258
O'Connor, J., dissenting
opinion then misapplies the analytic framework it chooses, exhibiting an extraordinary and unwarranted deference for congressional judgments, a profound fear of delving into complex economic matters, and a willingness to substitute untested assumptions for evidence. In light of gaps in logic and evidence, it is improper to conclude, at the summary judgment stage, that the must-carry scheme serves a significant governmental interest "in a direct and effective way." Ward, 491 U. S., at 800. Moreover, because the un-disputed facts demonstrate that the must-carry scheme is plainly not narrowly tailored to serving the only governmental interest the principal opinion fully explains and embraces—preventing anticompetitive behavior—appellants are entitled to summary judgment in their favor.
Justice Breyer disavows the principal opinion's position on anticompetitive behavior, and instead treats the must-carry rules as a "speech-enhancing" measure designed to ensure access to "quality" programming for noncable households. Neither the principal opinion nor the partial concurrence explains the nature of the alleged threat to the availability of a "multiplicity of broadcast programming sources," if that threat does not arise from cable operators' anticompetitive conduct. Such an approach makes it impossible to discern whether Congress was addressing a problem that is "real, not merely conjectural," and whether must-carry addresses the problem in a "direct and material way." Turner, supra, at 664 (plurality opinion).
I therefore respectfully dissent, and would reverse the judgment below.
Page: Index Previous 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79Last modified: October 4, 2007