512 U.S. 622 (1994)
In the late 1940s cable systems were first built to bring clear broadcast television signals to remote or mountainous communities.1 Modern systems with capacity for dozens or hundreds of channels came to compete directly with over-the-air broadcasters as an independent source of programming.2
Cable operators own the physical transmission facilities and select programming from outside sources including local and distant broadcast stations as well as national networks such as CNN, MTV, and ESPN.3 They charge subscribers monthly fees.4 Broadcasters transmit signals over the air at no charge to viewers and rely on advertising revenue.5
On October 5, 1992, Congress overrode a presidential veto to enact the Cable Television Consumer Protection and Competition Act of 1992.6 Sections 4 and 5 impose must-carry obligations on cable systems.7 Section 4 requires systems with more than twelve active channels and more than three hundred subscribers to set aside up to one-third of their channels for local commercial broadcast stations requesting carriage.8 Systems with twelve or fewer channels must carry three such stations.9 Section 5 imposes parallel requirements for local noncommercial educational stations.10 It mandates carriage of one to all requesting stations depending on system size.11 Carriage must be continuous, on the same channel position, and without charge to the broadcaster.12
Congress enacted the 1992 Cable Act after three years of hearings and recited its conclusions in the statute itself.13 It found that more than 60 percent of television households subscribe to cable.14 Cable operators enjoy monopoly power because of local franchising requirements and the expense of building competing systems.15 Vertical integration and horizontal concentration give operators both the incentive and ability to drop or reposition local broadcast signals in favor of affiliated programmers.16 This threatens the economic viability of free local broadcast television.17
Soon after the Act became law, numerous cable programmers and cable operators filed five consolidated actions in the United States District Court for the District of Columbia against the United States and the Federal Communications Commission.18 They challenged the must-carry provisions as violations of the First Amendment.19 A three-judge district court granted summary judgment in favor of the government and intervenor-defendants.20 The court ruled that the provisions are content-neutral economic regulation that survives intermediate scrutiny.21 Judge Williams dissented.22 The Supreme Court noted probable jurisdiction on direct appeal.23
Whether sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 abridge the freedom of speech or of the press in violation of the First Amendment?24
Cable programmers and cable operators engage in and transmit speech protected by the First Amendment.25 Not every interference with speech triggers the same degree of scrutiny.26 Regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.27
No. The must-carry provisions regulate cable speech by reducing the number of channels over which cable operators exercise unfettered control.2829 They make it more difficult for cable programmers to compete for carriage.30 Yet the provisions on their face impose burdens and confer benefits without reference to the content of speech.31 Congress enacted the 1992 Cable Act after three years of hearings and found that more than 60 percent of television households subscribe to cable.
Cable operators enjoy monopoly power because of local franchising requirements and the expense of building competing systems. The provisions confer must-carry rights on all full power broadcasters irrespective of the content of their programming.32 They do not require or prohibit the carriage of particular ideas.33 The overriding objective was to preserve access to free television programming for the 40 percent of Americans without cable rather than to favor programming of a particular subject matter, viewpoint, or format.34
The must-carry provisions do not abridge the freedom of speech or of the press on the basis of content and therefore do not trigger strict scrutiny under the First Amendment.35
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The paramount importance of according substantial deference to the predictive judgments of Congress must be emphasized, particularly where that legislative body has compiled an extensive record in the course of reaching its judgment.36 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.37 Because in this case there remain a few unresolved issues of material fact a remand is appropriate.38
The Government had occasion to submit to the District Court only portions of the record developed by Congress.39
Whether regulation of cable television should be analyzed under the same First Amendment standard that applies to regulation of broadcast television?40
The justification for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation rests upon the unique physical limitations of the broadcast medium.41 These include the scarcity of broadcast frequencies that required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters.42
No. Cable television does not suffer from the inherent limitations that characterize the broadcast medium.4344 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.45 There is no danger of physical interference between two cable speakers attempting to share the same channel.46 The special physical characteristics of broadcast transmission, not the economic characteristics of the broadcast market, underlie broadcast jurisprudence.47
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.48
Regulation of cable television is not analyzed under the same relaxed First Amendment standard that applies to regulation of broadcast television.49
Whether the must-carry provisions are content-based regulations subject to strict scrutiny?50
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.51 Laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.52 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.53
No. The must-carry provisions on their face impose burdens and confer benefits without reference to the content of speech.5455 Although the provisions interfere 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.56 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.57 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 programming for the 40 percent of Americans without cable.58
The must-carry provisions are content-neutral regulations that are not subject to strict scrutiny.59
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Joined by Scalia, Ginsburg, Thomas
The findings enacted by Congress as section 2 of the Act make clear that the preference for broadcasters over cable programmers is justified with reference to content.60 There is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media.61 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.62
Preferences for diversity of viewpoints for localism for educational programming and for news and public affairs all make reference to content and therefore demand strict scrutiny.63 The interest in ensuring access to a multiplicity of diverse and antagonistic sources of information is directly tied to the content of what the speakers will likely say.64
The must-carry rules reflect a content preference and on that account demand close scrutiny.65 Congress rested its decision to promote local broadcast stations in part but quite explicitly on a finding about their content. They were an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate. The facts do not support an inference that over-the-air TV is at risk.66
Whatever risk there may be in the abstract has completely failed to materialize.67 The paucity of evidence indicating that broadcast television is in jeopardy if it persists on remand should impel an ultimate judgment for the appellants.68
Whether the must-carry provisions compel speech by cable operators in a manner requiring strict scrutiny?69
The First Amendment protects the editorial independence of the press.70 Right-of-reply statutes that exact a penalty on the basis of content are an impermissible intrusion on newspapers' editorial control and judgment.71 The must-carry rules are content neutral in application and do not grant access to broadcasters on the ground that the content of broadcast programming will counterbalance the messages of cable operators.72
No. Unlike the access rules struck down in Tornillo and Pacific Gas & Electric the must-carry rules are content neutral in application.7374 They are not activated by any particular message spoken by cable operators and thus exact no content-based penalty.75 They confer benefits upon all full-power local broadcasters whatever the content of their programming.76 Must-carry will not force cable operators to alter their own messages to respond to the broadcast programming they are required to carry.77
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.78
The must-carry provisions do not compel speech by cable operators in a manner requiring strict scrutiny.79
Whether the must-carry provisions favor broadcast programmers over cable programmers in a manner requiring strict scrutiny?80
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.81 The fact that the provisions benefit broadcasters and not cable programmers does not call for strict scrutiny when 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.8283
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.84 The must-carry provisions favor one set of speakers over another based only upon the manner in which speakers transmit their messages to viewers and not upon the messages they carry.85 Broadcasters which transmit over the airwaves are favored while cable programmers which do not are disfavored but speaker distinctions of this nature are not presumed invalid under the First Amendment so long as they are not a subtle means of exercising a content preference.86
The must-carry provisions do not favor broadcast programmers over cable programmers in a manner requiring strict scrutiny.87
Whether the must-carry provisions single out cable operators for disfavored treatment in a manner requiring strict scrutiny?88
Regulations that discriminate among media or among different speakers within a single medium often present serious First Amendment concerns when they target a small number of speakers and thus threaten to distort the market for ideas.89 Laws of this nature are constitutionally suspect only in certain circumstances.90 The must-carry provisions are 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.91
No. The must-carry provisions 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.92 The regulations are broad based applying to almost all cable systems in the country rather than just a select few and as a result the provisions do not pose the same dangers of suppression and manipulation that were posed by the more narrowly targeted regulations in Minneapolis Star and Arkansas Writers' Project.93
The must-carry provisions do not single out cable operators for disfavored treatment in a manner requiring strict scrutiny.94
Whether the must-carry provisions satisfy the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech?95
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. To satisfy this standard a regulation need not be the least speech-restrictive means of advancing the Government's interests.96
No. Congress declared that the must-carry provisions serve three interrelated interests preserving the benefits of free over-the-air local broadcast television promoting the widespread dissemination of information from a multiplicity of sources and promoting fair competition in the market for television programming.9798 Viewed in the abstract each of these interests is an important governmental interest unrelated to the suppression of free expression.99 On the state of the record developed thus far however the Government has not adequately shown that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry or that the remedy it has adopted does not burden substantially more speech than is necessary to further the government's legitimate interests.100 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.101
The must-carry provisions cannot be sustained on the present record under intermediate scrutiny because genuine issues of material fact remain unresolved.102
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The District Court reached the correct result the first time around.103 Economic measures are always subject to second-guessing. They rest on inevitably provisional and uncertain forecasts about the future effect of legal rules in complex conditions. The findings in section 2 are sufficient to sustain the must-carry provisions against facial attack.104
An industry need not be in its death throes before Congress may act to protect it from economic harm threatened by a monopoly.105 The must-carry mechanism is analogous to the relief that might be appropriate for a threatened violation of the antitrust laws.106