J385: Communication Law Home Page


No. 93-44

The court sustained the "must carry" provisions of the Cable Television Consumer Protection Act of 1992 holding that they were content-neutral and that under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367, they are sufficiently tailored to serve the important governmental interest in the preservation of local broadcasting.

On remand, a three-judge panel found that there was substantial evidence to support the must carry rule and that the impact on cable operators is minimal and diminishing as cable capacity expands.


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.


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. 41-45.

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.

Full Text (FindLaw)


School of Journalism and Communication