Facts
- Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, including “must-carry” provisions requiring many cable television systems to set aside a portion of their channels for local commercial and public broadcast television stations.
- Congress made legislative findings that cable operators had gatekeeping power over access to subscribers, that many households relied on cable for television service, and that broadcast stations could be harmed if cable systems dropped them, potentially reducing local programming and the number of information sources available to the public.
- Turner Broadcasting System, Inc., along with other cable operators and related parties (plaintiffs), sued the Federal Communications Commission and the United States (defendants) in the United States District Court for the District of Columbia, arguing that the must-carry provisions violated the First Amendment by compelling carriage of speech and limiting cable operators’ editorial discretion over channel lineups.
- A three-judge district court rejected the First Amendment challenge and upheld the must-carry provisions, granting judgment for the government.
- The plaintiffs appealed directly to the United States Supreme Court under the statutory procedure for review of three-judge district court decisions.
Issues
- Do cable operators’ channel-selection and carriage decisions constitute protected speech under the First Amendment?
- Are the 1992 must-carry provisions content-based regulations (triggering strict scrutiny) or content-neutral regulations (triggering intermediate scrutiny)?
- Under the proper level of scrutiny, did the government carry its burden on the existing record to justify the must-carry provisions as applied to cable operators?
Decision
- The Court held that cable operators engage in speech and have First Amendment interests in selecting which stations and programming to carry, so regulations affecting channel capacity and carriage choices can implicate First Amendment protections.
- The Court declined to apply the more deferential approach used in broadcast regulation based on spectrum scarcity, reasoning that cable television does not fit that rationale.
- The Court concluded that the must-carry provisions are content-neutral on their face because they are justified by structural concerns about preserving access to local broadcast stations and maintaining the availability of multiple sources of information, rather than by disagreement with any message or viewpoint.
- Applying intermediate scrutiny, the Court determined that the existing record was not developed enough to decide whether the must-carry rules burdened more speech than necessary or whether they would materially address the harms Congress identified.
- The Court therefore vacated the district court’s judgment and remanded for further fact-finding and reconsideration under intermediate scrutiny.
Legal Principles
- Cable operators’ editorial judgments about what to include on their systems are protected by the First Amendment, even though cable systems also function as conduits for others’ speech.
- Content-based laws that target speech because of its subject matter or viewpoint are presumptively invalid and ordinarily require strict scrutiny; laws justified without reference to the content of speech may be treated as content-neutral and reviewed under intermediate scrutiny.
- A regulation can be content-neutral even if it refers to categories of speakers or services, when its justification rests on noncensorial aims such as preventing bottleneck control and preserving public access to diverse information sources.
- Content-neutral regulations that burden speech are tested under intermediate scrutiny, requiring the government to show an important interest unrelated to suppressing expression and a fit that does not burden substantially more speech than necessary.
- When Congress relies on predictive judgments about the operation of markets and communications systems, courts may credit those judgments, but the government must still supply an evidentiary basis adequate to evaluate whether the asserted harms are real and whether the chosen remedy will materially address them.
- On a facial First Amendment challenge to a cable carriage scheme, a court must examine the actual operation and effects of the law; where the record is incomplete, remand for additional findings is appropriate before upholding or invalidating the statute.
Conclusion
In Turner I, the Supreme Court recognized that cable operators’ carriage decisions receive First Amendment protection, rejected broadcast-style deference for cable, and treated the 1992 must-carry provisions as content-neutral regulations subject to intermediate scrutiny; because the record before the Court did not allow a reliable assessment of whether the rules were sufficiently justified and appropriately tailored, the Court vacated the judgment upholding the statute and remanded for further fact-finding.