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No. 95-992

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TURNER BROADCASTING SYSTEM, INC., et al., APPELLANTS v. FEDERAL COMMUNICATIONS COMMISSION et al.

on appeal from the united states district court for the district of columbia

[March 31, 1997]

Justice Breyer, concurring in part.

I join the opinion of the Court except insofar as Part II-A-1 relies on an anticompetitive rationale. I agree with the majority that the statute must be "sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." Ante, at 6 (citing United States v. O'Brien, 391 U.S. 367, 377 (1968)). I also agree that the statute satisfies this standard. My conclusion rests, however, not upon the principal opinion's analysis of the statute's efforts to "promot[e] fair competition," see post, at 3-4, 9-12, but rather upon its discussion of the statute's other objectives, namely "`(1) preserving the benefits of free, over the air local broadcast television,'" and "`(2) promoting the widespread dissemination of information from a multiplicity of sources.'" Ante, at 6 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994) (Turner)). Whether or not the statute does or does not sensibly compensate for some significant market defect, it undoubtedly seeks to provide over the air viewers who lack cable with a rich mix of over the air programming by guaranteeing the over the air stations that provide such programming with the extra dollars that an additional cable audience will generate. I believe that this purpose--to assure the over the air public "access to a multiplicity of information sources," id., at 663--provides sufficient basis for rejecting appellants' First Amendment claim.

I do not deny that the compulsory carriage that creates the "guarantee" extracts a serious First Amendment price. It interferes with the protected interests of the cable operators to choose their own programming; it prevents displaced cable program providers from obtaining an audience; and it will sometimes prevent some cable viewers from watching what, in its absence, would have been their preferred set of programs. Ante, at 31-32; post, at 23. This "price" amounts to a "suppression of speech."

But there are important First Amendment interests on the other side as well. The statute's basic noneconomic purpose is to prevent too precipitous a decline in the quality and quantity of programming choice for an ever shrinking non cable subscribing segment of the public. Ante, at 6, 8-11. This purpose reflects what "has long been a basic tenet of national communications policy," namely that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Turner, supra, at 663 (quoting United States v. Midwest Video Corp., 406 U.S. 649, 668, n. 27 (1972) (plurality opinion) (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945) (internal quotation marks omitted)); see also FCC v. WNCN Listeners Guild, 450 U.S. 582, 594 (1981). That policy, in turn, seeks to facilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, democratic government presupposes and the First Amendment seeks to achieve. Whitney v. California, 274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring). See also New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Associated Press v. United States, supra, at 20. Indeed, Turner rested in part upon the proposition that "assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment." 512 U. S., at 663.

With important First Amendment interests on both sides of the equation, the key question becomes one of proper fit. That question, in my view, requires a reviewing court to determine both whether there are significantly less restrictive ways to achieve Congress' over the air programming objectives, and also to decide whether the statute, in its effort to achieve those objectives, strikes a reasonable balance between potentially speech restricting and speech enhancing consequences. Ward v. Rock Against Racism, 491 U.S. 781, 799-800 (1989); ante, at 36. The majority's opinion analyzes and evaluates those consequences, and I agree with its conclusions in respect to both of these matters. Ante, at 31-43.

In particular, I note (and agree) that a cable system, physically dependent upon the availability of space along city streets, at present (perhaps less in the future) typically faces little competition, that it therefore constitutes a kind of bottleneck that controls the range of viewer choice (whether or not it uses any consequent economic power for economically predatory purposes), and that some degree--at least a limited degree--of governmental intervention and control through regulation can prove appropriate when justified under O'Brien (at least when not "content based"). Ante, at 14, 20-22, 25-31; see also Defendants' Joint Statement of Evidence before Congress ¶¶12-21, 31-59 (App. 1254-1258, 1262-1274) (JSCR); Cable Act, §2(a)(2), P. L. 102-385, 106 Stat. 1460. Cf. Red Lion, supra, at 377-378,387-401; 47 C. F. R. §§73.123, 73.300, 73.598, 73.679 (1969) (FCC regulations upheld in Red Lion); United Broadcasting Co., 10 F. C. C. 515 (1945); New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). I also agree that, without the statute, cable systems would likely carry significantly fewer over the air stations, ante, at 8, 18-20, that station revenues would therefore decline, ante, at 25-31, and that the quality of over the air programming on such stations would almost inevitably suffer, e.g., JSCR ¶¶596, 704-706 (App. 1544, 1600" 1601); Rebuttal Declaration of Roger G. Noll ¶¶5, 11, 34, 38 (App. 1790, 1793, 1804-1805, 1806). I agree further that the burden the statute imposes upon the cable system, potential cable programmers, and cable viewers, is limited and will diminish as typical cable system capacity grows over time.

Finally, I believe that Congress could reasonably conclude that the statute will help the typical over the air viewer (by maintaining an expanded range of choice) more than it will hurt the typical cable subscriber (by restricting cable slots otherwise available for preferred programming). The latter's cable choices are many and varied, and the range of choice is rapidly increasing. The former's over the air choice is more restricted; and, as cable becomes more popular, it may well become still more restricted insofar as the over the air market shrinks and thereby, by itself, becomes less profitable. In these circumstances, I do not believe the First Amendment dictates a result that favors the cable viewers' interests.

These and other similar factors discussed by the majority, lead me to agree that the statute survives "intermediate scrutiny," whether or not the statute is properly tailored to Congress' purely economic objectives.