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Turner Broadcasting System, Inc.. v. F.C.C. (93-44), 512 U.S. 622 (1994)
Concurrence
[ Stevens ]
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[ Kennedy ]
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[ O'Connor ]
Other
[ Ginsburg ]
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[ Blackmun ]
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SUPREME COURT OF THE UNITED STATES


No. 93-44


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

[June 27, 1994]

Justice Ginsburg, concurring in part and dissenting in part.

Substantially for the reasons stated by Circuit Judge Williams in his opinion dissenting from the three judge District Court's judgment, 819 F. Supp. 32, 57 (DC 1993), I conclude that Congress' "must carry" regime, which requires cable operators to set aside just over one third of their channels for local broadcast stations, reflects an unwarranted content based preference and hypothesizes a risk to local stations that remains imaginary. I therefore concur in Parts I, II-A, and II-B of the Court's opinion, and join Justice O'Connor's opinion concurring in part and dissenting in part.

The "must carry" rules Congress has ordered do not differentiate on the basis of "viewpoint," and therefore do not fall in the category of speech regulation that Government must avoid most assiduously. See R. A. V. v. St. Paul, 505 U. S. ___, ___ (1992) (Stevens, J., concurring in judgment) (slip op., at 15) ("[W]e have implicitly distinguished between restrictions on expression based on subject matter and restrictions based on viewpoint, indicating that the latter are particularly pernicious."). The rules, however, do reflect a content preference, and on that account demand close scrutiny.

The Court has identified as Congress' "overriding objective in enacting must carry," the preservation of over the air television service for those unwilling or unable to subscribe to cable, and has remanded the case for further airing centered on that allegedly overriding, content neutral purpose. Ante, at 21-24, 43-45. But an intertwined or even discrete content neutral justification does not render speculative, or reduce to harmless surplus, Congress' evident plan to advance local programming. See ante, at 3-4, 6-7 (O'Connor, J., dissenting).

As Circuit Judge Williams stated:

"Congress rested its decision to promote [local broadcast] stations in part, but quite explicitly, on a finding about their content--that they were `an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate.' " 819 F. Supp., at 58, quoting 1992 Cable Act, §2(a)(11).

Moreover, as Judge Williams persuasively explained, "[the] facts do not support an inference that over the air TV is at risk," 819 F. Supp., at 63, see id., at 62-65; "[w]hatever risk there may be in the abstract has completely failed to materialize." Id., at 63. "The paucity of evidence indicating that broadcast television is in jeopardy," see ante, at 44, if it persists on remand, should impel an ultimate judgment for the petitioners.