question presented or properly preserved by the parties. Ante, at 224. This position is somewhat perplexing. The Court in Turner apparently found the issue both fairly included within the strikingly similar question presented there, compare Brief for Federal Appellees in Turner, O. T. 1993, No. 93-44, p. I, with Brief for Federal Appellees I, and properly preserved despite the lack of specific argumentation devoted to this subsection of the challenged statute in the jurisdictional statement there, see Juris. Statement in Turner, O. T. 1993, No. 93-44, pp. 11-28. The Court's focus on the quantity of briefing devoted to the subject, ante, at 224, ignores the fact that there are two groups of appellants challenging the judgment below—cable operators and cable programmers—and that the issue is of more interest to the former than to the latter. It also seems to suggest that a party defending a judgment can defeat this Court's review of a question simply by ignoring its adversary's position on the merits.
In any event, the Court lets stand the District Court's seriously flawed legal reasoning on the point. The District Court concluded that the provisions "are very close to content-based legislation triggering strict scrutiny," but held that they do not "cross the line." 910 F. Supp., at 750. That conclusion appears to have been based on the fact that the low power provisions are viewpoint neutral. Ibid. Whether a provision is viewpoint neutral is irrelevant to the question whether it is also content neutral. See R. A. V. v. St. Paul, 505 U. S. 377, 430 (1992) (Stevens, J., concurring in judgment); Turner, supra, at 685 (Ginsburg, J., concurring in part and dissenting in part).
IV
In sustaining the must-carry provisions of the Cable Act, the Court ignores the main justification of the statute urged by appellees and subjects restrictions on expressive activity to an inappropriately lenient level of scrutiny. The principal
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