95-992.ZC1 Concurring
cou...@usenet.ins.cwru.edu
SUPREME COURT OF THE UNITED STATES
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No. 95-992
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TURNER BROADCASTING SYSTEM, INC., et al.,
APPELLANTS v. FEDERAL COMMUNICATIONS
COMMISSION et al.
on appeal from the united states district court
for the district of columbia
[March 31, 1997]
Justice Breyer, concurring in part.
I join the opinion of the Court except insofar as Part
II-A-1 relies on an anticompetitive rationale. I agree
with the majority that the statute must be -sustained
under the First Amendment if it advances important
governmental interests unrelated to the suppression of
free speech and does not burden substantially more
speech than necessary to further those interests.- Ante,
at 6 (citing United States v. O'Brien, 391 U. S. 367, 377
(1968)). I also agree that the statute satisfies this
standard. My conclusion rests, however, not upon the
principal opinion's analysis of the statute's efforts to
-promot[e] fair competition,- see post, at 3-4, 9-12, but
rather upon its discussion of the statute's other objec-
tives, namely -`(1) preserving the benefits of free, over-
the-air local broadcast television,'- and -`(2) promoting
the widespread dissemination of information from a
multiplicity of sources.'- Ante, at 6 (quoting Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 662
(1994) (Turner)). Whether or not the statute does or
does not sensibly compensate for some significant market
defect, it undoubtedly seeks to provide over-the-air
viewers who lack cable with a rich mix of over-the-air
programming by guaranteeing the over-the-air stations
that provide such programming with the extra dollars
that an additional cable audience will generate. I
believe that this purpose-to assure the over-the-air
public -access to a multiplicity of information sources,-
id., at 663-provides sufficient basis for rejecting
appellants' First Amendment claim.
I do not deny that the compulsory carriage that
creates the -guarantee- extracts a serious First Amend-
ment price. It interferes with the protected interests of
the cable operators to choose their own programming; it
prevents displaced cable program providers from obtain-
ing an audience; and it will sometimes prevent some
cable viewers from watching what, in its absence, would
have been their preferred set of programs. Ante, at
31-32; post, at 23. This -price- amounts to a -suppres-
sion of speech.-
But there are important First Amendment interests on
the other side as well. The statute's basic noneconomic
purpose is to prevent too precipitous a decline in the
quality and quantity of programming choice for an ever-
shrinking non-cable-subscribing segment of the public.
Ante, at 6, 8-11. This purpose reflects what -has long
been a basic tenet of national communications policy,-
namely that -the widest possible dissemination of
information from diverse and antagonistic sources is
essential to the welfare of the public.- Turner, supra, at
663 (quoting United States v. Midwest Video Corp., 406
U. S. 649, 668, n. 27 (1972) (plurality opinion) (quoting
Associated Press v. United States, 326 U. S. 1, 20 (1945)
(internal quotation marks omitted)); see also FCC v.
WNCN Listeners Guild, 450 U. S. 582, 594 (1981). That
policy, in turn, seeks to facilitate the public discussion
and informed deliberation, which, as Justice Brandeis
pointed out many years ago, democratic government
presupposes and the First Amendment seeks to achieve.
Whitney v. California, 274 U. S. 357, 375-376 (1927)
(Brandeis, J., concurring). See also New York Times Co.
v. Sullivan, 376 U. S. 254, 270 (1964); Red Lion Broad-
casting Co. v. FCC, 395 U. S. 367, 390 (1969); Associated
Press v. United States, supra, at 20. Indeed, Turner
rested in part upon the proposition that -assuring that
the public has access to a multiplicity of information
sources is a governmental purpose of the highest order,
for it promotes values central to the First Amendment.-
512 U. S., at 663.
With important First Amendment interests on both
sides of the equation, the key question becomes one of
proper fit. That question, in my view, requires a
reviewing court to determine both whether there are
significantly less restrictive ways to achieve Congress'
over-the-air programming objectives, and also to decide
whether the statute, in its effort to achieve those
objectives, strikes a reasonable balance between poten-
tially speech-restricting and speech-enhancing conse-
quences. Ward v. Rock Against Racism, 491 U. S. 781,
799-800 (1989); ante, at 36. The majority's opinion
analyzes and evaluates those consequences, and I agree
with its conclusions in respect to both of these matters.
Ante, at 31-43.
In particular, I note (and agree) that a cable system,
physically dependent upon the availability of space along
city streets, at present (perhaps less in the future)
typically faces little competition, that it therefore consti-
tutes a kind of bottleneck that controls the range of
viewer choice (whether or not it uses any consequent
economic power for economically predatory purposes),
and that some degree-at least a limited degree-of
governmental intervention and control through regula-
tion can prove appropriate when justified under O'Brien
(at least when not -content based-). Ante, at 14, 20-22,
25-31; see also Defendants' Joint Statement of Evidence
before Congress --12-21, 31-59 (App. 1254-1258,
1262-1274) (JSCR); Cable Act, 2(a)(2), P. L. 102-385,
106 Stat. 1460. Cf. Red Lion, supra, at 377-378,
387-401; 47 C. F. R. 73.123, 73.300, 73.598, 73.679
(1969) (FCC regulations upheld in Red Lion); United
Broadcasting Co., 10 F. C. C. 515 (1945); New Broad-
casting Co., 6 P & F Radio Reg. 258 (1950). I also agree
that, without the statute, cable systems would likely
carry significantly fewer over-the-air stations, ante, at 8,
18-20, that station revenues would therefore decline,
ante, at 25-31, and that the quality of over-the-air
programming on such stations would almost inevitably
suffer, e.g., JSCR --596, 704-706 (App. 1544, 1600-
1601); Rebuttal Declaration of Roger G. Noll --5, 11, 34,
38 (App. 1790, 1793, 1804-1805, 1806). I agree further
that the burden the statute imposes upon the cable
system, potential cable programmers, and cable viewers,
is limited and will diminish as typical cable system
capacity grows over time.
Finally, I believe that Congress could reasonably
conclude that the statute will help the typical over-the-
air viewer (by maintaining an expanded range of choice)
more than it will hurt the typical cable subscriber (by
restricting cable slots otherwise available for preferred
programming). The latter's cable choices are many and
varied, and the range of choice is rapidly increasing.
The former's over-the-air choice is more restricted; and,
as cable becomes more popular, it may well become still
more restricted insofar as the over-the-air market
shrinks and thereby, by itself, becomes less profitable.
In these circumstances, I do not believe the First
Amendment dictates a result that favors the cable
viewers' interests.
These and other similar factors discussed by the
majority, lead me to agree that the statute survives
-intermediate scrutiny,- whether or not the statute is
properly tailored to Congress' purely economic objectives.