RED LION BROADCASTING CO., INC., ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL.

SUPREME COURT OF THE UNITED STATES 395 U.S. 367 June 9, 1969, Decided MR. JUSTICE WHITE delivered the opinion of the Court. The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory requirement of 315 of the Communications Act that equal time be allotted all qualified candidates for public office. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely in the form of FCC regulations in 1967. The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion involves the application of the fairness doctrine to a particular broadcast, and RTNDA arises as an action to review the FCC's 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun. I. A. The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater -- Extremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a "book to smear and destroy Barry Goldwater." When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, the FCC's position was upheld as constitutional and otherwise proper. B. Not long after the Red Lion litigation was begun, the FCC issued a Notice of Proposed Rule Making with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. After considering written comments supporting and opposing the rules, the FCC adopted them substantially as proposed. As they now stand amended, the regulations read as follows: "Personal attacks; political editorials. "(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities....

C. Believing that the specific application of the fairness doctrine in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance rather than abridge the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional, reversing the judgment below in RTNDA and affirming the judgment below in Red Lion. II. The history of the emergence of the fairness doctrine and of the related legislation shows that the Commission's action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own....The statutory authority of the FCC to promulgate these regulations derives from the mandate to the "Commission from time to time, as public convenience, interest, or necessity requires" to promulgate "such rules and regulations and prescribe such restrictions and conditions . . . as may be necessary to carry out the provisions of this chapter . . . ." We cannot say that the FCC's declaratory ruling in Red Lion, or the regulations at issue in RTNDA, are beyond the scope of the congressionally conferred power to assure that stations are operated by those whose possession of a license serves "the public interest." III. The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters. A. Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them. For example, the ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the sound level, and on the hours and places of use, of sound trucks so long as the restrictions are reasonable and applied without discrimination. Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others. When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology. It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, as the Court has noted at length before. It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur

operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum. This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech." By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in 326, which forbids FCC interference with "the right of free speech by means of radio communication." Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC. B. Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert that under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.... Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment

for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." C. It is strenuously argued, however, that if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship and their coverage of controversial public issues will be eliminated or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stifled. At this point, however, as the Federal Communications Commission has indicated, that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard. It would be better if the FCC's encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect. That this will occur now seems unlikely, however, since if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern.... D. The litigants embellish their First Amendment arguments with the contention that the regulations are so vague that their duties are impossible to discern. Of this point it is enough to say that, judging the validity of the regulations on their face as they are presented here, we cannot conclude that the FCC has been left a free hand to vindicate its own idiosyncratic conception of the public interest or of the requirements of free speech. Past adjudications by the FCC give added precision to the regulations; there was nothing vague about the FCC's specific ruling in Red Lion that Fred Cook should be provided an opportunity to reply. The regulations at issue in RTNDA could be employed in precisely the same way as the fairness doctrine was in Red Lion.... We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials. In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional. The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed and the causes remanded for proceedings consistent with this opinion. Not having heard oral argument in these cases, MR. JUSTICE DOUGLAS took no part in the Court's decision.

MIAMI HERALD PUBLISHING CO. v. TORNILLO, 418 U.S. 241 (1974)

418 U.S. 241 MIAMI HERALD PUBLISHING CO., DIVISION OF KNIGHT NEWSPAPERS, INC. v. TORNILLO. APPEAL FROM THE SUPREME COURT OF FLORIDA. No. 73-797. Argued April 17, 1974. Decided June 25, 1974. After appellant newspaper had refused to print appellee's replies to editorials critical of appellee's candidacy for state office, appellee brought suit in Florida Circuit Court seeking injunctive and declaratory relief and damages, based on Florida's "right of reply" statute that grants a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper, and making it a misdemeanor for the newspaper to fail to comply. The Circuit Court held the statute unconstitutional as infringing on the freedom of the press and dismissed the action. The Florida Supreme Court reversed, holding that the statute did not violate constitutional guarantees, and that civil remedies, including damages, were available, and remanded to the trial court for further proceedings. Held: 1. The Florida Supreme Court's judgment is "final" under 28 U.S.C. 1257, and thus is ripe for review by this Court. North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156 . Pp. 246-247. 2. The statute violates the First Amendment's guarantee of a free press. Pp. 247-258. (a) Governmental compulsion on a newspaper to publish that which "reason" tells it should not be published is unconstitutional. P. 256. (b) The statute operates as a command by a State in the same sense as a statute or regulation forbidding appellant to publish specified matter. P. 256. (c) The statute exacts a penalty on the basis of the content of a newspaper by imposing additional printing, composing, and materials costs and by taking up space that could be devoted to other material the newspaper may have preferred to print. Pp. 256-257. (d) Even if a newspaper would face no additional costs to comply with the statute and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the statute still fails to clear the First Amendment's barriers because of its [418 U.S. 241, 242] intrusion into the function of editors in choosing what material goes into a newspaper and in deciding on the size and content of the paper and the treatment of public issues and officials. P. 258. 287 So.2d 78, reversed. BURGER, C. J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring statement, in which REHNQUIST, J., joined, post, p. 258. WHITE, J., filed a concurring opinion, post, p. 259. Daniel P. S. Paul argued the cause for appellant. With him on the briefs were James W. Beasley, Jr., and Richard M. Schmidt, Jr. Jerome A. Barron argued the cause for appellee. With him on the brief were Tobias Simon and Elizabeth duFresne. * [ Footnote * ] Briefs of amici curiae urging reversal were filed by Joseph A. Califano, Jr., and Richard M. Cooper for Washington Post Co.; by Robert C. Lobdell and Robert S. Warren for Times Mirror Co.; by James W. Rodgers for New York News Inc.; by Don H. Reuben and Lawrence Gunnels for Chicago Tribune Co. et al.; by Harold B. Wahl for Florida Publishing Co.; by William C. Ballard for Times Publishing Co.; by Spessard Lindsey Holland, Jr., for Gannett Florida Corp. et al.; by Arthur B. Hanson, W. Frank Stickle, Jr., and Ralph N. Albright, Jr., for the American Newspaper Publishers Assn.; by William G. Mullen for the National Newspaper Assn.; by Leonard H. Marks for the American Society of Newspaper Editors et al.; by Lawrence E. Walsh and Guy Miller Struve for the Reporters Committee for Freedom of the Press Legal Defense and Research Fund et al.; by John B. Summers for the National Association of Broadcasters; by J. Laurent Scharff for Radio Television News Directors Assn.; by Floyd Abrams, Corydon B. Dunham, and Howard Monderer for National Broadcasting Co., Inc.; by Harry A. Inman and D. Robert Owen for Dow Jones & Co., Inc., et al.; and by Jonathan L. Alpert, Irma Robbins Feder, and Richard Yale Feder for the American Civil Liberties Union of Florida.

Briefs of amici curiae urging affirmance were filed by Albert H. Kramer and Thomas R. Asher for the National Citizens Committee for Broadcasting, and by Donald U. Sessions pro se. [418 U.S. 241, 243] MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press. I In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers' collectivebargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of appellee's candidacy. 1 In [418 U.S. 241, 244] response to these editorials appellee demanded that appellant print verbatim his replies, defending the role of the Classroom Teachers Association and the organization's accomplishments for the citizens of Dade County. Appellant declined to print the appellee's replies, and appellee brought suit in Circuit Court, Dade County, seeking declaratory and injunctive relief and actual and punitive damages in excess of $5,000. The action was premised on Florida Statute 104.38 (1973), a "right of reply" statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor. 2 [418 U.S. 241, 245] Appellant sought a declaration that 104.38 was unconstitutional. After an emergency hearing requested by appellee, the Circuit Court denied injunctive relief because, absent special circumstances, no injunction could properly issue against the commission of a crime, and held that 104.38 was unconstitutional as an infringement on the freedom of the press under the First and Fourteenth Amendments to the Constitution. 38 Fla. Supp. 80 (1972). The Circuit Court concluded that dictating what a newspaper must print was no different from dictating what it must not print. The Circuit Judge viewed the statute's vagueness as serving "to restrict and stifle protected expression." Id., at 83. Appellee's cause was dismissed with prejudice. On direct appeal, the Florida Supreme Court reversed, holding that 104.38 did not violate constitutional guarantees. 287 So.2d 78 (1973). 3 It held that free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court's view, furthered the "broad societal interest in the free flow of information to the public." Id., at 82. It also held that the statute is [418 U.S. 241, 246] not impermissibly vague; the statute informs "those who are subject to it as to what conduct on their part will render them liable to its penalties." Id., at 85. 4 Civil remedies, including damages, were held to be available under this statute; the case was remanded to the trial court for further proceedings not inconsistent with the Florida Supreme Court's opinion. We postponed consideration of the question of jurisdiction to the hearing of the case on the merits. 414 U.S. 1142 (1974). II Although both parties contend that this Court has jurisdiction to review the judgment of the Florida Supreme Court, a suggestion was initially made that the judgment of the Florida Supreme Court might not be "final" under 28 U.S.C. 1257. 5 In North Dakota State Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156 (1973), we reviewed a judgment of the North Dakota Supreme Court, under which the case had been remanded so that further state proceedings could be conducted respecting Snyder's application for a permit to operate a drug store. We held that to be a final judgment for purposes of our jurisdiction. Under the principles of finality enunciated in Snyder's Stores, the judgment of [418 U.S. 241, 247] the Florida Supreme Court in this case is ripe for review by this Court. 6 III A

The challenged statute creates a right to reply to press criticism of a candidate for nomination or election. The statute was enacted in 1913, and this is only the second recorded case decided under its provisions. 7 Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for vagueness since no editor could know exactly what words would call the statute into operation. It is also contended that the statute fails to distinguish between critical comment which is and which is not defamatory. B The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that [418 U.S. 241, 248] government has an obligation to ensure that a wide variety of views reach the public. 8 The contentions of access proponents will be set out in some detail. 9 It is urged that at the time the First Amendment to the Constitution 10 was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers. 11 A true marketplace of ideas existed in which there was relatively easy access to the channels of communication. Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. In the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the [418 U.S. 241, 249] use of communications satellites, and the specter of a "wired" nation by means of an expanding cable television network with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution. Newspapers have become big business and there are far fewer of them to serve a larger literate population. 12 Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, 13 are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events. Major metropolitan newspapers have collaborated to establish news services national in scope. 14 Such national news organizations provide syndicated "interpretive reporting" as well as syndicated features and commentary, all of which can serve as part of the new school of "advocacy journalism." The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward [418 U.S. 241, 250] concentration of control of outlets to inform the public. The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. 15 Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership. "This concentration of nationwide news organizations - like other large institutions - has grown increasingly remote from and unresponsive to the popular constituencies on which they depend and which depend on them." Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973). Appellee cites the report of the Commission on Freedom of the Press, chaired by Robert M. Hutchins, in which it was stated, as long ago as 1947, that "[t]he right of free [418 U.S. 241, 251] public expression has . . . lost its earlier reality." Commission on Freedom of the Press, A Free and Responsible Press 15 (1947).

The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, 16 have made entry into the marketplace of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be "surrogates for the public" carries with it a concomitant fiduciary obligation to account for that stewardship. 17 From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market. Proponents of enforced access to the press take comfort from language in several of this Court's decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated Press v. United States, 326 U.S. 1, 20 (1945), the Court, in [418 U.S. 241, 252] rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated: "The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." (Footnote omitted.) In New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), the Court spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." It is argued that the "uninhibited, robust" debate is not "wide-open" but open only to a monopoly in control of the press. Appellee cites the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 47 , and n. 15 (1971), which he suggests seemed to invite experimentation by the States in right-to-access regulation of the press. 18 [418 U.S. 241, 253] Access advocates note that MR. JUSTICE DOUGLAS a decade ago expressed his deep concern regarding the effects of newspaper monopolies: "Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money." "The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . ." The Great Rights 124-125, 127 (E. Cahn ed. 1963). They also claim the qualified support of Professor Thomas I. Emerson, who has written that "[a] limited right of access to the press can be safely enforced," [418 U.S. 241, 254] although he believes that "[g]overnment measures to encourage a multiplicity of outlets, rather than compelling a few outlets to represent everybody, seems a preferable course of action." T. Emerson, The System of Freedom of Expression 671 (1970). IV However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. 19 If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years. 20 The Court foresaw the problems relating to government-enforced access as early as its decision in Associated Press v. United States, supra. There it carefully contrasted the private "compulsion to print" called for by the Association's bylaws with the provisions of the District Court decree against appellants which "does not compel AP or its members to permit publication of anything which their `reason' tells them should not be published." 326 U.S., at 20 n. 18. In Branzburg v. Hayes, 408 U.S. 665, 681 (1972), we emphasized that the cases then [418 U.S. 241, 255] before us "involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no

express or implied command that the press publish what it prefers to withhold." In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973), the plurality opinion as to Part III noted: "The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers - and hence advertisers - to assure financial success; and, second, the journalistic integrity of its editors and publishers." An attitude strongly adverse to any attempt to extend a right of access to newspapers was echoed by other Members of this Court in their separate opinions in that case. Id., at 145 (STEWART, J., concurring); id., at 182 n. 12 (BRENNAN, J., joined by MARSHALL, J., dissenting). Recently, while approving a bar against employment advertising specifying "male" or "female" preference, the Court's opinion in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 391 (1973), took pains to limit its holding within narrow bounds: "Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial." Dissenting in Pittsburgh Press, MR. JUSTICE STEWART, joined by MR. JUSTICE DOUGLAS, expressed the view that no "government agency - local, state, or federal - can tell [418 U.S. 241, 256] a newspaper in advance what it can print and what it cannot." Id., at 400. See Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 135 (CA9 1971). We see that beginning with Associated Press, supra, the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "`reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated. Appellee's argument that the Florida statute does not amount to a restriction of appellant's right to speak because "the statute in question here has not prevented the Miami Herald from saying anything it wished" 21 begs the core question. Compelling editors or publishers to publish that which "`reason' tells them should not be published" is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. Grosjean v. American Press Co., 297 U.S. 233, 244 -245 (1936). The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the [418 U.S. 241, 257] finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available. 22 Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. 23 Government-enforced right of access inescapably "dampens the vigor and limits the variety of public debate," New York Times Co. v. Sullivan, 376 U.S., at 279 . The Court, in Mills v. Alabama, 384 U.S. 214, 218 (1966), stated: "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates . . . ." [418 U.S. 241, 258] Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. 24 The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

It is so ordered. Footnotes [ Footnote 1 ] The text of the September 20, 1972, editorial is as follows: "The State's Laws And Pat Tornillo "LOOK who's upholding the law! "Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking `the knowledge to be a legislator, as evidenced by his failure to file a list of contributions to and expenditures of his campaign as required by law.' "Czar Tornillo calls `violation of this law inexcusable.' "This is the same Pat Tornillo who led the CTA strike from February 19 to March 11, 1968, against the school children and taxpayers of Dade Country. Call it whatever you will, it was an illegal act against the public interest and clearly prohibited by the statutes. "We cannot say it would be illegal but certainly it would be inexcusable of the voters if they sent Pat Tornillo to Tallahassee to occupy the seat for District 103 in the House of Representatives." The text of the September 29, 1972, editorial is as follows: "FROM the people who brought you this - the teacher strike of '68 - come now instructions on how to vote for responsible government, i.e., against Crutcher Harrison and Ethel Beckham, for Pat Tornillo. The tracts and blurbs and bumper stickers pile up daily in teachers' school mailboxes amidst continuing pouts that the School Board should be delivering all this at your expense. The screeds [418 U.S. 241, 244] say the strike is not an issue. We say maybe it wouldn't be were it not a part of a continuation of disregard of any and all laws the CTA might find aggravating. Whether in defiance of zoning laws at CTA Towers, contracts and laws during the strike, or more recently state prohibitions against soliciting campaign funds amongst teachers, CTA says fie and try and sue us - what's good for CTA is good for CTA and that is natural law. Tornillo's law, maybe. For years now he has been kicking the public shin to call attention to his shakedown statesmanship. He and whichever acerbic prexy is in alleged office have always felt their private ventures so chock-full of public weal that we should leap at the chance to nab the tab, be it half the Glorious Leader's salary or the dues checkoff or anything else except perhaps mileage on the staff hydrofoil. Give him public office, says Pat, and he will no doubt live by the Golden Rule. Our translation reads that as more gold and more rule." [ Footnote 2 ] "104.38 Newspaper assailing candidate in an election; space for reply - If any newspaper in its columns assails the personal character [418 U.S. 241, 245] of any candidate for nomination or for election in any election, or charges said candidate with malfeasance or misfeasance in office, or otherwise attacks his official record, or gives to another free space for such purpose, such newspaper shall upon request of such candidate immediately publish free of cost any reply he may make thereto in as conspicuous a place and in the same kind of type as the matter that calls for such reply, provided such reply does not take up more space than the matter replied to. Any person or firm failing to comply with the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in 775.082 or 775.083." [ Footnote 3 ] The Supreme Court did not disturb the Circuit Court's holding that injunctive relief was not proper in this case even if the statute were constitutional. According to the Supreme Court neither side took issue with that part of the Circuit Court's decision. 287 So.2d, at 85. [ Footnote 4 ] The Supreme Court placed the following limiting construction on the statute: "[W]e hold that the mandate of the statute refers to `any reply' which is wholly responsive to the charge made in the editorial or other article in a newspaper being replied to and further that such reply will be neither libelous nor slanderous of the publication nor anyone else, nor vulgar nor profane." Id., at 86. [ Footnote 5 ] Appellee's Response to Appellant's Jurisdictional Statement and Motion to Affirm the Judgment Below or, in the Alternative, to Dismiss the Appeal 4-7. [ Footnote 6 ] Both appellant and appellee claim that the uncertainty of the constitutional validity of 104.38 restricts the present exercise of First Amendment rights. Brief for Appellant 41; Brief for Appellee 79. Appellant finds urgency for the present consideration of the constitutionality of the statute in the upcoming 1974 elections. Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture of 104.38 could only further harm the operation of a free press. Mills v. Alabama, 384 U.S. 214, 221 -222 (1966) (DOUGLAS, J., concurring). See also Organization for a Better Austin v. Keefe, 402 U.S. 415, 418 n. (1971).

[ Footnote 7 ] In its first court test the statute was declared unconstitutional. State v. News-Journal Corp., 36 Fla. Supp. 164 (Volusia County Judge's Court, 1972). In neither of the two suits, the instant action and the News-Journal action, has the Florida Attorney General defended the statute's constitutionality. [ Footnote 8 ] See generally Barron, Access to the Press - A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967). [ Footnote 9 ] For a good overview of the position of access advocates see Lange, The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment, 52 N.C. L. Rev. 1, 8-9 (1973) (hereinafter Lange). [ Footnote 10 ] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [ Footnote 11 ] See Commission on Freedom of the Press, A Free and Responsible Press 14 (1947) (hereinafter sometimes Commission). [ Footnote 12 ] Commission 15. Even in the last 20 years there has been a significant increase in the number of people likely to read newspapers. Bagdikian, Fat Newspapers and Slim Coverage, Columbia Journalism Review 15, 16 (Sept./Oct. 1973). [ Footnote 13 ] "Nearly half of U.S. daily newspapers, representing some three-fifths of daily and Sunday circulation, are owned by newspaper groups and chains, including diversified business conglomerates. One-newspaper towns have become the rule, with effective competition operating in only 4 percent of our large cities." Background Paper by Alfred Balk in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 18 (1973). [ Footnote 14 ] Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973). [ Footnote 15 ] "Local monopoly in printed news raises serious questions of diversity of information and opinion. What a local newspaper does not print about local affairs does not see general print at all. And, having the power to take initiative in reporting and enunciation of opinions, it has extraordinary power to set the atmosphere and determine the terms of local consideration of public issues." B. Bagdikian, The Information Machines 127 (1971). [ Footnote 16 ] The newspapers have persuaded Congress to grant them immunity from the antitrust laws in the case of "failing" newspapers for joint operations. 84 Stat. 466, 15 U.S.C. 1801 et seq. [ Footnote 17 ] "Freedom of the press is a right belonging, like all rights in a democracy, to all the people. As a practical matter, however, it can be exercised only by those who have effective access to the press. Where financial, economic, and technological conditions limit such access to a small minority, the exercise of that right by that minority takes on fiduciary or quasi-fiduciary characteristics." A. MacLeish in W. Hocking, Freedom of the Press 99 n. 4 (1947) (italics omitted). [ Footnote 18 ] "If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the [418 U.S. 241, 253] direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.[fn[*]] "[fn[*]] Some states have adopted retraction statutes or right-of-reply statutes . . . . "One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the Press - A New First Amendment Right, 80 Harv. L. Rev. 1641, 1666-1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual's interest in access to the press as well as the individual's interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual's interest since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual's interest too narrowly." [ Footnote 19 ] The National News Council, an independent and voluntary body concerned with press fairness, was created in 1973 to provide a means for neutral examination of claims of press inaccuracy. The Council was created following the publication of the Twentieth

Century Fund Task Force Report for a National News Council, A Free and Responsive Press. The background paper attached to the Report dealt in some detail with the British Press Council, seen by the author of the paper as having the most interest to the United States of the European press councils. [ Footnote 20 ] Because we hold that 104.38 violates the First Amendment's guarantee of a free press we have no occasion to consider appellant's further argument that the statute is unconstitutionally vague. [ Footnote 21 ] Brief for Appellee 5. [ Footnote 22 ] "However, since the amount of space a newspaper can devote to `live news' is finite,[*] if a newspaper is forced to publish a particular item, it must as a practical matter, omit something else. "[*] The number of column inches available for news is predetermined by a number of financial and physical factors, including circulation, the amount of advertising, and, increasingly, the availability of newsprint. . . ." Note, 48 Tulane L. Rev. 433, 438 (1974) (one footnote omitted). Another factor operating against the "solution" of adding more pages to accommodate the access matter is that "increasingly subscribers complain of bulky, unwieldy papers." Bagdikian, Fat Newspapers and Slim Coverage, Columbia Journalism Review 19 (Sept./Oct. 1973). [ Footnote 23 ] See the description of the likely effect of the Florida statute on publishers, in Lange 70-71. [ Footnote 24 ] "[L]iberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper. A journal does not merely print observed facts the way a cow is photographed through a plateglass window. As soon as the facts are set in their context, you have interpretation and you have selection, and editorial selection opens the way to editorial suppression. Then how can the state force abstention from discrimination in the news without dictating selection?" 2 Z. Chafee, Government and Mass Communications 633 (1947). MR. JUSTICE BRENNAN, with whom MR. JUSTICE REHNQUIST joins, concurring. I join the Court's opinion which, as I understand it, addresses only "right of reply" statutes and implies no view upon the constitutionality of "retraction" statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction. [418 U.S. 241, 259] See generally Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730, 1739-1747 (1967). MR. JUSTICE WHITE, concurring. The Court today holds that the First Amendment bars a State from requiring a newspaper to print the reply of a candidate for public office whose personal character has been criticized by that newspaper's editorials. According to our accepted jurisprudence, the First Amendment erects a virtually insurmountable barrier between government and the print media so far as government tampering, in advance of publication, with news and editorial content is concerned. New York Times Co. v. United States, 403 U.S. 713 (1971). A newspaper or magazine is not a public utility subject to "reasonable" governmental regulation in matters affecting the exercise of journalistic judgment as to what shall be printed. Cf. Mills v. Alabama, 384 U.S. 214, 220 (1966). We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we prefer "the power of reason as applied through public discussion" 1 and remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation's press. "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of [418 U.S. 241, 260] government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change . . . muzzles one of the very

agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free." Mills v. Alabama, supra, at 218-219. Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed. The press would be unlicensed because, in Jefferson's words, "[w]here the press is free, and every man able to read, all is safe." 2 Any other accommodation - any other system that would supplant private control of the press with the heavy hand of government intrusion - would make the government the censor of what the people may read and know. To justify this statute, Florida advances a concededly important interest of ensuring free and fair elections by means of an electorate informed about the issues. But [418 U.S. 241, 261] prior compulsion by government in matters going to the very nerve center of a newspaper - the decision as to what copy will or will not be included in any given edition collides with the First Amendment. Woven into the fabric of the First Amendment is the unexceptionable, but nonetheless timeless, sentiment that "liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper." 2 Z. Chafee, Government and Mass Communications 633 (1947). The constitutionally obnoxious feature of 104.38 is not that the Florida Legislature may also have placed a high premium on the protection of individual reputational interests; for government certainly has "a pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Quite the contrary, this law runs afoul of the elementary First Amendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor. Whatever power may reside in government to influence the publishing of certain narrowly circumscribed categories of material, see, e. g., Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973); New York Times Co. v. United States, 403 U.S., at 730 (WHITE, J., concurring), we have never thought that the First Amendment permitted public officials to dictate to the press the contents of its news columns or the slant of its editorials. But though a newspaper may publish without government censorship, it has never been entirely free from liability for what it chooses to print. See ibid. Among other things, the press has not been wholly at liberty to publish falsehoods damaging to individual reputation. At least until today, we have cherished the average citizen's [418 U.S. 241, 262] reputation interest enough to afford him a fair chance to vindicate himself in an action for libel characteristically provided by state law. He has been unable to force the press to tell his side of the story or to print a retraction, but he has had at least the opportunity to win a judgment if he has been able to prove the falsity of the damaging publication, as well as a fair chance to recover reasonable damages for his injury. Reaffirming the rule that the press cannot be forced to print an answer to a personal attack made by it, however, throws into stark relief the consequences of the new balance forged by the Court in the companion case also announced today. Gertz v. Robert Welch, Inc., post, p. 323, goes far toward eviscerating the effectiveness of the ordinary libel action, which has long been the only potent response available to the private citizen libeled by the press. Under Gertz, the burden of proving liability is immeasurably increased, proving damages is made exceedingly more difficult, and vindicating reputation by merely proving falsehood and winning a judgment to that effect are wholly foreclosed. Needlessly, in my view, the Court trivializes and denigrates the interest in reputation by removing virtually all the protection the law has always afforded. Of course, these two decisions do not mean that because government may not dictate what the press is to print, neither can it afford a remedy for libel in any form. Gertz itself leaves a putative remedy for libel intact, albeit in severely emaciated form; and the press certainly remains liable for knowing or reckless falsehoods under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, however improper an injunction against publication might be. One need not think less of the First Amendment to sustain reasonable methods for allowing the average citizen [418 U.S. 241, 263] to redeem a falsely tarnished reputation. Nor does one have to doubt the genuine decency, integrity, and good sense of the vast majority of professional journalists to support the right of any individual to have his day in court when he has been falsely maligned in the public press. The press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen. "In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise." "Without . . . a lively sense of responsibility a free press may

readily become a powerful instrument of injustice." Pennekamp v. Florida, 328 U.S. 331 , 356, 365 (1946) (Frankfurter, J., concurring) (footnote omitted). To me it is a near absurdity to so deprecate individual dignity, as the Court does in Gertz, and to leave the people at the complete mercy of the press, at least in this stage of our history when the press, as the majority in this case so well documents, is steadily becoming more powerful and much less likely to be deterred by threats of libel suits. [ Footnote 1 ] Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). [ Footnote 2 ] Letter to Col. Charles Yancey in 14 The Writings of Thomas Jefferson 384 (Lipscomb ed. 1904). [418 U.S. 241, 264]

TURNER BROADCASTING SYSTEM, INC., ET AL., APPELLANTS v. FEDERAL COMMUNICATIONS COMMISSION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 93-44 Argued January 12, 1994 Decided June 27, 1994 Concerned that a competitive imbalance between cable television and over-the-air broadcasters was endangering the broadcasters' ability to compete for a viewing audience, and thus for necessary operating revenues, Congress passed the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 of the Act require cable television systems to devote a specified portion of their channels to the transmission of local commercial and public broadcast stations. Soon after the Act became law, appellants, numerous cable programmers and operators, challenged the constitutionality of the must-carry provisions. The District Court granted the United States and intervenor defendants summary judgment, ruling that the provisions are consistent with the First Amendment. The court rejected appellants' argument that the provisions warrant strict scrutiny as a content-based regulation and sustained them under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367 , concluding that they are sufficiently tailored to serve the important governmental interest in the preservation of local broadcasting. Held: The judgment is vacated, and the case is remanded. 819 F.Supp. 32, vacated and remanded. JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II, and III-A, concluding that the appropriate standard by which to evaluate the constitutionality of the must-carry provisions is the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. Pp. 11-41. (a) Because the must-carry provisions impose special obligations Page II upon cable operators and special burdens upon cable programmers, heightened First Amendment scrutiny is demanded. The less rigorous standard of scrutiny now reserved for broadcast regulation, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 , should not be extended to cable regulation, since the rationale for such review - the dual problems of spectrum scarcity and signal interference - does not apply in the context of cable. Nor is the mere assertion of dysfunction or failure in the cable market, without more, sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media. Moreover, while enforcement of a generally applicable law against members of the press may sometimes warrant only rational basis scrutiny, laws that single out the press for special treatment pose a particular danger of abuse by the State and are always subject to some degree of heightened scrutiny. Pp. 11-16. (b) The must-carry rules are content-neutral, and thus are not subject to strict scrutiny. They are neutral on their face, because they distinguish between speakers in the television programming market based only upon the manner in which programmers transmit their messages to viewers, not the messages they carry. The purposes underlying the must-carry rules are also unrelated to content. Congress' overriding objective was not to favor programming of a particular content, but rather to preserve access to free television programming for the 40 percent of Americans without cable. The challenged provisions' design and operation confirm this purpose. Congress' acknowledgement that broadcast television stations make a valuable contribution to the Nation's communications structure does not indicate that Congress regarded broadcast programming to be more valuable than cable programming; rather, it reflects only the recognition that the services provided by broadcast television have some intrinsic value, and are worth preserving against the threats posed by cable. It is also incorrect to suggest that Congress enacted must-carry in an effort to exercise content control over what

subscribers view on cable television, given the minimal extent to which the Federal Communications Commission and Congress influence the programming offered by broadcast stations. Pp. 16-28. (c) None of appellants' additional arguments suffices to require strict scrutiny in this case. The provisions do not intrude on the editorial control of cable operators. They are content-neutral in application, and they do not force cable operators to alter their own messages to respond to the broadcast programming they must carry. In addition, the physical connection between the television set and the cable network gives cable operators bottleneck, or Page III gatekeeper, control over most programming delivered into subscribers' homes. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 , and Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1 , distinguished. Strict scrutiny is also not triggered by Congress' preference for broadcasters over cable operators, since it is based not on the content of the programming each group offers, but on the belief that broadcast television is in economic peril. Nor is such scrutiny warranted by the fact that the provisions single out certain members of the press - here, cable operators - for disfavored treatment. Such differential treatment is justified by the special characteristics of the cable medium - namely, the cable operators' bottleneck monopoly and the dangers this power poses to the viability of broadcast television - and because the must-carry provisions are not structured in a manner that carries the inherent risk of undermining First Amendment interests. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 , and Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 , distinguished. Pp. 28-38. (d) Under O'Brien, a content-neutral regulation will be sustained if it furthers an important governmental interest that is unrelated to the suppression of free expression and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Viewed in the abstract, each of the governmental interests asserted-preserving the benefits of free, over-the-air local broadcast stations, promoting the widespread dissemination of information from a multiplicity of sources, and promoting fair competition in the market for television programming-is important. Pp. 38-41. JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE SOUTER, concluded in Part III-B that the fact that the asserted interests are important in the abstract does not mean that the must-carry provisions will, in fact, advance those interests. The Government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Thus, the Government must adequately show that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry. Assuming an affirmative answer, the Government still bears the burden of showing that the remedy adopted does not burden substantially more speech than is necessary to further such interests. On the state of the record developed, and in the absence of findings of fact from the District Court, it is not possible to conclude that the Government has satisfied either inquiry. Because there are genuine issues of Page IV material fact still to be resolved on this record, the District Court erred in granting summary judgment for the Government. Pp. 4145. JUSTICE STEVENS, though favoring affirmance, concurred in the judgment because otherwise no disposition of the case would be supported by five Justices and because he is in substantial agreement with JUSTICE KENNEDY's analysis of this case. P. 6. KENNEDY, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part I, the opinion of the Court with respect to Parts II-A and II-B, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined, the opinion of the Court with respect to Parts II-C, II-D, and III-A, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, and SOUTER, JJ., joined, and an opinion with respect to Part III-B, in which REHNQUIST, C.J., and BLACKMUN and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion. STEVENS, J., filed an opinion concurring in part and concurring in the judgment. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which SCALIA and GINSBURG, JJ., joined, and in Parts I and III of which THOMAS, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 1] JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Court, except as to Part III-B. Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations. This case presents the question whether these provisions abridge the freedom of speech or of the press, in violation of the First Amendment.

The United States District Court for the District of Columbia granted summary judgment for the United States, holding that the challenged provisions are consistent with the First Amendment. Because issues of material fact remain unresolved in the record as developed thus far, we vacate the District Court's judgment and remand the case for further proceedings. I A The role of cable television in the Nation's communications system has undergone dramatic change over the past 45 years. Given the pace of technological advancement and the increasing convergence between cable and [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 2] other electronic media, the cable industry today stands at the center of an ongoing telecommunications revolution with still undefined potential to affect the way we communicate and develop our intellectual resources. The earliest cable systems were built in the late 1940's to bring clear broadcast television signals to remote or mountainous communities. The purpose was not to replace broadcast television, but to enhance it. See United States v. Southwestern Cable Co., 392 U.S. 157, 161 -164 (1968); D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video 1.02 (1992); M. Hamburg, All About Cable, ch. 1 (1979). Modern cable systems do much more than enhance the reception of nearby broadcast television stations. With the capacity to carry dozens of channels and import distant programming signals via satellite or microwave relay, today's cable systems are in direct competition with over-the-air broadcasters as an independent source of television programming. Broadcast and cable television are distinguished by the different technologies through which they reach viewers. Broadcast stations radiate electromagnetic signals from a central transmitting antenna. These signals can be captured, in turn, by any television set within the antenna's range. Cable systems, by contrast, rely upon a physical, point-to-point connection between a transmission facility and the television sets of individual subscribers. Cable systems make this connection much like telephone companies, using cable or optical fibers strung above-ground or buried in ducts to reach the homes or businesses of subscribers. The construction of this physical infrastructure entails the use of public rightsof-way and easements, and often results in the disruption of traffic on streets and other public property. As a result, the cable medium may depend for its very existence upon express permission from local governing [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 3] authorities. See generally Community Communications Co. v. Boulder, 660 F.2d 1370, 1377-1378 (CA10 1981). Cable technology affords two principal benefits over broadcast. First, it eliminates the signal interference sometimes encountered in over-the-air broadcasting, and thus gives viewers undistorted reception of broadcast stations. Second, it is capable of transmitting many more channels than are available through broadcasting, giving subscribers access to far greater programming variety. More than half of the cable systems in operation today have a capacity to carry between 30 and 53 channels. 1994 Television and Cable Factbook I-69. And about 40 percent of cable subscribers are served by systems with a capacity of more than 53 channels. Ibid. Newer systems can carry hundreds of channels, and many older systems are being upgraded with fiber optic rebuilds and digital compression technology to increase channel capacity. See, e.g., Cablevision Systems Adds to Rapid Fiber Growth in Cable Systems, Communications Daily, pp. 6-7 (Feb. 26, 1993). The cable television industry includes both cable operators (those who own the physical cable network and transmit the cable signal to the viewer) and cable programmers (those who produce television programs and sell or license them to cable operators). In some cases, cable operators have acquired ownership of cable programmers, and vice versa. Although cable operators may create some of their own programming, most of their programming is drawn from outside sources. These outside sources include not only local or distant broadcast stations, but also the many national and regional cable programming networks that have emerged in recent years, such as CNN, MTV, ESPN, TNT, C-Span, The Family Channel, Nickelodeon, Arts and Entertainment, Black Entertainment Television, CourtTV, The Discovery Channel, American Movie Classics, Comedy Central, The Learning Channel, and [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 4] The Weather Channel. Once the cable operator has selected the programming sources, the cable system functions, in essence, as a conduit for the speech of others, transmitting it on a continuous and unedited basis to subscribers. See Brenner, Cable Television and the Freedom of Expression, 1988 Duke L.J. 329, 339 ("For the most part, cable personnel do not review any of the material provided by cable networks . . . . [C]able systems have no conscious control over program services provided by others").

In contrast to commercial broadcast stations, which transmit signals at no charge to viewers and generate revenues by selling time to advertisers, cable systems charge subscribers a monthly fee for the right to receive cable programming, and rely to a lesser extent on advertising. In most instances, cable subscribers choose the stations they will receive by selecting among various plans, or "tiers," of cable service. In a typical offering, the basic tier consists of local broadcast stations plus a number of cable programming networks selected by the cable operator. For an additional cost, subscribers can obtain channels devoted to particular subjects or interests, such as recent-release feature movies, sports, children's programming, sexually explicit programming, and the like. Many cable systems also offer pay-per-view service, which allows an individual subscriber to order and pay a one-time fee to see a single movie or program at a set time of the day. See J. Goodale, All About Cable: Legal and Business Aspects of Cable and Pay Television 5.052. (1989); Brenner, supra, at 334, n. 22. B On October 5, 1992, Congress overrode a Presidential veto to enact the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460 (1992 Cable Act or Act). Among other things, the [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 5] Act subjects the cable industry to rate regulation by the Federal Communications Commission (FCC) and by municipal franchising authorities; prohibits municipalities from awarding exclusive franchises to cable operators; imposes various restrictions on cable programmers that are affiliated with cable operators; and directs the FCC to develop and promulgate regulations imposing minimum technical standards for cable operators. At issue in this case is the constitutionality of the so-called must-carry provisions, contained in 4 and 5 of the Act, which require cable operators to carry the signals of a specified number of local broadcast television stations. Section 4 requires carriage of "local commercial television stations," defined to include all full power television broadcasters, other than those qualifying as "noncommercial educational" stations under 5, that operate within the same television market as the cable system. 4, 47 U.S.C. 534(b)(1)(B), (h)(1)(A) (1988 ed., Supp. IV). 1 Cable systems with more than 12 active channels, and more than 300 subscribers, are required to set aside up to one-third of their channels for commercial broadcast stations that request carriage. 534(b)(1)(B). Cable systems with more than 300 subscribers, but only 12 or fewer active channels, must carry the signals of three commercial broadcast stations. 534(b)(1)(A). 2 [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 6] If there are fewer broadcasters requesting carriage than slots made available under the Act, the cable operator is obligated to carry only those broadcasters who make the request. If, however, there are more requesting broadcast stations than slots available, the cable operator is permitted to choose which of these stations it will carry. 534(b)(2). 3 The broadcast signals carried under this provision must be transmitted on a continuous, uninterrupted basis, 534(b)(3), and must be placed in the same numerical channel position as when broadcast over the air. 534(b)(6). Further, subject to a few exceptions, a cable operator may not charge a fee for carrying broadcast signals in fulfillment of its must-carry obligations. 534(b)(10). Section 5 of the Act imposes similar requirements regarding the carriage of local public broadcast television stations, referred to in the Act as local "noncommercial educational television stations." 47 U.S.C. 535(a) (1988 ed., Supp. IV). 4 A cable system with 12 [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 7] or fewer channels must carry one of these stations; a system of between 13 and 36 channels must carry between one and three; and a system with more than 36 channels must carry each local public broadcast station requesting carriage. 535(b)(2)(A), (b)(3)(A), (b)(3)(D). The Act requires a cable operator to import distant signals in certain circumstances, but provides protection against substantial duplication of local noncommercial educational stations. See 535(b)(3)(B), (e). As with commercial broadcast stations, 5 requires cable system operators to carry the program schedule of the public broadcast station in its entirety and at its same over-the-air channel position. 535(g)(1), (g)(5). Taken together, therefore, 4 and 5 subject all but the smallest cable systems nationwide to must-carry obligations, and confer must-carry privileges on all full power broadcasters operating within the same television market as a qualified cable system. C

Congress enacted the 1992 Cable Act after conducting three years of hearings on the structure and operation of the cable television industry. See S.Rep. No. 102-92, pp. 3-4 (1991) (describing hearings); H.R.Rep. No. 102-628, p. 74 (1992) (same). The conclusions Congress drew from its factfinding process are recited in the text of the Act itself. See 2(a)(1)-(21). In brief, Congress found that the physical characteristics of cable transmission, compounded by the increasing concentration of economic power in the cable industry, are endangering the ability of over-the-air broadcast television stations to compete for a viewing audience, and thus for necessary operating revenues. Congress determined that [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 8] regulation of the market for video programming was necessary to correct this competitive imbalance. In particular, Congress found that over 60 percent of the households with television sets subscribe to cable, 2(a)(3), and, for these households, cable has replaced over-the-air broadcast television as the primary provider of video programming. 2(a)(17). This is so, Congress found, because "[m]ost subscribers to cable television systems do not or cannot maintain antennas to receive broadcast television services, do not have input selector switches to convert from a cable to antenna reception system, or cannot otherwise receive broadcast television services." Ibid. In addition, Congress concluded that, due to "local franchising requirements and the extraordinary expense of constructing more than one cable television system to serve a particular geographic area," the overwhelming majority of cable operators exercise a monopoly over cable service. 2(a)(2). "The result," Congress determined, "is undue market power for the cable operator as compared to that of consumers and video programmers." Ibid. According to Congress, this market position gives cable operators the power and the incentive to harm broadcast competitors. The power derives from the cable operator's ability, as owner of the transmission facility, to "terminate the retransmission of the broadcast signal, refuse to carry new signals, or reposition a broadcast signal to a disadvantageous channel position." 2(a)(15). The incentive derives from the economic reality that "[c]able television systems and broadcast television stations increasingly compete for television advertising revenues." 2(a)(14). By refusing carriage of broadcasters' signals, cable operators, as a practical matter, can reduce the number of households that have access to the broadcasters' programming, and thereby capture advertising dollars that would otherwise go to broadcast stations. 2(a)(15). [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 9] Congress found, in addition, that increased vertical integration in the cable industry is making it even harder for broadcasters to secure carriage on cable systems, because cable operators have a financial incentive to favor their affiliated programmers. 2(a)(5). Congress also determined that the cable industry is characterized by horizontal concentration, with many cable operators sharing common ownership. This has resulted in greater "barriers to entry for new programmers and a reduction in the number of media voices available to consumers." 2(a)(4). In light of these technological and economic conditions, Congress concluded that, unless cable operators are required to carry local broadcast stations, "[t]here is a substantial likelihood that . . . additional local broadcast signals will be deleted, repositioned, or not carried," 2(a)(15); the "marked shift in market share" from broadcast to cable will continue to erode the advertising revenue base which sustains free local broadcast television, 2(a)(13)-(14); and that, as a consequence, "the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized." 2(a)(16). D Soon after the Act became law, appellants filed these five consolidated actions in the United States District Court for the District of Columbia against the United States and the Federal Communications Commission (hereinafter referred to collectively as the Government), challenging the constitutionality of the must-carry provisions. Appellants, plaintiffs below, are numerous cable programmers and cable operators. After additional parties intervened, a three-judge District Court convened under 28 U.S.C. 2284 to hear the actions. 1992 Cable Act 23, 47 U.S.C. 555(c)(1) (1988 ed., Supp. IV). Each of the plaintiffs filed a motion for summary [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 10] judgment; several intervenor defendants filed cross-motions for summary judgment; and the Government filed a cross-motion to dismiss. Although the Government had not asked for summary judgment, the District Court, in a divided opinion, granted summary judgment in favor of the Government and the other intervenor defendants, ruling that the must-carry provisions are consistent with the First Amendment. 819 F.Supp. 32 (DC 1993). The court found that, in enacting the must-carry provisions, Congress employed "its regulatory powers over the economy to impose order upon a market in dysfunction." Id., at 40. The court characterized the 1992 Cable Act as

"simply industry-specific antitrust and fair trade practice regulatory legislation," ibid., and said that the must-carry requirements "are essentially economic regulation designed to create competitive balance in the video industry as a whole, and to redress the effects of cable operators' anticompetitive practices." Ibid. The court rejected appellants' contention that the must-carry requirements warrant strict scrutiny as a content-based regulation, concluding that both the commercial and public broadcast provisions "are, in intent as well as form, unrelated (in all but the most recondite sense) to the content of any messages that [the] cable operators, broadcasters, and programmers have in contemplation to deliver." Ibid. The court proceeded to sustain the must-carry provisions under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367 (1968), concluding that the preservation of local broadcasting is an important governmental interest, and that the must-carry provisions are sufficiently tailored to serve that interest. 819 F.Supp., at 45-47. Judge Williams dissented. He acknowledged the "very real problem" that "cable systems control access `bottlenecks' to an important communications medium," id., at 57, but concluded that Congress may not address that [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 11] problem by extending access rights only to broadcast television stations. In his view, the must-carry rules are content-based, and thus subject to strict scrutiny, because they require cable operators to carry speech they might otherwise choose to exclude, and because Congress' decision to grant favorable access to broadcast programmers rested "in part, but quite explicitly, on a finding about their content." Id., at 58. Applying strict scrutiny, Judge Williams determined that the interests advanced in support of the law are inadequate to justify it. While assuming "as an abstract matter" that the interest in preserving access to free television is compelling, he found "no evidence that this access is in jeopardy." Id., at 62. Likewise, he concluded that the rules are insufficiently tailored to the asserted interest in programming diversity because cable operators "now carry the vast majority of local stations," and thus, to the extent the rules have any effect at all, "it will be only to replace the mix chosen by cablecasters - whose livelihoods depend largely on satisfying audience demand - with a mix derived from congressional dictate." Id., at 61. This direct appeal followed, see 23, 47 U.S.C. 555(c)(1) (1988 ed., Supp. IV), and we noted probable jurisdiction. 509 U.S. ___ (1993). II There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. Leathers v. Medlock, 499 U.S. 439, 444 (1991). Through "original programming or by exercising editorial discretion over which stations or programs to include in its repertoire," cable programmers and operators "see[k] to communicate messages on a wide variety of topics and in a wide variety of formats." Los Angeles [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 12] v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986). By requiring cable systems to set aside a portion of their channels for local broadcasters, the must-carry rules regulate cable speech in two respects: the rules reduce the number of channels over which cable operators exercise unfettered control, and they render it more difficult for cable programmers to compete for carriage on the limited channels remaining. Nevertheless, because not every interference with speech triggers the same degree of scrutiny under the First Amendment, we must decide at the outset the level of scrutiny applicable to the must-carry provisions. A We address first the Government's contention that regulation of cable television should be analyzed under the same First Amendment standard that applies to regulation of broadcast television. It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media. Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (television), and National Broadcasting Co. v. United States, 319 U.S. 190 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (print), and Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781 (1988) (personal solicitation). But the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable regulation. The justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium. See FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984); Red Lion, supra, at 388-389, 396-399; National Broadcasting Co., 319 U.S., at 226 . As a general matter, there are more would-be broadcasters than

frequencies available in the [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 13] electromagnetic spectrum. And if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all. Id., at 212. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters. See FCC v. League of Women Voters, supra, at 377. ("The fundamental distinguishing characteristic of the new medium of broadcasting . . . is that [b]roadcast frequencies are a scarce resource [that] must be portioned out among applicants") (internal quotation marks omitted); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 799 (1978). In addition, the inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees. Red Lion, 395 U.S., at 390 . As we said in Red Lion, "[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Id., at 388; see also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 101 (1973). Although courts and commentators have criticized the scarcity rationale since its inception, 5 we have declined [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 14] to question its continuing validity as support for our broadcast jurisprudence, see FCC v. League of Women Voters, supra, at 376, n. 11, and see no reason to do so here. The broadcast cases are inapposite in the present context, because cable television does not suffer from the inherent limitations that characterize the broadcast medium. Indeed, given the rapid advances in fiber optics and digital compression technology, soon there may be no practical limitation on the number of speakers who may use the cable medium. Nor is there any danger of physical interference between two cable speakers attempting to share the same channel. In light of these fundamental technological differences between broadcast and cable transmission, application of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983) ("Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication") (footnote omitted). This is not to say that the unique physical characteristics of cable transmission should be ignored when determining the constitutionality of regulations affecting cable speech. They should not. See infra, at 32-33. But whatever relevance these physical characteristics may have in the evaluation of particular cable regulations, they do not require the alteration of settled principles of our First Amendment jurisprudence. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 15] Although the Government acknowledges the substantial technological differences between broadcast and cable, see Brief for Federal Appellees 22, it advances a second argument for application of the Red Lion framework to cable regulation. It asserts that the foundation of our broadcast jurisprudence is not the physical limitations of the electromagnetic spectrum, but rather the "market dysfunction" that characterizes the broadcast market. Because the cable market is beset by a similar dysfunction, the Government maintains, the Red Lion standard of review should also apply to cable. While we agree that the cable market suffers certain structural impediments, the Government's argument is flawed in two respects. First, as discussed above, the special physical characteristics of broadcast transmission, not the economic characteristics of the broadcast market, are what underlies our broadcast jurisprudence. See League of Women Voters, supra, at 377; National Citizens Comm. for Broadcasting, supra, at 799; Red Lion, supra, at 390. Second, the mere assertion of dysfunction or failure in a speech market, without more, is not sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657 -658 (1990); Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 256 -259 (1986); Miami Herald Publishing Co. v. Tornillo, 418 U.S., at 248 -258. By a related course of reasoning, the Government and some appellees maintain that the must-carry provisions are nothing more than industry-specific antitrust legislation, and thus warrant rational basis scrutiny under this Court's "precedents governing legislative efforts to correct market failure in a market whose commodity is speech," such as Associated Press v. United States, 326 U.S. 1 (1945), and Lorain Journal Co. v. United States, 342 U.S. 143 (1951). See Brief for Federal Appellees [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 16] 17. This contention is unavailing. Associated Press and Lorain Journal both involved actions against members of the press brought under the Sherman Antitrust Act, a law of general application. But while the enforcement of a generally

applicable law may or may not be subject to heightened scrutiny under the First Amendment, compare Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991), with Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 -567 (1991), laws that single out the press, or certain elements thereof, for special treatment "pose a particular danger of abuse by the State," Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987), and so are always subject to at least some degree of heightened First Amendment scrutiny. See Preferred Communications, supra, at 496 ("Where a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force"). Because the must-carry provisions impose special obligations upon cable operators and special burdens upon cable programmers, some measure of heightened First Amendment scrutiny is demanded. See Minneapolis Star & Tribune, supra, at 583. B At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. See Leathers v. Medlock, 499 U.S., at 449 (citing Cohen v. California, 403 U.S. 15, 24 (1971)); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 , 640-642 (1943). Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 17] this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion, rather than persuasion. These restrictions "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. ___, ___ (1991) (slip op., at 9). For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. R.A.V. v. St. Paul, 505 U.S. ___, ___ (1992) (slip op., at 4); Texas v. Johnson, 491 U.S. 397, 414 (1989). Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. See Simon & Schuster, 502 U.S., at ___ (slip op., at 11); id., at ___ (KENNEDY, J., concurring in judgment) (slip op., at 2-3); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. See Riley v. National Federation for Blind of N.C., Inc., 487 U.S., at 798 ; West Virginia Bd. of Ed. v. Barnette, supra. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, see Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. Deciding whether a particular regulation is content-based or content-neutral is not always a simple task. We have said that the "principal inquiry in determining content-neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 18] disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). See R.A.V., 505 U.S., at ___ (slip op., at 8) ("The government may not regulate [speech] based on hostility - or favoritism - towards the underlying message expressed"). The purpose, or justification, of a regulation will often be evident on its face. See Frisby v. Schultz, 487 U.S. 474, 481 (1988). But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content-based, it is not necessary to such a showing in all cases. Cf. Simon & Schuster, supra, at ___ (slip op., at 10) ("`illicit legislative intent is not the sine qua non of a violation of the First Amendment'") (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983)). Nor will the mere assertion of a content-neutral purpose be enough to save a law which, on its face, discriminates based on content. Arkansas Writers' Project, supra, at 231-232; Carey v. Brown, 447 U.S. 455, 464 -469 (1980). As a general rule, laws that, by their terms, distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based. See, e.g., Burson v. Freeman, 504 U.S. ___, ___ (1992) (slip op., at 5) ("Whether individuals may exercise their free-speech rights near polling places depends entirely on whether their speech is related to a political campaign"); Boos v. Barry, 485 U.S. 312, 318 -319 (1988) (plurality opinion) (whether municipal ordinance permits individuals to "picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not"). By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are, in most instances, content-neutral. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (ordinance prohibiting the posting of signs on [ TURNER

BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 19] public property "is neutral - indeed it is silent concerning any speaker's point of view"); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (State Fair regulation requiring that sales and solicitations take place at designated locations "applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds"). C Insofar as they pertain to the carriage of full power broadcasters, the must-carry rules, on their face, impose burdens and confer benefits without reference to the content of speech. 6 Although the provisions interfere [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 20] with cable operators' editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations, the extent of the interference does not depend upon the content of the cable operators' programming. The rules impose obligations upon all operators, save those with fewer than 300 subscribers, regardless of the programs or stations they now offer or have offered in the past. Nothing in the Act imposes a restriction, penalty, or burden by reason of the views, programs, or stations the cable operator has selected or will select. The number of channels a cable operator must set aside depends only on the operator's channel capacity, see 47 U.S.C. 534(b)(1), 535(b)(2)-(3) (1988 ed., Supp. IV); hence, an operator cannot avoid or mitigate its obligations under the Act by altering the programming it offers to subscribers. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S., at 256 -257 (newspaper may avoid access obligations by refraining from speech critical of political candidates). The must-carry provisions also burden cable programmers by reducing the number of channels for which they can compete. But, again, this burden is unrelated to content, for it extends to all cable programmers irrespective of the programming they choose to offer viewers. Cf. Boos, supra, at 319 (individuals may picket in front of a foreign embassy so long as their picket signs are not critical of the foreign government). And finally, the privileges conferred by the mustcarry provisions are also unrelated to content. The rules benefit all full power broadcasters who request carriage - be they commercial or noncommercial, independent or network - affiliated, English or Spanish language, religious or secular. The aggregate effect of the rules is thus to make every full power commercial and noncommercial broadcaster eligible for must-carry, provided only that the broadcaster operates within the same television market as a cable system. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 21] It is true that the must-carry provisions distinguish between speakers in the television programming market. But they do so based only upon the manner in which speakers transmit their messages to viewers, and not upon the messages they carry: broadcasters, which transmit over the airwaves, are favored, while cable programmers, which do not, are disfavored. Cable operators, too, are burdened by the carriage obligations, but only because they control access to the cable conduit. So long as they are not a subtle means of exercising a content preference, speaker distinctions of this nature are not presumed invalid under the First Amendment. That the must-carry provisions, on their face, do not burden or benefit speech of a particular content does not end the inquiry. Our cases have recognized that even a regulation neutral on its face may be content-based if its manifest purpose is to regulate speech because of the message it conveys. United States v. Eichman, 496 U.S. 310, 315 (1990) ("Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression") (emphasis in original) (internal quotation marks omitted); see also Ward, 491 U.S., at 791 -792; Clark v. Community for Creative Non-Violence, 468 U.S., at 293 ; cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S., ___, ___ (1993) (slip op., at 12-13). Appellants contend, in this regard, that the must-carry regulations are content-based because Congress' purpose in enacting them was to promote speech of a favored content. We do not agree. Our review of the Act and its various findings persuades us that Congress' overriding objective in enacting must-carry was not to favor programming of a particular subject matter, viewpoint, or format, but rather to preserve access to free television [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 22] programming for the 40 percent of Americans without cable. In unusually detailed statutory findings, supra, at 7-9, Congress explained that, because cable systems and broadcast stations compete for local advertising revenue, 2(a)(14)-(15), and because cable operators have a vested financial interest in favoring their affiliated programmers over broadcast stations, 2(a)(5), cable operators have a built-in "economic

incentive . . . to delete, reposition, or not carry local broadcast signals." 2(a)(16). Congress concluded that, absent a requirement that cable systems carry the signals of local broadcast stations, the continued availability of free local broadcast television would be threatened. Ibid. Congress sought to avoid the elimination of broadcast television because, in its words, "[s]uch programming is . . . free to those who own television sets and do not require cable transmission to receive broadcast television signals," 2(a)(12), and because "[t]here is a substantial governmental interest in promoting the continued availability of such free television programming, especially for viewers who are unable to afford other means of receiving programming." Ibid. By preventing cable operators from refusing carriage to broadcast television stations, the must-carry rules ensure that broadcast television stations will retain a large enough potential audience to earn necessary advertising revenue - or, in the case of noncommercial broadcasters, sufficient viewer contributions, see 2(a)(8)(B) - to maintain their continued operation. In so doing, the provisions are designed to guarantee the survival of a medium that has become a vital part of the Nation's communication system, and to ensure that every individual with a television set can obtain access to free television programming. This overriding congressional purpose is unrelated to the content of expression disseminated by cable and [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 23] broadcast speakers. Indeed, our precedents have held that "protecting noncable households from loss of regular television broadcasting service due to competition from cable systems," is not only a permissible governmental justification, but an "important and substantial federal interest." Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); see also United States v. Midwest Video Corp., 406 U.S. 649, 661 -662, 664 (1972) (plurality opinion). The design and operation of the challenged provisions confirm that the purposes underlying the enactment of the mustcarry scheme are unrelated to the content of speech. The rules, as mentioned, confer must-carry rights on all full power broadcasters, irrespective of the content of their programming. They do not require or prohibit the carriage of particular ideas or points of view. They do not penalize cable operators or programmers because of the content of their programming. They do not compel cable operators to affirm points of view with which they disagree. They do not produce any net decrease in the amount of available speech. And they leave cable operators free to carry whatever programming they wish on all channels not subject to must-carry requirements. Appellants and the dissent make much of the fact that, in the course of describing the purposes behind the Act, Congress referred to the value of broadcast programming. In particular, Congress noted that broadcast television is "an important source of local news[,] public affairs programming and other local broadcast services critical to an informed electorate," 2(a)(11); see also 2(a)(10), and that noncommercial television "provides educational and informational programming to the Nation's citizens." 2(a)(8). We do not think, however, that such references cast any material doubt on the content-neutral character of must-carry. That Congress acknowledged the local orientation of broadcast programming [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 24] and the role that noncommercial stations have played in educating the public does not indicate that Congress regarded broadcast programming as more valuable than cable programming. Rather, it reflects nothing more than the recognition that the services provided by broadcast television have some intrinsic value and, thus, are worth preserving against the threats posed by cable. See 819 F.Supp., at 44 ("Congress' solicitousness for local broadcasters' material simply rests on its assumption that they have as much to say of interest or value as the cable programmers who service a given geographic market audience"). The operation of the Act further undermines the suggestion that Congress' purpose in enacting must-carry was to force programming of a "local" or "educational" content on cable subscribers. The provisions, as we have stated, benefit all full power broadcasters irrespective of the nature of their programming. In fact, if a cable system were required to bump a cable programmer to make room for a broadcast station, nothing would stop a cable operator from displacing a cable station that provides all local- or education-oriented programming with a broadcaster that provides very little. Appellants do not even contend, moreover, that broadcast programming is any more "local" or "educational" than cable programming. Cf. Leathers v. Medlock, 499 U.S., at 449 (state law imposing tax upon cable television, but exempting other media, is not content based, in part due to lack of evidence that cable programming "differs systematically in its message from that communicated by satellite broadcast programming, newspapers, or magazines"). In short, Congress' acknowledgment that broadcast television stations make a valuable contribution to the Nation's communications system does not render the must-carry scheme content-based. The scope and operation of the

challenged provisions make clear, in our [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 25] view, that Congress designed the must-carry provisions not to promote speech of a particular content, but to prevent cable operators from exploiting their economic power to the detriment of broadcasters, and thereby to ensure that all Americans, especially those unable to subscribe to cable, have access to free television programming - whatever its content. We likewise reject the suggestion, advanced by appellants and by Judge Williams in dissent, that the must-carry rules are content-based because the preference for broadcast stations "automatically entails content requirements." 819 F.Supp., at 58. It is true that broadcast programming, unlike cable programming, is subject to certain limited content restraints imposed by statute and FCC regulation. 7 But it does not follow that Congress mandated cable carriage of broadcast television stations as a means of ensuring that particular programs will be shown, or not shown, on cable systems. As an initial matter, the argument exaggerates the extent to which the FCC is permitted to intrude into matters affecting the content of broadcast programming. The FCC is forbidden by statute from engaging in "censorship" or from promulgating any regulation "which shall interfere with the [broadcasters'] right of free speech." 47 U.S.C. 326. The FCC is well aware of [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 26] the limited nature of its jurisdiction, having acknowledged that it "has no authority and, in fact, is barred by the First Amendment and [ 326] from interfering with the free exercise of journalistic judgment." Hubbard Broadcasting, Inc., 48 F.C.C.2d 517, 520 (1974). In particular, the FCC's oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations; for although "the Commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear. Network Programming Inquiry, Report and Statement of Policy, 25 Fed.Reg. 7293 (1960); see also Commercial TV Stations, 98 F.C.C.2d 1076, 1091-1092 (1984), modified, 104 F.C.C.2d 358 (1986), remanded in part on other grounds sub nom. Action for Children's Television v. FCC, 821 F.2d 741 (CADC 1987). Stations licensed to broadcast over the special frequencies reserved for "noncommercial educational" stations are subject to no more intrusive content regulation than their commercial counterparts. Noncommercial licensees must operate on a nonprofit basis, may not accept financial consideration in exchange for particular programming, and may not broadcast promotional announcements or advertisements on behalf of for-profit entities. 47 CFR 73.621(d)-(e) (1993); see generally Public Broadcasting, 98 F.C.C.2d 746, 751 (1984); Educational Broadcast Stations, 90 F.C.C.2d 895 (1982), modified, 97 F.C.C.2d 255 (1984). What is important for present purposes, however, is that noncommercial licensees are not required by statute or regulation to carry any specific quantity of "educational" programming or any particular "educational" programs. Noncommercial licensees, like their commercial counterparts, need only adhere to the general requirement that [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 27] their programming serve "the public interest, convenience or necessity." En Banc Programming Inquiry, 44 F.C.C.2d 2303, 2312 (1960). The FCC itself has recognized that "a more rigorous standard for public stations would come unnecessarily close to impinging on First Amendment rights, and would run the collateral risk of stifling the creativity and innovative potential of these stations." Public Broadcasting, supra, at 751; see also Public Radio and TV Programming, 87 F.C.C.2d 716, 728-729, 732, 29-30, 37 (1981); Georgia State Bd. of Ed., 70 F.C.C.2d 948 (1979). In addition, although federal funding provided through the Corporation for Public Broadcasting (CPB) supports programming on noncommercial stations, the Government is foreclosed from using its financial support to gain leverage over any programming decisions. See 47 U.S.C. 396(g)(1)(D) (directing CPB to "carry out its purposes and functions and engage in its activities in ways that will most effectively assure the maximum freedom of the public telecommunications entities and systems from interference with, or control of, program content or other activities"), 398(a) (CPB operates without interference from any department, agency, or officer of the Federal Government, including the FCC). Indeed, our cases have recognized that Government regulation over the content of broadcast programming must be narrow, and that broadcast licensees must retain abundant discretion over programming choices. See FCC v. League of Women Voters of Cal., 468 U.S., at 378 -380, 386-392 (invalidating under the First Amendment statute forbidding any noncommercial educational station that receives a grant from the CPB to "engage in editorializing"); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S., at 126 (describing "the risk of an enlargement of Government control over the content of broadcast discussion of public issues" as being of "critical importance" to the [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 28] First Amendment). Thus, given the minimal extent to which the FCC and Congress actually influence the programming offered by broadcast stations, it

would be difficult to conclude that Congress enacted must-carry in an effort to exercise content control over what subscribers view on cable television. In a regime where Congress or the FCC exercised more intrusive control over the content of broadcast programming, an argument similar to appellants' might carry greater weight. But in the present regulatory system, those concerns are without foundation. In short, the must-carry provisions are not designed to favor or disadvantage speech of any particular content. Rather, they are meant to protect broadcast television from what Congress determined to be unfair competition by cable systems. In enacting the provisions, Congress sought to preserve the existing structure of the Nation's broadcast television medium while permitting the concomitant expansion and development of cable television, and, in particular, to ensure that broadcast television remains available as a source of video programming for those without cable. Appellants' ability to hypothesize a content-based purpose for these provisions rests on little more than speculation, and does not cast doubt upon the content-neutral character of must-carry. Cf. Arizona v. California, 283 U.S. 423, 455-457 (1931). Indeed, "[i]t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383 (1968) (citing McCray v. United States, 195 U.S. 27, 56 (1904)). D Appellants advance three additional arguments to support their view that the must-carry provisions warrant strict scrutiny. In brief, appellants contend that [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 29] the provisions (1) compel speech by cable operators, (2) favor broadcast programmers over cable programmers, and (3) single out certain members of the press for disfavored treatment. None of these arguments suffices to require strict scrutiny in the present case. 1 Appellants maintain that the must-carry provisions trigger strict scrutiny because they compel cable operators to transmit speech not of their choosing. Relying principally on Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), appellants say this intrusion on the editorial control of cable operators amounts to forced speech which, if not per se invalid, can be justified only if narrowly tailored to a compelling government interest. Tornillo affirmed an essential proposition: the First Amendment protects the editorial independence of the press. The right-of-reply statute at issue in Tornillo required any newspaper that assailed a political candidate's character to print, upon request by the candidate and without cost, the candidate's reply in equal space and prominence. Although the statute did not censor speech in the traditional sense - it only required newspapers to grant access to the messages of others - we found that it imposed an impermissible content-based burden on newspaper speech. Because the right of access at issue in Tornillo was triggered only when a newspaper elected to print matter critical of political candidates, it "exact[ed] a penalty on the basis of . . . content." 418 U.S., at 256 . We found, and continue to recognize, that right-ofreply statutes of this sort are an impermissible intrusion on newspapers' "editorial control and judgment." Id., at 258. We explained that, in practical effect, Florida's right-of-reply statute would deter newspapers from speaking in unfavorable terms about political candidates: [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 30] "Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced." Id., at 257. Moreover, by affording mandatory access to speakers with which the newspaper disagreed, the law induced the newspaper to respond to the candidates' replies when it might have preferred to remain silent. See Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion). The same principles led us to invalidate a similar content-based access regulation in Pacific Gas & Electric. At issue was a rule requiring a privately-owned utility, on a quarterly basis, to include with its monthly bills an editorial newsletter published by a consumer group critical of the utility's ratemaking practices. Although the access requirement applicable to the utility, unlike the statutory mechanism in Tornillo, was not triggered by speech of any particular content, the

plurality held that the same strict First Amendment scrutiny applied. Like the statute in Tornillo, the regulation conferred benefits to speakers based on viewpoint, giving access only to a consumer group opposing the utility's practices. 475 U.S., at 13 , 15. The plurality observed that, in order to avoid the appearance that it agreed with the group's views, the utility would "feel compelled to respond to arguments and allegations made by the [the group] in its messages to [the utility's] customers." Id., at 16. This "kind of forced response," the plurality explained, "is antithetical to the free discussion the First Amendment seeks to foster." Ibid. Tornillo and Pacific Gas & Electric do not control this case, for the following reasons. First, unlike the access [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 31] rules struck down in those cases, the must-carry rules are content-neutral in application. They are not activated by any particular message spoken by cable operators and thus exact no content-based penalty. Cf. Riley v. National Federation of Blind of N.C., Inc., 487 U.S., at 795 (solicitation of funds triggers requirement to express government-favored message). Likewise, they do not grant access to broadcasters on the ground that the content of broadcast programming will counterbalance the messages of cable operators. Instead, they confer benefits upon all full power, local broadcasters, whatever the content of their programming. Cf. Pacific Gas & Electric, supra, at 14 (access "awarded only to those who disagree with appellant's views and who are hostile to appellant's interests"). Second, appellants do not suggest, nor do we think it the case, that must-carry will force cable operators to alter their own messages to respond to the broadcast programming they are required to carry. See Brenner, Cable Television and the Freedom of Expression, 1988 Duke L.J. at 379 ("Other than adding new ideas - offensive, insightful or tedious - the [speaker granted access to cable] does not influence an operator's agenda"). Given cable's long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator. Indeed, broadcasters are required by federal regulation to identify themselves at least once every hour, 47 CFR 73.1201 (1993), and it is a common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 87 (1980) (noting that the views expressed by speakers who are granted a right of access to a shopping center would "not likely be identified with [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 32] those of the owner"). Moreover, in contrast to the statute at issue in Tornillo, no aspect of the must-carry provisions would cause a cable operator or cable programmer to conclude that "the safe course is to avoid controversy," Tornillo, supra, at 257, and by so doing diminish the free flow of information and ideas. Finally, the asserted analogy to Tornillo ignores an important technological difference between newspapers and cable television. Although a daily newspaper and a cable operator both may enjoy monopoly status in a given locale, the cable operator exercises far greater control over access to the relevant medium. A daily newspaper, no matter how secure its local monopoly, does not possess the power to obstruct readers' access to other competing publications - whether they be weekly local newspapers, or daily newspapers published in other cities. Thus, when a newspaper asserts exclusive control over its own news copy, it does not thereby prevent other newspapers from being distributed to willing recipients in the same locale. The same is not true of cable. When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch. 8 [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 33] The potential for abuse of this private power over a central avenue of communication cannot be overlooked. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) ("Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems"). The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas. See Associated Press v. United States, 326 U.S., at 20 . We thus reject appellants' contention that Tornillo and Pacific Gas & Electric require strict scrutiny of the access rules in question here. 2

Second, appellants urge us to apply strict scrutiny because the must-carry provisions favor one set of speakers (broadcast programmers) over another (cable programmers). Appellants maintain that, as a consequence of this speaker preference, some cable programmers who would have secured carriage in the absence of must-carry may now be dropped. Relying on language in Buckley v. Valeo, 424 U.S. 1 (1976), appellants contend that such a regulation is presumed invalid under the First Amendment because the government may not "restrict the speech of some elements of our society in order to enhance the relative voice of others." Id., at 48-49. To the extent appellants' argument rests on the view that all regulations distinguishing between speakers warrant strict scrutiny, see Brief for Appellants Turner [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 34] Broadcasting System, Inc., et al. 29, it is mistaken. At issue in Buckley was a federal law prohibiting individuals from spending more than $1,000 per year to support or oppose a particular political candidate. The Government justified the law as a means of "equalizing the relative ability of individuals and groups to influence the outcome of elections." Buckley, 424 U.S., at 48 . We rejected that argument with the observation that Congress may not "abridge the rights of some persons to engage in political expression in order to enhance the relative voice of other segments of our society." Id., at 49, n. 55. Our holding in Buckley does not support appellants' broad assertion that all speaker-partial laws are presumed invalid. Rather, it stands for the proposition that speaker-based laws demand strict scrutiny when they reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say). See Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548 (1983) (rejecting First Amendment challenge to differential tax treatment of veterans groups and other charitable organizations, but noting that the case would be different were there any "indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect"). Because the expenditure limit in Buckley was designed to ensure that the political speech of the wealthy not drown out the speech of others, we found that it was concerned with the communicative impact of the regulated speech. See Buckley, supra, at 17 ("it is beyond dispute that the interest in regulating the . . . giving or spending [of] money `arises in some measure because the communication . . . is itself thought to be harmful'") (quoting United States v. O'Brien, 391 U.S., at 382 ). Indeed, were the expenditure limitation unrelated to the content of expression, there would have been no perceived [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 35] need for Congress to "equaliz[e] the relative ability" of interested individuals to influence elections. 424 U.S., at 48 . Buckley thus stands for the proposition that laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference. The question here is whether Congress preferred broadcasters over cable programmers based on the content of programming each group offers. The answer, as we explained above, supra, at 19-28, is no. Congress granted must-carry privileges to broadcast stations on the belief that the broadcast television industry is in economic peril due to the physical characteristics of cable transmission and the economic incentives facing the cable industry. Thus, the fact that the provisions benefit broadcasters and not cable programmers does not call for strict scrutiny under our precedents. 3 Finally, appellants maintain that strict scrutiny applies because the must-carry provisions single out certain members of the press - here, cable operators - for disfavored treatment. See, e.g., Brief for Appellant Time Warner Entertainment Co. 28-30. In support, appellants point out that Congress has required cable operators to provide carriage to broadcast stations, but has not imposed like burdens on analogous video delivery systems, such as multichannel multipoint distribution (MMDS) systems and satellite master antenna television (SMATV) systems. Relying upon our precedents invalidating discriminatory taxation of the press, see, e.g., Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); Grosjean v. American Press Co., 297 U.S. 233 (1936), appellants contend that this sort of differential treatment [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 36] poses a particular danger of abuse by the government and should be presumed invalid. Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns. Minneapolis Star, for example, considered a use tax imposed on the paper and ink used in the production of newspapers. We subjected the tax to strict scrutiny for two reasons: first, because it applied only to the press, and, second, because, in practical application, it fell upon only a small number of newspapers. Minneapolis Star, supra, at 585, 591-592; see also Grosjean, supra (invalidating Louisiana tax on publications with weekly circulations

above 20,000, which fell on 13 of the approximately 135 newspapers distributed in the State). The sales tax at issue in Arkansas Writers' Project, which applied to general interest magazines but exempted religious, professional, trade, and sports magazines, along with all newspapers, suffered the second of these infirmities. In operation, the tax was levied upon a limited number of publishers and also discriminated on the basis of subject matter. Arkansas Writers' Project, supra, at 229-230. Relying in part on Minneapolis Star, we held that this selective taxation of the press warranted strict scrutiny. 481 U.S., at 231 . It would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others. In Leathers v. Medlock, 499 U.S. 439 (1991), for example, we upheld against First Amendment challenge the application of a general state tax to cable television services, even though the print media and scrambled satellite broadcast television services were exempted from taxation. As Leathers illustrates, the fact that a law singles out a certain medium, or even the press as a whole, "is insufficient by itself to raise First Amendment concerns." Id., at 452. Rather, [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 37] laws of this nature are "constitutionally suspect only in certain circumstances." Id., at 444. The taxes invalidated in Minneapolis Star and Arkansas Writers' Project, for example, targeted a small number of speakers, and thus threatened to "distort the market for ideas." 499 U.S., at 448 . Although there was no evidence that an illicit governmental motive was behind either of the taxes, both were structured in a manner that raised suspicions that their objective was, in fact, the suppression of certain ideas. See Arkansas Writers' Project, supra, at 228-229; Minneapolis Star, 460 U.S., at 585 . But such heightened scrutiny is unwarranted when the differential treatment is "justified by some special characteristic of" the particular medium being regulated. Ibid. The must-carry provisions, as we have explained above, are justified by special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television. Appellants do not argue, nor does it appear, that other media - in particular, media that transmit video programming such as MMDS and SMATV - are subject to bottleneck monopoly control, or pose a demonstrable threat to the survival of broadcast television. It should come as no surprise, then, that Congress decided to impose the mustcarry obligations upon cable operators only. In addition, the must-carry provisions are not structured in a manner that carries the inherent risk of undermining First Amendment interests. The regulations are broad-based, applying to almost all cable systems in the country, rather than just a select few. See 47 U.S.C. 534(b)(1) (1988 ed., Supp. IV) (only cable systems with fewer than 300 subscribers exempted from must-carry). As a result, the provisions do not pose the same dangers of suppression and manipulation that were posed by the more narrowly targeted regulations [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 38] in Minneapolis Star and Arkansas Writers' Project. For these reasons, the must-carry rules do not call for strict scrutiny. See Leathers, supra, at 449, 453 (upholding state sales tax which applied to about 100 cable systems "offering a wide variety of programming" because the tax was not "likely to stifle the free exchange of ideas" and posed no "danger of suppress[ion]"). III A In sum, the must-carry provisions do not pose such inherent dangers to free expression, or present such potential for censorship or manipulation, as to justify application of the most exacting level of First Amendment scrutiny. We agree with the District Court that the appropriate standard by which to evaluate the constitutionality of must-carry is the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. See Ward v. Rock Against Racism, 491 U.S. 781 (1989); United States v. O'Brien, 391 U.S. 367 (1968). Under O'Brien, a content-neutral regulation will be sustained if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 377. To satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government's interests. "Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Ward, supra, at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). Narrow tailoring in this [ TURNER BROADCASTING SYSTEM, INC.

v. FCC, ___ U.S. ___ (1994) , 39] context requires, in other words, that the means chosen do not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, supra, at 799. Congress declared that the must-carry provisions serve three interrelated interests: (1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming. S.Rep. No. 102-92, p. 58, (1991); H.R.Rep. No. 102-6 28, 63 (1992); 1992 Cable Act, 2(a)(8), (9), and (10). None of these interests is related to the "suppression of free expression," O'Brien, 391 U.S., at 377 , or to the content of any speakers' messages. And viewed in the abstract, we have no difficulty concluding that each of them is an important governmental interest. Ibid. In the Communications Act of 1934, Congress created a system of free broadcast service and directed that communications facilities be licensed across the country in a "fair, efficient, and equitable" manner. Communications Act of 1934, 307(b), 48 Stat. 1083, 47 U.S.C. 307(b). Congress designed this system of allocation to afford each community of appreciable size an over-the-air source of information and an outlet for exchange on matters of local concern. United States v. Southwestern Cable Co., 392 U.S. 157, 173 -174 (1968); Wollenberg, The FCC as Arbiter of "The Public Interest, Convenience, and Necessity," in A Legislative History of the Communications Act of 1934 pp. 61, 62-70 (M. Paglin ed. 1989). As we recognized in Southwestern Cable, supra, the importance of local broadcasting outlets "can scarcely be exaggerated, for broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's population." Id., at 177. The interest in maintaining the local broadcasting structure does not evaporate simply because [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 40] cable has come upon the scene. Although cable and other technologies have ushered in alternatives to broadcast television, nearly 40 percent of American households still rely on broadcast stations as their exclusive source of television programming. And as we said in Capital Cities Cable, Inc. v. Crisp, "protecting noncable households from loss of regular television broadcasting service due to competition from cable systems" is an important federal interest. 467 U.S., at 714 . Likewise, 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. Indeed, "it has long been a basic tenet of national communications policy that `the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.'" United States v. Midwest Video Corp., 406 U.S., at 668 , n. 27 (plurality opinion) (quoting Associated Press v. United States, 326 U.S., at 20 ); see also FCC v. WNCN Listeners Guild, 450 U.S. 582, 594 (1981); FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 795 (1978). Finally, the Government's interest in eliminating restraints on fair competition is always substantial, even when the individuals or entities subject to particular regulations are engaged in expressive activity protected by the First Amendment. See Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Associated Press v. United States, supra; cf. FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 431 -432 (1990). B That the Government's asserted interests are important in the abstract does not mean, however, that the must-carry rules will in fact advance those interests. When the Government defends a regulation on speech [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 41] as a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (CADC 1985). It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will, in fact, alleviate these harms in a direct and material way. See Edenfield v. Fane, 507 U.S. ___, ___ (1993) (slip op., at 8-9); Los Angeles v. Preferred Communications, Inc., 476 U.S., at 496 ("This Court may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity") (internal quotation marks omitted); Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (CADC 1977) ("[A] `regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist'") (citation omitted). Thus, in applying O'Brien scrutiny, we must ask first whether the Government has adequately shown that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry. Assuming an affirmative answer to the foregoing question, the Government still bears the burden of showing that the remedy it has adopted does not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, 491 U.S., at 799 . On the state of the record developed thus far, and in the absence of findings of fact from the District Court, we are unable to conclude that the Government has satisfied either inquiry.

In defending the factual necessity for must-carry, the Government relies in principal part on Congress' legislative finding that, absent mandatory carriage rules, the continued viability of local broadcast television would be "seriously jeopardized." 2(a)(16). See Brief for Federal Appellees 31-32. The Government contends that this finding, though predictive in nature, must be accorded [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 42] great weight in the First Amendment inquiry, especially when, as here, Congress has sought to "address the relationship between two technical, rapidly changing, and closely interdependent industries - broadcasting and cable." Id., at 30. We agree that courts must accord substantial deference to the predictive judgments of Congress. See, e.g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103 (1973) (The "judgment of the Legislative Branch" should not be ignored "simply because [appellants] cas[t] [their] claims under the umbrella of the First Amendment"). Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable. See FCC v. National Citizens Comm. for Broadcasting, supra, at 814; FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29 (1961). As an institution, moreover, Congress is far better equipped than the judiciary to "amass and evaluate the vast amounts of data" bearing upon an issue as complex and dynamic as that presented here. Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 331 n. 12 (1985). And Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review. That Congress' predictive judgments are entitled to substantial deference does not mean, however, that they are insulated from meaningful judicial review altogether. On the contrary, we have stressed in First Amendment cases that the deference afforded to legislative findings does "not foreclose our independent judgment of the facts bearing on an issue of constitutional law." Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989); see also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978). This obligation to [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 43] exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence. See Century Communications Corp. v. FCC, 835 F.2d 292, 304 (CADC 1987) ("[W]hen trenching on first amendment interests, even incidentally, the government must be able to adduce either empirical support or at least sound reasoning on behalf of its measures"). The Government's assertion that the must-carry rules are necessary to protect the viability of broadcast television rests on two essential propositions: (1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and (2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether. As support for the first proposition, the Government relies upon a 1988 FCC study showing at a time when no mustcarry rules were in effect, that approximately 20 percent of cable systems reported dropping or refusing carriage to one or more local broadcast stations on at least one occasion. See Cable System Broadcast Signal Carriage Survey, Staff Report by the Policy and Rules Division, Mass Media Bureau, p. 10, Table 2 (Sept. 1, 1988), cited in S.Rep. No. 102-92, at 42-43. The record does not indicate, however, the time frame within which these drops occurred, or how many of these stations were dropped for only a temporary period and then restored to carriage. The same FCC study indicates that about 23 percent of the cable operators reported shifting the channel positions of one or more local broadcast stations, and that, in most cases, the repositioning was done for "marketing" rather than [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 44] "technical" reasons. Id., at 44 (citing Signal Carriage Survey, supra, at 19, 22, Tables 10 and 13). The parties disagree about the significance of these statistics. But even if one accepts them as evidence that a large number of broadcast stations would be dropped or repositioned in the absence of must-carry, the Government must further demonstrate that broadcasters so affected would suffer financial difficulties as a result. Without a more substantial elaboration in the District Court of the predictive or historical evidence upon which Congress relied, or the introduction of some additional evidence to establish that the dropped or repositioned broadcasters would be at serious risk of financial difficulty, we cannot determine whether the threat to broadcast television is real enough to overcome the challenge to the provisions made by these appellants. We think it significant, for instance, that the parties have not presented any evidence that local broadcast stations have fallen into bankruptcy, turned in their broadcast licenses,

curtailed their broadcast operations, or suffered a serious reduction in operating revenues as a result of their being dropped from, or otherwise disadvantaged by, cable systems. The paucity of evidence indicating that broadcast television is in jeopardy is not the only deficiency in this record. Also lacking are any findings concerning the actual effects of must-carry on the speech of cable operators and cable programmers - i.e., the extent to which cable operators will, in fact, be forced to make changes in their current or anticipated programming selections; the degree to which cable programmers will be dropped from cable systems to make room for local broadcasters; and the extent to which cable operators can satisfy their must-carry obligations by devoting previously unused channel capacity to the carriage of local broadcasters. The answers to these and perhaps other questions are critical to the narrow tailoring step [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 45] of the O'Brien analysis, for unless we know the extent to which the must-carry provisions in fact interfere with protected speech, we cannot say whether they suppress "substantially more speech than . . . necessary" to ensure the viability of broadcast television. Ward, 491 U.S., at 799 . Finally, the record fails to provide any judicial findings concerning the availability and efficacy of "constitutionally acceptable less restrictive means" of achieving the Government's asserted interests. See Sable Communications, 492 U.S., at 129 . In sum, because there are genuine issues of material fact still to be resolved on this record, we hold that the District Court erred in granting summary judgment in favor of the Government. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Because of the unresolved factual questions, the importance of the issues to the broadcast and cable industries, and the conflicting conclusions that the parties contend are to be drawn from the statistics and other evidence presented, we think it necessary to permit the parties to develop a more thorough factual record, and to allow the District Court to resolve any factual disputes remaining, before passing upon the constitutional validity of the challenged provisions. The judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnotes [ Footnote 1 ] Although a cable system's local television market is defined by regulation, see 47 CFR 73.3555(d)(3)(i) (1993), the FCC is authorized to make special market determinations upon request to better effectuate the purposes of the Act. See 1992 Cable Act 4, 47 U.S.C. 534(h)(1)(C) (1988 ed., Supp. IV). [ Footnote 2 ] If there are not enough local full power commercial broadcast stations to fill the one-third allotment, a cable system with up to 35 active channels must carry one qualified low power station and an operator with more than 35 channels must carry two of them. See 534(c)(1); see also 534(h)(2) (defining "qualified low power station"). Low power television stations are small broadcast entities that transmit over a [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 6] limited geographic range. They are licensed on a secondary basis, and are permitted to operate only if they do not interfere with the signals of full power broadcast stations. [ Footnote 3 ] Cable systems are not required to carry the signal of any local commercial television station that "substantially duplicates" the signal of any other broadcast station carried on the system. 534(b)(5); see also In re Implementation of the Cable Television Consumer Protection and Competition Act of 1992 (Broadcast Signal Carriage Issues), No. 92-259, March 29, 1993, 19 (defining "substantial duplication" as a 50% overlap in programming). Nor are they required to carry the signals of more than one station affiliated with each national broadcast network. If the cable operator does choose to carry broadcast stations with duplicative programming, however, the system is credited with those stations for purposes of its must-carry obligations. 534(b)(5). [ Footnote 4 ] "Noncommercial educational television station[s]" are defined to include broadcast stations that are either (1) licensed by the FCC as a "noncommercial educational television broadcast station" and have, as licensees, entities which are eligible to receive grants from the [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 7] Corporation for Public Broadcasting; or (2) owned and operated by a municipality and transmit "predominantly noncommercial programs for educational purposes." 535(l)(1)(A)-(B).

[ Footnote 5 ] See, e.g., Telecommunications Research and Action Center v. FCC, 801 F.2d 501, 508-509 (CADC 1986), cert. denied, 482 U.S. 919 (1987); L. Bollinger, Images of a Free Press 87-90 (1991); L. Powe, American Broadcasting and the First Amendment 197-209 (1987); M. Spitzer, Seven Dirty Words and Six Other Stories 7-18 (1986); Note, The Message [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 14] in the Medium: The First Amendment on the Information Super-highway, 107 Harv.L.Rev. 1062, 1072-1074 (1994); Winer, The Signal Cable Sends - Part I: Why Can't Cable Be More Like Broadcasting?, 46 Md.L.Rev. 212, 218-240 (1987); Coase, The Federal Communications Commission, 2 J.Law & Econ. 1, 12-27 (1959). [ Footnote 6 ] The must-carry rules also require carriage, under certain limited circumstances, of low power broadcast stations. 47 U.S.C. 534(c); see n. 2, supra. Under the Act, a low power station may become eligible for carriage only if, among other things, the FCC determines that the station's programming "would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." 534(h)(2)(B). We recognize that this aspect of 4 appears to single out certain low-power broadcasters for special benefits on the basis of content. Because the District Court did not address whether these particular provisions are content-based, and because the parties make only the most glancing reference to the operation of, and justifications for, the low-power broadcast provisions, we think it prudent to allow the District Court to consider the content-neutral or content-based character of this provision in the first instance on remand. In a similar vein, although a broadcast station's eligibility for must-carry is based upon its geographic proximity to a qualifying cable system, 534(h)(1)(C)(i), the Act permits the FCC to grant must-carry privileges upon request to otherwise ineligible broadcast stations. In acting upon these requests, the FCC is directed to give "attention to the value of localism," and, in particular, to whether the requesting station "provides news coverage of issues of concern to such community . . . or coverage of sporting and other events of interest to the community." 534(h)(1)(C)(ii). Again, the District Court did not address this provision, but may do so on remand. [ Footnote 7 ] See, e.g., 47 U.S.C. 303b (1988 ed., Supp. IV) (directing FCC to consider extent to which license renewal applicant has "served the educational and informational needs of children"); Pub.L. 102-356, 16(a), 106 Stat. 954, note following 47 U.S.C. 303 (1988 ed., Supp. IV) (restrictions on indecent programming); 47 U.S.C. 312(a)(7) (allowing FCC to revoke broadcast license for willful or repeated failure to allow reasonable access to broadcast airtime for candidates seeking federal elective office); 47 CFR 73.1920 (1993) (requiring broadcaster to notify victims of on-air personal attacks and to provide victims with opportunity to respond over the air); En Banc Programming Inquiry, 44 F.C.C.2d 2303, 2312 (1960) (requiring broadcasters to air programming that serves "the public interest, convenience or necessity"). [ Footnote 8 ] As one commentator has observed: "The central dilemma of cable is that it has unlimited capacity to accommodate as much diversity and as many publishers as print, yet all of the producers and publishers use the same physical plant. . . . If the cable system is [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 33] itself a publisher, it may restrict the circumstances under which it allows others also to use its system." I. de Sola Pool, Technologies of Freedom 168 (1983). [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 1] JUSTICE BLACKMUN, concurring. I join JUSTICE KENNEDY's opinion, which aptly identifies and analyzes the First Amendment concerns and principles that should guide consideration of free speech issues in the expanding cable industry. I write to emphasize the paramount importance of according substantial deference to the predictive judgments of Congress, see, e.g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103 (1973), particularly where, as here, that legislative body has compiled an extensive record in the course of reaching its judgment. Nonetheless, the standard for summary judgment is high, and no less so when First Amendment values are at stake and the issue is of far-reaching importance. Because in this case there remain a few unresolved issues of material fact, a remand is appropriate. The Government had occasion to submit to the District Court only portions of the record developed by Congress. In light of the Court's opinion today, those portions, which were submitted to defeat a motion for summary judgment, are not adequate to support one. The record before the District Court no doubt will benefit from any additional evidence the Government and the other parties now see fit to present. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 1] JUSTICE STEVENS, concurring in part and concurring in the judgment.

As JUSTICE KENNEDY has ably explained, the "overriding congressional purpose" of the challenged must-carry provisions of the 1992 Cable Act is to "guarantee the survival of a medium that has become a vital part of the Nation's communication system," a purpose that is "unrelated to the content of expression." Ante, at 22. The public interests in protecting access to television for the millions of homes without cable and in assuring the availability of "a multiplicity of information sources" are unquestionably substantial. Ante, at 39-40. The must-carry provisions are amply "justified by special characteristics of the cable medium," namely, "the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television." Ante, at 37. Cable operators' control of essential facilities provides a basis for intrusive regulation that would be inappropriate and perhaps impermissible for other communicative media. While I agree with most of JUSTICE KENNEDY's reasoning, and join Parts I, II(C), II(D), and III(A) of his opinion, I part ways with him on the appropriate disposition of this case. In my view, the District Court's [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 2] judgment sustaining the must-carry provisions should be affirmed. The District Court majority evaluated 4 and 5 as content-neutral regulations of protected speech according to the same standard that JUSTICE KENNEDY's opinion instructs it to apply on remand. In my view, the District Court reached the correct result the first time around. Economic measures are always subject to secondguessing; they rest on inevitably provisional and uncertain forecasts about the future effect of legal rules in complex conditions. Whether Congress might have accomplished its goals more efficiently through other means; whether it correctly interpreted emerging trends in the protean communications industry; and indeed whether must-carry is actually imprudent as a matter of policy will remain matters of debate long after the 1992 Act has been repealed or replaced by successor legislation. But the question for us is merely whether Congress could fairly conclude that cable operators' monopoly position threatens the continued viability of broadcast television and that must-carry is an appropriate means of minimizing that risk. 1 As JUSTICE KENNEDY recognizes, ante, at 41-42, findings by the Congress, particularly those emerging from such sustained deliberations, merit special respect from this Court. 2 Accorded proper deference, the [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 3] findings in 2 are sufficient to sustain the mustcarry provisions against facial attack. Congress's conclusion, for example, that broadcasters who are denied carriage on cable systems will suffer serious and potentially terminal economic harm, see 2(a)(16), requires no "further demonstration." See id., at 44. Because 60% of American households have cable, and because most cable subscribers rely solely on that medium to receive video signals, it is a practical certainty that a broadcaster dropped from the local cable system would suffer substantial economic harm. It is also clear that cable operators - particularly (but not exclusively) those affiliated with cable programmers - have both the ability and the economic incentive to exploit their gatekeeper status to the detriment of broadcasters. Thus, even if Congress had had before it no historical evidence that terminations or refusals of carriage had already occurred, 3 it could reasonably infer that cable operators' bottleneck control, together with the already high degree of vertical integration in the industry, would motivate such conduct in the near future. 4 Indeed, the [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 4] main thrust of the most pertinent congressional findings is not that cable carriers have already eliminated broadcast competition on a grand scale, but that, given their market power, they may soon do so. 5 An industry need not be in its death throes before Congress may act to protect it from economic harm threatened by a monopoly. The mandatory access mechanism that Congress fashioned in 4 and 5 of the 1992 Act is a simple and direct means of dealing with the dangers posed by cable operators' exclusive control of what is fast becoming the preeminent means of transferring video signals to homes. The must-carry mechanism is analogous to the relief that might be appropriate for a threatened violation of the antitrust laws; one need only refer to undisputed facts concerning the structure of the cable and broadcast industries to agree that that threat is at least plausible. Moreover, Congress did not have to find that all broadcasters were at risk before acting to protect vulnerable ones, for the interest in preserving access to free television is valid throughout the Nation. Indeed, the Act is well tailored to assist those broadcasters who are most in jeopardy. Because thriving commercial broadcasters will likely avail themselves of the remunerative "retransmission [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 5] consent" procedure of 6, those broadcasters who gain access via the 4 must-carry route are apt to be the most economically vulnerable ones. Precisely how often broadcasters will secure carriage through 6, rather than 4, will depend upon future developments; the very unpredictability of this and other effects of the new regulatory scheme militates in favor of allowing the scheme to proceed, rather than requiring a perfectly documented or entirely complete ex ante justification.

JUSTICE KENNEDY asks the three-judge panel to take additional evidence on such matters as whether the must-carry provisions really respond to threatened harms to broadcasters, whether 4-5 "will in fact alleviate these harms in a direct and material way," ante, at 41, and "the extent to which cable operators will, in fact, be forced to make changes in their current or anticipated programming selections," id, at 44. While additional evidence might cast further light on the efficacy and wisdom of the must-carry provisions, additional evidence is not necessary to resolve the question of their facial constitutionality. 6 To predicate the facial validity of the must-carry provisions upon forecasts of the ultimate consequences of their implementation is to ask the District Court to address questions that are not at present susceptible of reliable answers. Some of the matters the lead opinion singles out for further review - for example, "the degree to which cable programmers will be dropped from [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 6] cable systems to make room for local broadcasters," ante, at 44 - depend upon predictions about the future voluntary actions of entities who are parties to this case. At best, a remand for consideration of such factors will require the District Court to engage in speculation; it may actually invite the parties to adjust their conduct in an effort to affect the result of this litigation (perhaps by opting to drop cable programs rather than seeking to increase total channel capacity). The must-carry provisions may ultimately prove an ineffective or needlessly meddlesome means of achieving Congress' legitimate goals. However, such a conclusion could be confidently drawn, if ever, only after the must-carry scheme has been tested by experience. On its face, that scheme is rationally calculated to redress the dangers that Congress discerned after its lengthy investigation of the relationship between the cable and broadcasting industries. It is thus my view that we should affirm the judgment of the District Court. Were I to vote to affirm, however, no disposition of this appeal would command the support of a majority of the Court. An accommodation is therefore necessary. See Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result). Accordingly, because I am in substantial agreement with JUSTICE KENNEDY's analysis of the case, I concur in the judgment vacating and remanding for further proceedings. [ Footnote 1 ] I have no quarrel with JUSTICE KENNEDY's general statement that the question for the reviewing court in a case of this kind is merely whether "Congress has drawn reasonable inferences based on substantial evidence," given his caveat that Congress need not compile or restrict itself to a formal record in the manner required of a judicial or administrative factfinder. Ante, at 42-43. In my view, however, application of that standard would require affirmance here. [ Footnote 2 ] As JUSTICE KENNEDY observes, ante, at 42-43, we cannot abdicate our responsibility to decide whether a restriction on speech violates the First Amendment. But the factual findings accompanying economic measures that are enacted by Congress itself and that have only incidental effects on speech merit greater deference than [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 3] those supporting content-based restrictions on speech, see Sable Communications v. FCC, 492 U.S. 115, 129 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978) (both cited ante, at 42), or restrictions imposed by administrative agencies, see, e.g., Century Communications Corp. v. FCC, 835 F.2d 292, 304 (1987) (cited ante, at 42-43). [ Footnote 3 ] But see H.R. Rep. No. 628, 102 Cong., 2d Sess. 50-57 (1992); Sen.Rep. No. 92, 102d Cong., 1st Sess. 4344 (1991). [ Footnote 4 ] As Judge Jackson put it in his opinion for district court: "[E]ven if the state of the broadcasting industry is not now as parlous as the defendants contend, the Court finds it indisputable that cable operators have attained a position of dominance in the video signal distribution market, and can henceforth exercise the attendant market power. The Court does not find improbable Congress' conclusion that this market power provides cable operators with both incentive and present ability to block non-cable [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 4] programmers' access to the bulk of any prospective viewing audience; unconstrained, cable holds the future of local broadcasting at its mercy. In light of the considerable body of evidence amassed by Congress, and the deference this Court should accord to the factfinding abilities of the nation's legislature, . . . the Court must conclude that the danger perceived by Congress is real and substantial." Turner Broadcasting System, Inc. v. F.C.C., 819 F.Supp. 32, 46 (D.C. 1993) (citations omitted).

[ Footnote 5 ] See 2(a)(16) ("As a result of the economic incentive that cable systems have to delete, reposition, or not carry local broadcast signals, the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized."); see also 2(a)(15), 2(a)(17). [ Footnote 6 ] The must-carry obligations may be broader than necessary to protect vulnerable broadcasters, but that would not, alone, be enough to demonstrate that they violate the First Amendment. Thus, for instance, to the extent that 4 and 5 obligate cable operators to carry broadcasters they would have carried even in the absence of a statutory obligation, any impairment of operators' freedom of choice, or on cable programmers' ability to secure carriage, would be negligible. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 1] JUSTICE O'CONNOR, with whom JUSTICE SCALIA and JUSTICE GINSBURG join, and with whom JUSTICE THOMAS joins as to Parts I and III, concurring in part and dissenting in part. There are only so many channels that any cable system can carry. If there are fewer channels than programmers who want to use the system, some programmers will have to be dropped. In the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992, Pub.L. 102-385, 106 Stat. 1460, Congress made a choice: By reserving a little over one-third of the channels on a cable system for broadcasters, it ensured that, in most cases, it will be a cable programmer who is dropped and a broadcaster who is retained. The question presented in this case is whether this choice comports with the commands of the First Amendment. I A The 1992 Cable Act implicates the First Amendment rights of two classes of speakers. First, it tells cable operators which programmers they must carry, and [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 2] keeps cable operators from carrying others that they might prefer. Though cable operators do not actually originate most of the programming they show, the Court correctly holds that they are, for First Amendment purposes, speakers. Ante, at 11-12. Selecting which speech to retransmit is, as we know from the example of publishing houses, movie theaters, bookstores, and Reader's Digest, no less communication than is creating the speech in the first place. Second, the Act deprives a certain class of video programmers - those who operate cable channels, rather than broadcast stations - of access to over one-third of an entire medium. Cable programmers may compete only for those channels that are not set aside by the must-carry provisions. A cable programmer that might otherwise have been carried may well be denied access in favor of a broadcaster that is less appealing to the viewers but is favored by the must-carry rules. It is as if the government ordered all movie theaters to reserve at least one-third of their screening for films made by American production companies, or required all bookstores to devote one-third of their shelf space to nonprofit publishers. As the Court explains in Parts I, II-A and II-B of its opinion, which I join, cable programmers and operators stand in the same position under the First Amendment as do the more traditional media. Under the First Amendment, it is normally not within the government's power to decide who may speak and who may not, at least on private property or in traditional public fora. The government does have the power to impose contentneutral time, place, and manner restrictions, but this is, in large part, precisely because such restrictions apply to all speakers. Laws that treat all speakers equally are relatively poor tools for controlling public debate, and their very generality creates a substantial political check that prevents them from being unduly burdensome. Laws that single out particular [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 3] speakers are substantially more dangerous, even when they do not draw explicit content distinctions. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 584 , 591-592 (1983); see also Leathers v. Medlock, 499 U.S. 439, 447 (1991). I agree with the Court that some speaker-based restrictions - those genuinely justified without reference to content need not be subject to strict scrutiny. But looking at the statute at issue, I cannot avoid the conclusion that its preference for broadcasters over cable programmers is justified with reference to content. The findings, enacted by Congress as 2 of the Act, and which I must assume state the justifications for the law, make this clear. "There is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." 2(a)(6). "[P]ublic television provides educational and informational programming to the Nation's citizens,

thereby advancing the Government's compelling interest in educating its citizens." 2(a)(8)(A). "A primary objective and benefit of our Nation's system of regulation of television broadcasting is the local origination of programming. There is a substantial governmental interest in ensuring its continuation." 2(a)(10). "Broadcast television stations continue to be an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate." 2(a)(11). Similar justifications are reflected in the operative provisions of the Act. In determining whether a broadcast station should be eligible for must-carry in a particular market, the FCC must "afford particular attention to the value of localism by taking into account such factors as . . . whether any other [eligible station] provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community." 4, 47 U.S.C. 534 [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 4] (h)(1)(C)(ii) (1988 ed., Supp. IV). In determining whether a low-power station is eligible for must-carry, the FCC must ask whether the station "would address local news and informational needs which are not being adequately served by full power television broadcast stations." 4, 47 U.S.C. 534(h)(2)(B) (1988 ed., Supp. IV). Moreover, the Act distinguishes between commercial television stations and noncommercial educational television stations, giving special benefits to the latter. Compare 4 with 5. These provisions may all be technically severable from the statute, but they are still strong evidence of the statute's justifications. Preferences for diversity of viewpoints, for localism, for educational programming, and for news and public affairs all make reference to content. They may not reflect hostility to particular points of view, or a desire to suppress certain subjects because they are controversial or offensive. They may be quite benignly motivated. But benign motivation, we have consistently held, is not enough to avoid the need for strict scrutiny of content-based justifications. Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. ___, ___ (1991) (slip op., at 10-11); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987). The First Amendment does more than just bar government from intentionally suppressing speech of which it disapproves. It also generally prohibits the government from excepting certain kinds of speech from regulation because it thinks the speech is especially valuable. See, e.g., id., at 231-232; Regan v. Time, Inc., 468 U.S. 641, 648 -649 (1984); Metromedia, Inc. v. San Diego, 453 U.S. 490, 514 -515 (1981) (plurality); Carey v. Brown, 447 U.S. 455, 466 -468 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 96 (1972); Cox v. Louisiana, 379 U.S. 536, 581 (1965) (Black, J., concurring); see also R.A.V. v. St. Paul, 505 U.S. ___, ___ (1992) (slip op., at 8) ("The government may not regulate [speech] based [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 5] on hostility - or favoritism - towards the underlying message expressed"). This is why the Court is mistaken in concluding that the interest in diversity - in "access to a multiplicity" of "diverse and antagonistic sources," ante, at 40 (internal quotation marks omitted) - is content-neutral. Indeed, the interest is not "related to the suppression of free expression," ante, at 39 (emphasis added and internal quotation marks omitted), but that is not enough for content neutrality. The interest in giving a tax break to religious, sports, or professional magazines, see Arkansas Writers' Project, supra, is not related to the suppression of speech; the interest in giving labor picketers an exemption from a general picketing ban, see Carey and Mosley, supra, is not related to the suppression of speech. But they are both related to the content of speech - to its communicative impact. The interest in ensuring access to a multiplicity of diverse and antagonistic sources of information, no matter how praiseworthy, is directly tied to the content of what the speakers will likely say. B The Court dismisses the findings quoted above by speculating that they do not reveal a preference for certain kinds of content; rather, the Court suggests, the findings show "nothing more than the recognition that the services provided by broadcast television have some intrinsic value and, thus, are worth preserving against the threats posed by cable." Ante, at 24. I cannot agree. It is rare enough that Congress states, in the body of the statute itself, the findings underlying its decision. When it does, it is fair to assume that those findings reflect the basis for the legislative decision, especially when the thrust of the findings is further reflected in the rest of the statute. See Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. ___, ___ (1993) (slip op., at [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 6] 1213) (relying on recitals in a city council resolution as evidence of the justifications for an ordinance). Moreover, it does not seem likely that Congress would make extensive findings merely to show that broadcast television is valuable. The controversial judgment at the heart of the statute is not that broadcast television has some value obviously it does - but that broadcasters should be preferred over cable programmers. The best explanation for the

findings, it seems to me, is that they represent Congress' reasons for adopting this preference; and, according to the findings, these reasons rest in part on the content of broadcasters' speech. To say in the face of the findings that the must-carry rules "impose burdens and confer benefits without reference to the content of speech," ante, at 19, cannot be correct, especially in light of the care with which we must normally approach speaker-based restrictions. See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). It may well be that Congress also had other, content-neutral, purposes in mind when enacting the statute. But we have never held that the presence of a permissible justification lessens the impropriety of relying in part on an impermissible justification. In fact, we have often struck down statutes as being impermissibly content based even though their primary purpose was indubitably content neutral. See Arkansas Writers' Project, Inc., supra (striking down content-based exemptions in a general revenue measure); Regan v. Time, Inc., supra (striking down content-based exemptions in a general anti-counterfeiting statute); Metromedia, Inc. v. San Diego, supra (plurality) (striking down on content discrimination grounds a general urban beautification ordinance); Carey v. Brown, supra, at 466-468 (striking down on content discrimination grounds an ordinance aimed at preserving residential privacy). Of course, the mere possibility that a statute might be justified with [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 7] reference to content is not enough to make the statute content based, and neither is evidence that some legislators voted for the statute for content-based reasons. But when a content-based justification appears on the statute's face, we cannot ignore it because another, content-neutral justification is present. C Content-based speech restrictions are generally unconstitutional unless they are narrowly tailored to a compelling state interest. Boos v. Barry, 485 U.S. 312, 321 (1988). This is an exacting test. It is not enough that the goals of the law be legitimate, or reasonable, or even praiseworthy. There must be some pressing public necessity, some essential value that has to be preserved; and even then the law must restrict as little speech as possible to serve the goal. The interest in localism, either in the dissemination of opinions held by the listeners' neighbors or in the reporting of events that have to do with the local community, cannot be described as "compelling" for the purposes of the compelling state interest test. It is a legitimate interest, perhaps even an important one - certainly the government can foster it by, for instance, providing subsidies from the public fisc - but it does not rise to the level necessary to justify content-based speech restrictions. It is for private speakers and listeners, not for the government, to decide what fraction of their news and entertainment ought to be of a local character and what fraction ought to be of a national (or international) one. And the same is true of the interest in diversity of viewpoints: while the government may subsidize speakers that it thinks provide novel points of view, it may not restrict other speakers on the theory that what they say is more conventional. Cf. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 612 -613 (1990) (O'CONNOR, J., [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 8] dissenting); Pacific Gas & Electric Co. v. Public Utilities Comm'n, 475 U.S. 1, 20 (1986) (plurality). The interests in public affairs programming and educational programming seem somewhat weightier, though it is a difficult question whether they are compelling enough to justify restricting other sorts of speech. We have never held that the Government could impose educational content requirements on, say, newsstands, bookstores, or movie theaters; and it is not clear that such requirements would in any event appreciably further the goals of public education. But, even assuming arguendo that the Government could set some channels aside for educational or news programming, the Act is insufficiently tailored to this goal. To benefit the educational broadcasters, the Act burdens more than just the cable entertainment programmers. It equally burdens CNN, C-SPAN, the Discovery Channel, the New Inspirational Network, and other channels with as much claim as PBS to being educational or related to public affairs. Even if the Government can restrict entertainment in order to benefit supposedly more valuable speech, I do not think the restriction can extend to other speech that is as valuable as the speech being benefited. In the rare circumstances where the government may draw content-based distinctions to serve its goals, the restrictions must serve the goals a good deal more precisely than this. See Arkansas Writers' Project, Inc., 481 U.S., at 231 -232; Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 -215 (1975).

Finally, my conclusion that the must-carry rules are content based leads me to conclude that they are an impermissible restraint on the cable operators' editorial discretion as well as on the cable programmers' speech. For reasons related to the content of speech, the rules restrict the ability of cable operators to put on the programming they prefer, and require them to include programming [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 9] they would rather avoid. This, it seems to me, puts this case squarely within the rule of Pacific Gas & Electric Co., 475 U.S., at 14 -15 (plurality); id., at 23-24 (Marshall, J., concurring in judgment); see also Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257 -258 (1974). II Even if I am mistaken about the must-carry provisions being content based, however, in my view, they fail contentneutral scrutiny as well. Assuming arguendo that the provisions are justified with reference to the content-neutral interests in fair competition and preservation of free television, they nonetheless restrict too much speech that does not implicate these interests. Sometimes, a cable system's choice to carry a cable programmer rather than a broadcaster may be motivated by anticompetitive impulses, or might lead to the broadcaster going out of business. See ante, at 38-45. That some speech within a broad category causes harm, however, does not justify restricting the whole category. If Congress wants to protect those stations that are in danger of going out of business, or bar cable operators from preferring programmers in which the operators have an ownership stake, it may do that. But it may not, in the course of advancing these interests, restrict cable operators and programmers in circumstances where neither of these interests is threatened. "A regulation is not "narrowly tailored" - even under the more lenient [standard applicable to content-neutral restrictions] - where . . . a substantial portion of the burden on speech does not serve to advance [the State's content-neutral] goals." Simon & Schuster, 502 U.S., at ___-___, n.** (slip op., at 15-16, n.** (internal quotation marks omitted). If the government wants to avoid littering, it may ban littering, but it may not ban all leafleting. Schneider v. State (Town of Irvington), [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 10] 308 U.S. 147 (1939). If the government wants to avoid fraudulent political fundraising, it may bar the fraud, but it may not in the process prohibit legitimate fundraising. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980); see also Edenfield v. Fane, 507 U.S. ___, ___-___ (1993) (slip op., at 15-16). If the government wants to protect householders from unwanted solicitors, it may enforce "No Soliciting" signs that the householders put up, but it may not cut off access to homes whose residents are willing to hear what the solicitors have to say. Martin v. City of Struthers, 319 U.S. 141 (1943). "Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone. . . ." NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted). The must-carry provisions are fatally overbroad, even under a content-neutral analysis: they disadvantage cable programmers even if the operator has no anticompetitive motives, and even if the broadcaster that would have to be dropped to make room for the cable programmer would survive without cable access. None of the factfinding that the District Court is asked to do on remand will change this. The Court does not suggest that either the antitrust interest or the loss of free television interest are implicated in all, or even most, of the situations in which must-carry makes a difference. Perhaps on remand the District Court will find out just how many broadcasters will be jeopardized, but the remedy for this jeopardy will remain the same: protect those broadcasters that are put in danger of bankruptcy without unnecessarily restricting cable programmers in markets where free broadcasting will thrive in any event. III Having said all this, it is important to acknowledge one basic fact: the question is not whether there will be control over who gets to speak over cable - the question [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 11] is who will have this control. Under the FCC's view, the answer is Congress, acting within relatively broad limits. Under my view, the answer is the cable operator. Most of the time, the cable operator's decision will be largely dictated by the preferences of the viewers; but, because many cable operators are indeed monopolists, the viewers' preferences will not always prevail. Our recognition that cable operators are speakers is bottomed in large part on the very fact that the cable operator has editorial discretion. Ante, at 11-12. I have no doubt that there is danger in having a single cable operator decide what millions of subscribers can or cannot watch. And I have no doubt that Congress can act to relieve this danger. In other provisions of the Act, Congress has already taken steps to foster competition among cable systems. 3(a), 47 U.S.C. 543(a)(2) (1988 ed., Supp. IV). Congress

can encourage the creation of new media, such as inexpensive satellite broadcasting, or fiber-optic networks with virtually unlimited channels, or even simple devices that would let people easily switch from cable to over-the-air broadcasting. And, of course, Congress can subsidize broadcasters that it thinks provide especially valuable programming. Congress may also be able to act in more mandatory ways. If Congress finds that cable operators are leaving some channels empty - perhaps for ease of future expansion - it can compel the operators to make the free channels available to programmers who otherwise would not get carriage. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 88 (1980) (upholding a compelled access scheme because it did not burden others' speech). Congress might also conceivably obligate cable operators to act as common carriers for some of their channels, with those channels being open to all through some sort of lottery system or timesharing arrangement. Setting aside any possible Takings Clause issues, it stands to reason that if Congress may demand that telephone [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 12] companies operate as common carriers, it can ask the same of cable companies; such an approach would not suffer from the defect of preferring one speaker to another. But the First Amendment, as we understand it today, rests on the premise that it is government power, rather than private power, that is the main threat to free expression; and, as a consequence, the Amendment imposes substantial limitations on the Government even when it is trying to serve concededly praiseworthy goals. Perhaps Congress can to some extent restrict, even in a content-based manner, the speech of cable operators and cable programmers. But it must do so in compliance with the constitutional requirements, requirements that were not complied with here. Accordingly, I would reverse the judgment below. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 1] JUSTICE GINSBURG, concurring in part and dissenting in part. Substantially for the reasons stated by Circuit Judge Williams in his opinion dissenting from the three-judge District Court's judgment, 819 F.Supp. 32, 57 (DC 1993), I conclude that Congress' "must-carry" regime, which requires cable operators to set aside just over one-third of their channels for local broadcast stations, reflects an unwarranted contentbased preference and hypothesizes a risk to local stations that remains imaginary. I therefore concur in Parts I, II-A, and II-B of the Court's opinion, and join JUSTICE O'CONNOR's opinion concurring in part and dissenting in part. The "must-carry" rules Congress has ordered do not differentiate on the basis of "viewpoint," and therefore do not fall in the category of speech regulation that Government must avoid most assiduously. See R.A.V. v. St. Paul, 505 U.S. ___, ___ (1992) (STEVENS, J., concurring in judgment) (slip op., at 15) ("[W]e have implicitly distinguished between restrictions on expression based on subject matter and restrictions based on viewpoint, indicating that the latter are particularly pernicious."). The rules, however, do reflect a content preference, and on that account demand close scrutiny. [ TURNER BROADCASTING SYSTEM, INC. v. FCC, ___ U.S. ___ (1994) , 2] The Court has identified as Congress' "overriding objective in enacting must-carry," the preservation of over-the-air television service for those unwilling or unable to subscribe to cable, and has remanded the case for further airing centered on that allegedly overriding, content-neutral purpose. Ante, at 21-24, 43-45. But an intertwined or even discrete content-neutral justification does not render speculative, or reduce to harmless surplus, Congress' evident plan to advance local programming. See ante, at 3-4, 6-7 (O'CONNOR, J., dissenting). As Circuit Judge Williams stated: "Congress rested its decision to promote [local broadcast] stations in part, but quite explicitly, on a finding about their content - that they were "an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate." 819 F.Supp., at 58, quoting 1992 Cable Act, 2(a)(11). Moreover, as Judge Williams persuasively explained, "[the] facts do not support an inference that over-the-air TV is at risk," 819 F.Supp., at 63, see id., at 62-65; "[w]hatever risk there may be in the abstract has completely failed to materialize." Id., at 63. "The paucity of evidence indicating that broadcast television is in jeopardy," see ante, at 44, if it persists on remand, should impel an ultimate judgment for the petitioners. Page I