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Turner Broadcasting System, Inc. v. FCC

Supreme Court of the United States · 1994 · Constitutional Law

Constitutional LawFirst AmendmentFreedom of SpeechCable Television Regulationmust-carrycable televisionbroadcast televisioncontent neutrality

Facts

Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 require most cable systems to reserve a portion of their channels for local commercial and noncommercial broadcast stations that request carriage. Congress found that cable operators often possess monopoly power over cable service, control access to subscribers' homes, and have economic incentives to drop, reposition, or refuse local broadcast stations, thereby threatening the continued availability of free over-the-air television. Cable operators and cable programmers argued that the must-carry rules burdened cable speech by reducing operators' editorial control and limiting programmers' access to channel space. The District Court upheld the rules under intermediate scrutiny and entered summary judgment for the Government.

Issue

Whether the must-carry provisions of the 1992 Cable Act violate the First Amendment by compelling cable operators to carry local broadcast stations. More specifically, the Court had to decide what level of scrutiny applies to these cable regulations and whether summary judgment for the Government was proper on the existing factual record.

Rule

Cable television operators and programmers are protected by the First Amendment. Must-carry provisions that burden and benefit speakers without reference to the content of speech are content neutral and are evaluated under intermediate scrutiny under United States v. O'Brien, not the more deferential standard applicable to broadcast regulation. Under O'Brien, a content-neutral regulation is valid if it furthers an important or substantial governmental interest unrelated to the suppression of free expression and does not burden substantially more speech than necessary; the government must show that the asserted harms are real, not conjectural, and that the regulation will alleviate them in a direct and material way.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Congress enacts a statute requiring cable systems with more than 500 subscribers to reserve up to 20 percent of their channels for any full-power local over-the-air television stations that request carriage. The law applies regardless of whether the local station shows sports, sermons, movies, or news, and a cable operator in Denver challenges the statute as compelled speech.

What is the strongest argument for the government on the proper level of First Amendment scrutiny?

Explanation. The majority held that cable operators and programmers are protected by the First Amendment, so rational-basis review is insufficient. But must-carry obligations that burden and benefit speakers without reference to content are content neutral and are evaluated under intermediate scrutiny under O'Brien, not strict scrutiny and not the more deferential broadcast standard. The fact that the rule compels carriage does not alone make it content based when it applies regardless of message and is justified by preserving access and preventing cable bottleneck abuse. (Derived from Turner Broadcasting System, Inc. v. FCC (1994).)