[ Stevens ]
[ Kennedy ]
[ O'Connor ]
[ Ginsburg ]
[ Blackmun ]
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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
Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations. This case presents the question whether these provisions abridge the freedom of speech or of the press, in violation of the First Amendment.
The United States District Court for the District of Columbia granted summary judgment for the United States, holding that the challenged provisions are consistent with the First Amendment. Because issues of material fact remain unresolved in the record as developed thus far, we vacate the District Court's judgment and remand the case for further proceedings.
The role of cable television in the Nation's communications system has undergone dramatic change over the past 45 years. Given the pace of technological advancement and the increasing convergence between cable andother electronic media, the cable industry today stands at the center of an ongoing telecommunications revolution with still undefined potential to affect the way we communicate and develop our intellectual resources.
The earliest cable systems were built in the late 1940's to bring clear broadcast television signals to remote or mountainous communities. The purpose was not to replace broadcast television but to enhance it. See United States v. Southwestern Cable Co., 392 U.S. 157, 161-164 (1968); D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video §1.02 (1992); M. Hamburg, All About Cable, ch. 1 (1979). Modern cable systems do much more than enhance the reception of nearby broadcast television stations. With the capacity to carry dozens of channels and import distant programming signals via satellite or microwave relay, today's cable systems are in direct competition with over the air broadcasters as an independent source of television programming.
Broadcast and cable television are distinguished by the different technologies through which they reach viewers. Broadcast stations radiate electromagnetic signals from a central transmitting antenna. These signals can be captured, in turn, by any television set within the antenna's range. Cable systems, by contrast, rely upon a physical, point to point connection between a transmission facility and the television sets of individual subscribers. Cable systems make this connection much like telephone companies, using cable or optical fibers strung aboveground or buried in ducts to reach the homes or businesses of subscribers. The construction of this physical infrastructure entails the use of public rights of way and easements and often results in the disruption of traffic on streets and other public property. As a result, the cable medium may depend for its very existence upon express permission from local governingauthorities. See generally Community Communications Co. v. Boulder, 660 F. 2d 1370, 1377-1378 (CA10 1981).
Cable technology affords two principal benefits over broadcast. First, it eliminates the signal interference sometimes encountered in over the air broadcasting and thus gives viewers undistorted reception of broadcast stations. Second, it is capable of transmitting many more channels than are available through broadcasting, giving subscribers access to far greater programming variety. More than half of the cable systems in operation today have a capacity to carry between 30 and 53 channels. 1994 Television and Cable Factbook I 69. And about 40 percent of cable subscribers are served by systems with a capacity of more than 53 channels. Ibid. Newer systems can carry hundreds of channels, and many older systems are being upgraded with fiber optic rebuilds and digital compression technology to increase channel capacity. See, e.g., Cablevision Systems Adds to Rapid Fiber Growth in Cable Systems, Communications Daily, pp. 6-7 (Feb. 26, 1993).
The cable television industry includes both cable operators (those who own the physical cable network and transmit the cable signal to the viewer) and cable programmers (those who produce television programs and sell or license them to cable operators). In some cases, cable operators have acquired ownership of cable programmers, and vice versa. Although cable operators may create some of their own programming, most of their programming is drawn from outside sources. These outside sources include not only local or distant broadcast stations, but also the many national and regional cable programming networks that have emerged in recent years, such as CNN, MTV, ESPN, TNT, C Span, The Family Channel, Nickelodeon, Arts and Entertainment, Black Entertainment Television, CourtTV, The Discovery Channel, American Movie Classics, Comedy Central, The Learning Channel, andThe Weather Channel. Once the cable operator has selected the programming sources, the cable system functions, in essence, as a conduit for the speech of others, transmitting it on a continuous and unedited basis to subscribers. See Brenner, Cable Television and the Freedom of Expression, 1988 Duke L. J. 329, 339 ("For the most part, cable personnel do not review any of the material provided by cable networks. . . . [C]able systems have no conscious control over program services provided by others").
In contrast to commercial broadcast stations, which transmit signals at no charge to viewers and generate revenues by selling time to advertisers, cable systems charge subscribers a monthly fee for the right to receive cable programming and rely to a lesser extent on advertising. In most instances, cable subscribers choose the stations they will receive by selecting among various plans, or "tiers," of cable service. In a typical offering, the basic tier consists of local broadcast stations plus a number of cable programming networks selected by the cable operator. For an additional cost, subscribers can obtain channels devoted to particular subjects or interests, such as recent release feature movies, sports, children's programming, sexually explicit programming, and the like. Many cable systems also offer pay per view service, which allows an individual subscriber to order and pay a one time fee to see a single movie or program at a set time of the day. See J. Goodale, All About Cable: Legal and Business Aspects of Cable and Pay Television §5.05 (1989); Brenner, supra, at 334, n. 22.
On October 5, 1992, Congress overrode a Presidential veto to enact the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460 (1992 Cable Act or Act). Among other things, theAct subjects the cable industry to rate regulation by the Federal Communications Commission (FCC) and by municipal franchising authorities; prohibits municipalities from awarding exclusive franchises to cable operators; imposes various restrictions on cable programmers that are affiliated with cable operators; and directs the FCC to develop and promulgate regulations imposing minimum technical standards for cable operators. At issue in this case is the constitutionality of the so called must carry provisions, contained in §§4 and 5 of the Act, which require cable operators to carry the signals of a specified number of local broadcast television stations.
Section 4 requires carriage of "local commercial television stations," defined to include all full power television broadcasters, other than those qualifying as "noncommercial educational" stations under §5, that operate within the same television market as the cable system. §4, 47 U.S.C. §§ 534(b)(1)(B), (h)(1)(A) (1988 ed., Supp. IV). [n.1] Cable systems with more than 12 active channels, and more than 300 subscribers, are required to set aside up to one third of their channels for commercial broadcast stations that request carriage. §534(b)(1)(B). Cable systems with more than 300 subscribers, but only 12 or fewer active channels, must carry the signals of three commercial broadcast stations. §534(b)(1)(A). [n.2]
If there are fewer broadcasters requesting carriage than slots made available under the Act, the cable operator is obligated to carry only those broadcasters who make the request. If, however, there are more requesting broadcast stations than slots available, the cable operator is permitted to choose which of these stations it will carry. §534(b)(2). [n.3] The broadcast signals carried under this provision must be transmitted on a continuous, uninterrupted basis, §534(b)(3), and must be placed in the same numerical channel position as when broadcast over the air. §534(b)(6). Further, subject to a few exceptions, a cable operator may not charge a fee for carrying broadcast signals in fulfillment of its must carry obligations. §534(b)(10).
Section 5 of the Act imposes similar requirements regarding the carriage of local public broadcast television stations, referred to in the Act as local "noncommercial educational television stations." 47 U.S.C. § 535(a) (1988 ed., Supp. IV). [n.4] A cable system with 12or fewer channels must carry one of these stations; a system of between 13 and 36 channels must carry between one and three; and a system with more than 36 channels must carry each local public broadcast station requesting carriage. §§535(b)(2)(A), (b)(3)(A), (b)(3)(D). The Act requires a cable operator to import distant signals in certain circumstances but provides protection against substantial duplication of local noncommercial educational stations. See §§535(b)(3)(B), (e). As with commercial broadcast stations, §5 requires cable system operators to carry the program schedule of the public broadcast station in its entirety and at its same over the air channel position. §§535(g)(1), (g)(5).
Taken together, therefore, §§4 and 5 subject all but the smallest cable systems nationwide to must carry obligations, and confer must carry privileges on all full power broadcasters operating within the same television market as a qualified cable system.
Congress enacted the 1992 Cable Act after conducting three years of hearings on the structure and operation of the cable television industry. See S. Rep. No. 102-92, pp. 3-4 (1991) (describing hearings); H. R. Rep. No. 102-628, p. 74 (1992) (same). The conclusions Congress drew from its factfinding process are recited in the text of the Act itself. See §§2(a)(1)%(21). In brief, Congress found that the physical characteristics of cable transmission, compounded by the increasing concentration of economic power in the cable industry, are endangering the ability of over the air broadcast television stations to compete for a viewing audience and thus for necessary operating revenues. Congress determined thatregulation of the market for video programming was necessary to correct this competitive imbalance.
In particular, Congress found that over 60 percent of the households with television sets subscribe to cable, §2(a)(3), and for these households cable has replaced over the air broadcast television as the primary provider of video programming. §2(a)(17). This is so, Congress found, because "[m]ost subscribers to cable television systems do not or cannot maintain antennas to receive broadcast television services, do not have input selector switches to convert from a cable to antenna reception system, or cannot otherwise receive broadcast television services." Ibid. In addition, Congress concluded that due to "local franchising requirements and the extraordinary expense of constructing more than one cable television system to serve a particular geographic area," the overwhelming majority of cable operators exercise a monopoly over cable service. §2(a)(2). "The result," Congress determined, "is undue market power for the cable operator as compared to that of consumers and video programmers." Ibid.
According to Congress, this market position gives cable operators the power and the incentive to harm broadcast competitors. The power derives from the cable operator's ability, as owner of the transmission facility, to "terminate the retransmission of the broadcast signal, refuse to carry new signals, or reposition a broadcast signal to a disadvantageous channel position." §2(a)(15). The incentive derives from the economic reality that "[c]able television systems and broadcast television stations increasingly compete for television advertising revenues." §2(a)(14). By refusing carriage of broadcasters' signals, cable operators, as a practical matter, can reduce the number of households that have access to the broadcasters' programming, and thereby capture advertising dollars that would otherwise go to broadcast stations. §2(a)(15).
Congress found, in addition, that increased vertical integration in the cable industry is making it even harder for broadcasters to secure carriage on cable systems, because cable operators have a financial incentive to favor their affiliated programmers. §2(a)(5). Congress also determined that the cable industry is characterized by horizontal concentration, with many cable operators sharing common ownership. This has resulted in greater "barriers to entry for new programmers and a reduction in the number of media voices available to consumers." §2(a)(4).
In light of these technological and economic conditions, Congress concluded that unless cable operators are required to carry local broadcast stations, "[t]here is a substantial likelihood that . . . additional local broadcast signals will be deleted, repositioned, or not carried," §2(a)(15); the "marked shift in market share" from broadcast to cable will continue to erode the advertising revenue base which sustains free local broadcast television, §§2(a)(13)%(14); and that, as a consequence, "the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized." §2(a)(16).
Soon after the Act became law, appellants filed these five consolidated actions in the United States District Court for the District of Columbia against the United States and the Federal Communications Commission (hereinafter referred to collectively as the Government), challenging the constitutionality of the must carry provisions. Appellants, plaintiffs below, are numerous cable programmers and cable operators. After additional parties intervened, a three judge District Court convened under 28 U.S.C. § 2284 to hear the actions. 1992 Cable Act §23, 47 U.S.C. § 555(c)(1) (1988 ed., Supp. IV). Each of the plaintiffs filed a motion for summaryjudgment; several intervenor defendants filed cross motions for summary judgment; and the Government filed a cross motion to dismiss. Although the Government had not asked for summary judgment, the District Court, in a divided opinion, granted summary judgment in favor of the Government and the other intervenor defendants, ruling that the must carry provisions are consistent with the First Amendment. 819 F. Supp. 32 (DC 1993).
The court found that in enacting the must carry provisions, Congress employed "its regulatory powers over the economy to impose order upon a market in dysfunction." Id., at 40. The court characterized the 1992 Cable Act as "simply industry specific antitrust and fair trade practice regulatory legislation," ibid., and said that the must carry requirements "are essentially economic regulation designed to create competitive balance in the video industry as a whole, and to redress the effects of cable operators' anti competitive practices." Ibid. The court rejected appellants' contention that the must carry requirements warrant strict scrutiny as a content based regulation, concluding that both the commercial and public broadcast provisions "are, in intent as well as form, unrelated (in all but the most recondite sense) to the content of any messages that [the] cable operators, broadcasters, and programmers have in contemplation to deliver." Ibid. The court proceeded to sustain the must carry provisions under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367 (1968), concluding that the preservation of local broadcasting is an important governmental interest, and that the must carry provisions are sufficiently tailored to serve that interest. 819 F. Supp., at 45-47.
Judge Williams dissented. He acknowledged the "very real problem" that "cable systems control access `bottlenecks' to an important communications medium," id., at 57, but concluded that Congress may not address thatproblem by extending access rights only to broadcast television stations. In his view, the must carry rules are content based, and thus subject to strict scrutiny, because they require cable operators to carry speech they might otherwise choose to exclude, and because Congress' decision to grant favorable access to broadcast programmers rested "in part, but quite explicitly, on a finding about their content." Id., at 58. Applying strict scrutiny, Judge Williams determined that the interests advanced in support of the law are inadequate to justify it. While assuming "as an abstract matter" that the interest in preserving access to free television is compelling, he found "no evidence that this access is in jeopardy." Id., at 62. Likewise, he concluded that the rules are insufficiently tailored to the asserted interest in programming diversity because cable operators "now carry the vast majority of local stations," and thus to the extent the rules have any effect at all, "it will be only to replace the mix chosen by cablecasters--whose livelihoods depend largely on satisfying audience demand--with a mix derived from congressional dictate." Id., at 61.
This direct appeal followed, see §23, 47 U.S.C. § 555(c)(1) (1988 ed., Supp. IV), and we noted probable jurisdiction. 509 U. S. ___ (1993).
There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. Leathers v. Medlock, 499 U.S. 439, 444 (1991). Through "original programming or by exercising editorial discretion over which stations or programs to include in its repertoire," cable programmers and operators "see[k] to communicate messages on a wide variety of topics and in a wide variety of formats." Los Angelesv. Preferred Communications, Inc., 476 U.S. 488, 494 (1986). By requiring cable systems to set aside a portion of their channels for local broadcasters, the must carry rules regulate cable speech in two respects: The rules reduce the number of channels over which cable operators exercise unfettered control, and they render it more difficult for cable programmers to compete for carriage on the limited channels remaining. Nevertheless, because not every interference with speech triggers the same degree of scrutiny under the First Amendment, we must decide at the outset the level of scrutiny applicable to the must carry provisions.
We address first the Government's contention that regulation of cable television should be analyzed under the same First Amendment standard that applies to regulation of broadcast television. It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media. Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (television), and National Broadcasting Co. v. United States, 319 U.S. 190 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (print), and Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781 (1988) (personal solicitation). But the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable regulation.
The justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium. See FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984); Red Lion, supra, at 388-389, 396-399; National Broadcasting Co., 319 U. S., at 226. As a general matter, there are more would be broadcasters than frequencies available in theelectromagnetic spectrum. And if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all. Id., at 212. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters. See FCC v. League of Women Voters, supra, at 377. ("The fundamental distinguishing characteristic of the new medium of broadcasting . . . is that [b]roadcast frequencies are a scarce resource [that] must be portioned out among applicants") (internal quotation marks omitted); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 799 (1978). In addition, the inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees. Red Lion, 395 U. S., at 390. As we said in Red Lion, "[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Id., at 388; see also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 101 (1973).
Although courts and commentators have criticized the scarcity rationale since its inception, [n.5] we have declinedto question its continuing validity as support for our broadcast jurisprudence, see FCC v. League of Women Voters, supra, at 376, n. 11, and see no reason to do so here. The broadcast cases are inapposite in the present context because cable television does not suffer from the inherent limitations that characterize the broadcast medium. Indeed, 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. Nor is there any danger of physical interference between two cable speakers attempting to share the same channel. In light of these fundamental technological differences between broadcast and cable transmission, application of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983) ("Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication") (footnote omitted).
This is not to say that the unique physical characteristics of cable transmission should be ignored when determining the constitutionality of regulations affecting cable speech. They should not. See infra, at 32-33. But whatever relevance these physical characteristics may have in the evaluation of particular cable regulations, they do not require the alteration of settled principles of our First Amendment jurisprudence.
Although the Government acknowledges the substantial technological differences between broadcast and cable, see Brief for Federal Appellees 22, it advances a second argument for application of the Red Lion framework to cable regulation. It asserts that the foundation of our broadcast jurisprudence is not the physical limitations of the electromagnetic spectrum, but rather the "market dysfunction" that characterizes the broadcast market. Because the cable market is beset by a similar dysfunction, the Government maintains, the Red Lion standard of review should also apply to cable. While we agree that the cable market suffers certain structural impediments, the Government's argument is flawed in two respects. First, as discussed above, the special physical characteristics of broadcast transmission, not the economic characteristics of the broadcast market, are what underlies our broadcast jurisprudence. See League of Women Voters, supra, at 377; National Citizens Comm. for Broadcasting, supra, at 799; Red Lion, supra, at 390. Second, 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. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657-658 (1990); Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 256-259 (1986); Miami Herald Publishing Co. v. Tornillo, 418 U. S., at 248-258.
By a related course of reasoning, the Government and some appellees maintain that the must carry provisions are nothing more than industry specific antitrust legislation, and thus warrant rational basis scrutiny under this Court's "precedents governing legislative efforts to correct market failure in a market whose commodity is speech," such as Associated Press v. United States, 326 U.S. 1 (1945), and Lorain Journal Co. v. United States, 342 U.S. 143 (1951). See Brief for Federal Appellees17. This contention is unavailing. Associated Press and Lorain Journal both involved actions against members of the press brought under the Sherman Antitrust Act, a law of general application. But while the enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment, compare Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991), with Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-567 (1991), laws that single out the press, or certain elements thereof, for special treatment "pose a particular danger of abuse by the State," Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987), and so are always subject to at least some degree of heightened First Amendment scrutiny. See Preferred Communications, supra, at 496 ("Where a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force"). Because the must carry provisions impose special obligations upon cable operators and special burdens upon cable programmers, some measure of heightened First Amendment scrutiny is demanded. See Minneapolis Star & Tribune, supra, at 583.
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. See Leathers v. Medlock, 499 U. S., at 449 (citing Cohen v. California, 403 U.S. 15, 24 (1971)); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638, 640-642 (1943). Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws ofthis sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U. S. ___, ___ (1991) (slip op., at 9).
For these reasons, the First Amendment, subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. R. A. V. v. St. Paul, 505 U. S. ___, ___ (1992) (slip op., at 4); Texas v. Johnson, 491 U.S. 397, 414 (1989). Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. See Simon & Schuster, 502 U. S., at ___ (slip op., at 11); id., at ___ (Kennedy, J., concurring in judgment) (slip op., at 2-3); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. See Riley v. National Federation for Blind of N.C., Inc., 487 U. S., at 798; West Virginia Bd. of Ed. v. Barnette, supra. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, see Clark v. Community for Creative Non Violence, 468 U.S. 288, 293 (1984), because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.
Deciding whether a particular regulation is content based or content neutral is not always a simple task. We have said that the "principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or]disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). See R. A. V., 505 U. S., at ___ (slip op., at 8) ("The government may not regulate [speech] based on hostility--or favoritism--towards the underlying message expressed"). The purpose, or justification, of a regulation will often be evident on its face. See Frisby v. Schultz, 487 U.S. 474, 481 (1988). But while a content based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases. Cf. Simon & Schuster, supra, at ___ (slip op., at 10) (" `illicit legislative intent is not the sine qua non of a violation of the First Amendment' ") (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983)). Nor will the mere assertion of a content neutral purpose be enough to save a law which, on its face, discriminates based on content. Arkansas Writers' Project, supra, at 231-232; Carey v. Brown, 447 U.S. 455, 464-469 (1980).
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. See, e.g., Burson v. Freeman, 504 U. S. ___, ___ (1992) (slip op., at 5) ("Whether individuals may exercise their free speech rights near polling places depends entirely on whether their speech is related to a political campaign"); Boos v. Barry, 485 U.S. 312, 318-319 (1988) (plurality opinion) (whether municipal ordinance permits individuals to "picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not"). By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral. See, e.g. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (ordinance prohibiting the posting of signs onpublic property "is neutral--indeed it is silent--concerning any speaker's point of view"); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (State Fair regulation requiring that sales and solicitations take place at designated locations "applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds").
Insofar as they pertain to the carriage of full power broadcasters, the must carry rules, on their face, impose burdens and confer benefits without reference to the content of speech. [n.6] Although the provisions interferewith 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. The rules impose obligations upon all operators, save those with fewer than 300 subscribers, regardless of the programs or stations they now offer or have offered in the past. Nothing in the Act imposes a restriction, penalty, or burden by reason of the views, programs, or stations the cable operator has selected or will select. The number of channels a cable operator must set aside depends only on the operator's channel capacity, see 47 U.S.C. §§ 534(b)(1), 535(b)(2) (3) (1988 ed., Supp. IV); hence, an operator cannot avoid or mitigate its obligations under the Act by altering the programming it offers to subscribers. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S., at 256-257 (newspaper may avoid access obligations by refraining from speech critical of political candidates).
The must carry provisions also burden cable programmers by reducing the number of channels for which they can compete. But, again, this burden is unrelated to content, for it extends to all cable programmers irrespective of the programming they choose to offer viewers. Cf. Boos, supra, at 319 (individuals may picket in front of a foreign embassy so long as their picket signs are not critical of the foreign government). And finally, the privileges conferred by the must carry provisions are also unrelated to content. 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. The aggregate effect of the rules is thus to make every full power commercial and noncommercial broadcaster eligible for must carry, provided only that the broadcaster operates within the same television market as a cable system.
It is true that the must carry provisions distinguish between speakers in the television programming market. But they do so based only upon the manner in which speakers transmit their messages to viewers, and not upon the messages they carry: Broadcasters, which transmit over the airwaves, are favored, while cable programmers, which do not, are disfavored. Cable operators, too, are burdened by the carriage obligations, but only because they control access to the cable conduit. So long as they are not a subtle means of exercising a content preference, speaker distinctions of this nature are not presumed invalid under the First Amendment.
That the must carry provisions, on their face, do not burden or benefit speech of a particular content does not end the inquiry. Our cases have recognized that 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. United States v. Eichman, 496 U.S. 310, 315 (1990) ("Although the Flag Protection Act contains no explicit content based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression") (emphasis in original) (internal quotation marks omitted); see also Ward, 491 U. S., at 791-792; Clark v. Community for Creative Non Violence, 468 U. S., at 293; cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. ___, ___ (1993) (slip op., at 12-13).
Appellants contend, in this regard, that the must carry regulations are content based because Congress' purpose in enacting them was to promote speech of a favored content. We do not agree. Our review of the Act and its various findings persuades us that 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.
In unusually detailed statutory findings, supra, at 7-9, Congress explained that because cable systems and broadcast stations compete for local advertising revenue, §§2(a)(14) (15), and because cable operators have a vested financial interest in favoring their affiliated programmers over broadcast stations, §2(a)(5), cable operators have a built in "economic incentive . . . to delete, reposition, or not carry local broadcast signals." §2(a)(16). Congress concluded that absent a requirement that cable systems carry the signals of local broadcast stations, the continued availability of free local broadcast television would be threatened. Ibid. Congress sought to avoid the elimination of broadcast television because, in its words, "[s]uch programming is . . . free to those who own television sets and do not require cable transmission to receive broadcast television signals," §2(a)(12), and because "[t]here is a substantial governmental interest in promoting the continued availability of such free television programming, especially for viewers who are unable to afford other means of receiving programming." Ibid.
By preventing cable operators from refusing carriage to broadcast television stations, the must carry rules ensure that broadcast television stations will retain a large enough potential audience to earn necessary advertising revenue--or, in the case of noncommercial broadcasters, sufficient viewer contributions, see §2(a)(8)(B)--to maintain their continued operation. In so doing, the provisions are designed to guarantee the survival of a medium that has become a vital part of the Nation's communication system, and to ensure that every individual with a television set can obtain access to free television programming.
This overriding congressional purpose is unrelated to the content of expression disseminated by cable andbroadcast speakers. Indeed, our precedents have held that "protecting noncable households from loss of regular television broadcasting service due to competition from cable systems," is not only a permissible governmental justification, but an "important and substantial federal interest." Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); see also United States v. Midwest Video Corp., 406 U.S. 649, 661-662, 664 (1972) (plurality opinion).
The design and operation of the challenged provisions confirm that the purposes underlying the enactment of the must carry scheme are unrelated to the content of speech. The rules, as mentioned, confer must carry rights on all full power broadcasters, irrespective of the content of their programming. They do not require or prohibit the carriage of particular ideas or points of view. They do not penalize cable operators or programmers because of the content of their programming. They do not compel cable operators to affirm points of view with which they disagree. They do not produce any net decrease in the amount of available speech. And they leave cable operators free to carry whatever programming they wish on all channels not subject to must carry requirements.
Appellants and the dissent make much of the fact that, in the course of describing the purposes behind the Act, Congress referred to the value of broadcast programming. In particular, Congress noted that broadcast television is "an important source of local news[,] public affairs programming and other local broadcast services critical to an informed electorate," §2(a)(11); see also §2(a)(10), and that noncommercial television "provides educational and informational programming to the Nation's citizens." §2(a)(8). We do not think, however, that such references cast any material doubt on the content neutral character of must carry. That Congress acknowledged the local orientation of broadcast programming and the role that noncommercial stations have played in educating the public does not indicate that Congress regarded broadcast programming as more valuable than cable programming. Rather, it reflects nothing more than the recognition that the services provided by broadcast television have some intrinsic value and, thus, are worth preserving against the threats posed by cable. See 819 F. Supp., at 44 ("Congress' solicitousness for local broadcasters' material simply rests on its assumption that they have as much to say of interest or value as the cable programmers who service a given geographic market audience").
The operation of the Act further undermines the suggestion that Congress' purpose in enacting must carry was to force programming of a "local" or "educational" content on cable subscribers. The provisions, as we have stated, benefit all full power broadcasters irrespective of the nature of their programming. In fact, if a cable system were required to bump a cable programmer to make room for a broadcast station, nothing would stop a cable operator from displacing a cable station that provides all local or education oriented programming with a broadcaster that provides very little. Appellants do not even contend, moreover, that broadcast programming is any more "local" or "educational" than cable programming. Cf. Leathers v. Medlock, 499 U. S., at 449 (state law imposing tax upon cable television, but exempting other media, is not content based, in part due to lack of evidence that cable programming "differs systematically in its message from that communicated by satellite broadcast programming, newspapers, or magazines").
In short, Congress' acknowledgment that broadcast television stations make a valuable contribution to the Nation's communications system does not render the must carry scheme content based. The scope and operation of the challenged provisions make clear, in ourview, that Congress designed the must carry provisions not to promote speech of a particular content, but to prevent cable operators from exploiting their economic power to the detriment of broadcasters, and thereby to ensure that all Americans, especially those unable to subscribe to cable, have access to free television programming--whatever its content.
We likewise reject the suggestion, advanced by appellants and by Judge Williams in dissent, that the must carry rules are content based because the preference for broadcast stations "automatically entails content requirements." 819 F. Supp., at 58. It is true that broadcast programming, unlike cable programming, is subject to certain limited content restraints imposed by statute and FCC regulation. [n.7] But it does not follow that Congress mandated cable carriage of broadcast television stations as a means of ensuring that particular programs will be shown, or not shown, on cable systems.
As an initial matter, the argument exaggerates the extent to which the FCC is permitted to intrude into matters affecting the content of broadcast programming. The FCC is forbidden by statute from engaging in "censorship" or from promulgating any regulation "which shall interfere with the [broadcasters'] right of free speech." 47 U.S.C. § 326. The FCC is well aware ofthe limited nature of its jurisdiction, having acknowledged that it "has no authority and, in fact, is barred by the First Amendment and [§326] from interfering with the free exercise of journalistic judgment." Hubbard Broadcasting, Inc., 48 F. C. C. 2d 517, 520 (1974). In particular, the FCC's oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations; for although "the Commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear." Network Programming Inquiry, Report and Statement of Policy, 25 Fed. Reg. 7293 (1960); see also Commercial TV Stations, 98 F. C. C. 2d 1076, 1091-1092 (1984), modified, 104 F. C. C. 2d 358 (1986), remanded in part on other grounds sub nom. Action for Children's Television v. FCC, 821 F. 2d 741 (CADC 1987).
Stations licensed to broadcast over the special frequencies reserved for "noncommercial educational" stations are subject to no more intrusive content regulation than their commercial counterparts. Noncommercial licensees must operate on a nonprofit basis, may not accept financial consideration in exchange for particular programming, and may not broadcast promotional announcements or advertisements on behalf of for profit entities. 47 CFR §§ 73.621(d) (e) (1993); see generally Public Broadcasting, 98 F. C. C. 2d 746, 751 (1984); Educational Broadcast Stations, 90 F. C. C. 2d 895 (1982), modified, 97 F. C. C. 2d 255 (1984). What is important for present purposes, however, is that noncommercial licensees are not required by statute or regulation to carry any specific quantity of "educational" programming or any particular "educational" programs. Noncommercial licensees, like their commercial counterparts, need only adhere to the general requirement thattheir programming serve "the public interest, convenience or necessity." En Banc Programming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960). The FCC itself has recognized that "a more rigorous standard for public stations would come unnecessarily close to impinging on First Amendment rights and would run the collateral risk of stifling the creativity and innovative potential of these stations." Public Broadcasting, supra, at 751; see also Public Radio and TV Programming, 87 F. C. C. 2d 716, 728-729, 732, ¶¶29-30, 37 (1981); Georgia State Bd. of Ed., 70 F. C. C. 2d 948 (1979).
In addition, although federal funding provided through the Corporation for Public Broadcasting (CPB) supports programming on noncommercial stations, the Government is foreclosed from using its financial support to gain leverage over any programming decisions. See 47 U.S.C. §§ 396(g)(1)(D) (directing CPB to "carry out its purposes and functions and engage in its activities in ways that will most effectively assure the maximum freedom of the public telecommunications entities and systems from interference with, or control of, program content or other activities"), §398(a) (CPB operates without interference from any department, agency, or officer of the Federal Government, including the FCC).
Indeed, our cases have recognized that Government regulation over the content of broadcast programming must be narrow, and that broadcast licensees must retain abundant discretion over programming choices. See FCC v. League of Women Voters of Cal., 468 U. S., at 378-380, 386-392 (invalidating under the First Amendment statute forbidding any noncommercial educational station that receives a grant from the CPB to "engage in editorializing"); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S., at 126 (describing "the risk of an enlargement of Government control over the content of broadcast discussion of public issues" as being of "critical importance" to theFirst Amendment). Thus, given the minimal extent to which the FCC and Congress actually influence the programming offered by broadcast stations, it would be difficult to conclude that Congress enacted must carry in an effort to exercise content control over what subscribers view on cable television. In a regime where Congress or the FCC exercised more intrusive control over the content of broadcast programming, an argument similar to appellants' might carry greater weight. But in the present regulatory system, those concerns are without foundation.
In short, the must carry provisions are not designed to favor or disadvantage speech of any particular content. Rather, they are meant to protect broadcast television from what Congress determined to be unfair competition by cable systems. In enacting the provisions, Congress sought to preserve the existing structure of the Nation's broadcast television medium while permitting the concomitant expansion and development of cable television, and, in particular, to ensure that broadcast television remains available as a source of video programming for those without cable. Appellants' ability to hypothesize a content based purpose for these provisions rests on little more than speculation and does not cast doubt upon the content neutral character of must carry. Cf. Arizona v. California, 283 U.S. 423, 455-457 (1931). Indeed, "[i]t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383 (1968) (citing McCray v. United States, 195 U.S. 27, 56 (1904)).
Appellants advance three additional arguments to support their view that the must carry provisions warrant strict scrutiny. In brief, appellants contend thatthe provisions (1) compel speech by cable operators, (2) favor broadcast programmers over cable programmers, and (3) single out certain members of the press for disfavored treatment. None of these arguments suffices to require strict scrutiny in the present case.
Appellants maintain that the must carry provisions trigger strict scrutiny because they compel cable operators to transmit speech not of their choosing. Relying principally on Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), appellants say this intrusion on the editorial control of cable operators amounts to forced speech which, if not per se invalid, can be justified only if narrowly tailored to a compelling government interest.
Tornillo affirmed an essential proposition: The First Amendment protects the editorial independence of the press. The right of reply statute at issue in Tornillo required any newspaper that assailed a political candidate's character to print, upon request by the candidate and without cost, the candidate's reply in equal space and prominence. Although the statute did not censor speech in the traditional sense--it only required newspapers to grant access to the messages of others--we found that it imposed an impermissible content based burden on newspaper speech. Because the right of access at issue in Tornillo was triggered only when a newspaper elected to print matter critical of political candidates, it "exact[ed] a penalty on the basis of . . . content." 418 U. S., at 256. We found, and continue to recognize, that right of reply statutes of this sort are an impermissible intrusion on newspapers' "editorial control and judgment." Id., at 258.
We explained that, in practical effect, Florida's right of reply statute would deter newspapers from speaking in unfavorable terms about political candidates:
"Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right of access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced." Id., at 257.
Moreover, by affording mandatory access to speakers with which the newspaper disagreed, the law induced the newspaper to respond to the candidates' replies when it might have preferred to remain silent. See Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion).
The same principles led us to invalidate a similar content based access regulation in Pacific Gas & Electric. At issue was a rule requiring a privately owned utility, on a quarterly basis, to include with its monthly bills an editorial newsletter published by a consumer group critical of the utility's ratemaking practices. Although the access requirement applicable to the utility, unlike the statutory mechanism in Tornillo, was not triggered by speech of any particular content, the plurality held that the same strict First Amendment scrutiny applied. Like the statute in Tornillo, the regulation conferred benefits to speakers based on viewpoint, giving access only to a consumer group opposing the utility's practices. 475 U. S., at 13, 15. The plurality observed that in order to avoid the appearance that it agreed with the group's views, the utility would "feel compelled to respond to arguments and allegations made by the [the group] in its messages to [the utility's] customers." Id., at 16. This "kind of forced response," the plurality explained, "is antithetical to the free discussion the First Amendment seeks to foster." Ibid.
Tornillo and Pacific Gas & Electric do not control this case for the following reasons. First, unlike the accessrules struck down in those cases, the must carry rules are content neutral in application. They are not activated by any particular message spoken by cable operators and thus exact no content based penalty. Cf. Riley v. National Federation of Blind of N.C., Inc., 487 U. S., at 795 (solicitation of funds triggers requirement to express government favored message). Likewise, they do not grant access to broadcasters on the ground that the content of broadcast programming will counterbalance the messages of cable operators. Instead, they confer benefits upon all full power, local broadcasters, whatever the content of their programming. Cf. Pacific Gas & Electric, supra, at 14 (access "awarded only to those who disagree with appellant's views and who are hostile to appellant's interests").
Second, appellants do not suggest, nor do we think it the case, that must carry will force cable operators to alter their own messages to respond to the broadcast programming they are required to carry. See Brenner, Cable Television and the Freedom of Expression, 1988 Duke L. J., at 379 ("Other than adding new ideas--offensive, insightful or tedious--the [speaker granted access to cable] does not influence an operator's agenda"). 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. Indeed, broadcasters are required by federal regulation to identify themselves at least once every hour, 47 CFR § 73.1201 (1993), and it is a common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 87 (1980) (noting that the views expressed by speakers who are granted a right of access to a shopping center would "not likely be identified withthose of the owner"). Moreover, in contrast to the statute at issue in Tornillo, no aspect of the must carry provisions would cause a cable operator or cable programmer to conclude that "the safe course is to avoid controversy," Tornillo, supra, at 257, and by so doing diminish the free flow of information and ideas.
Finally, the asserted analogy to Tornillo ignores an important technological difference between newspapers and cable television. Although a daily newspaper and a cable operator both may enjoy monopoly status in a given locale, the cable operator exercises far greater control over access to the relevant medium. A daily newspaper, no matter how secure its local monopoly, does not possess the power to obstruct readers' access to other competing publications--whether they be weekly local newspapers, or daily newspapers published in other cities. Thus, when a newspaper asserts exclusive control over its own news copy, it does not thereby prevent other newspapers from being distributed to willing recipients in the same locale.
The same is not true of cable. When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch. [n.8]
The potential for abuse of this private power over a central avenue of communication cannot be overlooked. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) ("Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems"). The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas. See Associated Press v. United States, 326 U. S., at 20. We thus reject appellants' contention that Tornillo and Pacific Gas & Electric require strict scrutiny of the access rules in question here.
Second, appellants urge us to apply strict scrutiny because the must carry provisions favor one set of speakers (broadcast programmers) over another (cable programmers). Appellants maintain that as a consequence of this speaker preference, some cable programmers who would have secured carriage in the absence of must carry may now be dropped. Relying on language in Buckley v. Valeo, 424 U.S. 1 (1976), appellants contend that such a regulation is presumed invalid under the First Amendment because the government may not "restrict the speech of some elements of our society in order to enhance the relative voice of others." Id., at 48-49.
To the extent appellants' argument rests on the view that all regulations distinguishing between speakers warrant strict scrutiny, see Brief for Appellants TurnerBroadcasting System, Inc., et al. 29, it is mistaken. At issue in Buckley was a federal law prohibiting individuals from spending more than $1,000 per year to support or oppose a particular political candidate. The Government justified the law as a means of "equalizing the relative ability of individuals and groups to influence the outcome of elections." Buckley, 424 U. S., at 48. We rejected that argument with the observation that Congress may not "abridge the rights of some persons to engage in political expression in order to enhance the relative voice of other segments of our society." Id., at 49, n. 55.
Our holding in Buckley does not support appellants' broad assertion that all speaker partial laws are presumed invalid. Rather, it stands for the proposition that 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). See Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548 (1983) (rejecting First Amendment challenge to differential tax treatment of veterans groups and other charitable organizations, but noting that the case would be different were there any "indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect"). Because the expenditure limit in Buckley was designed to ensure that the political speech of the wealthy not drown out the speech of others, we found that it was concerned with the communicative impact of the regulated speech. See Buckley, supra, at 17 ("it is beyond dispute that the interest in regulating the . . . giving or spending [of] money `arises in some measure because the communication . . . is itself thought to be harmful' ") (quoting United States v. O'Brien, 391 U. S., at 382). Indeed, were the expenditure limitation unrelated to the content of expression, there would have been no perceived need for Congress to "equaliz[e] the relative ability" of interested individuals to influence elections. 424 U. S., at 48. Buckley thus stands for the proposition that laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference.
The question here is whether Congress preferred broadcasters over cable programmers based on the content of programming each group offers. The answer, as we explained above, supra, at 19-28, is 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. Thus, the fact that the provisions benefit broadcasters and not cable programmers does not call for strict scrutiny under our precedents.
Finally, appellants maintain that strict scrutiny applies because the must carry provisions single out certain members of the press--here, cable operators--for disfavored treatment. See, e.g., Brief for Appellant Time Warner Entertainment Co. 28-30. In support, appellants point out that Congress has required cable operators to provide carriage to broadcast stations, but has not imposed like burdens on analogous video delivery systems, such as multichannel multipoint distribution (MMDS) systems and satellite master antenna television (SMATV) systems. Relying upon our precedents invalidating discriminatory taxation of the press, see, e.g., Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); Grosjean v. American Press Co., 297 U.S. 233 (1936), appellants contend that this sort of differential treatment poses a particular danger of abuse by the government and should be presumed invalid.
Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns. Minneapolis Star, for example, considered a use tax imposed on the paper and ink used in the production of newspapers. We subjected the tax to strict scrutiny for two reasons: first, because it applied only to the press; and, second, because in practical application it fell upon only a small number of newspapers. Minneapolis Star, supra, at 585, 591-592; see also Grosjean, supra (invalidating Louisiana tax on publications with weekly circulations above 20,000, which fell on 13 of the approximately 135 newspapers distributed in the State). The sales tax at issue in Arkansas Writers' Project, which applied to general interest magazines but exempted religious, professional, trade, and sports magazines, along with all newspapers, suffered the second of these infirmities. In operation, the tax was levied upon a limited number of publishers and also discriminated on the basis of subject matter. Arkansas Writers' Project, supra, at 229-230. Relying in part on Minneapolis Star, we held that this selective taxation of the press warranted strict scrutiny. 481 U. S., at 231.
It would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others. In Leathers v. Medlock, 499 U.S. 439 (1991), for example, we upheld against First Amendment challenge the application of a general state tax to cable television services, even though the print media and scrambled satellite broadcast television services were exempted from taxation. As Leathers illustrates, the fact that a law singles out a certain medium, or even the press as a whole, "is insufficient by itself to raise First Amendment concerns." Id., at 452. Rather,laws of this nature are "constitutionally suspect only in certain circumstances." Id., at 444. The taxes invalidated in Minneapolis Star and Arkansas Writers' Project, for example, targeted a small number of speakers, and thus threatened to "distort the market for ideas." 499 U. S., at 448. Although there was no evidence that an illicit governmental motive was behind either of the taxes, both were structured in a manner that raised suspicions that their objective was, in fact, the suppression of certain ideas. See Arkansas Writers' Project, supra, at 228-229; Minneapolis Star, 460 U. S., at 585. But such heightened scrutiny is unwarranted when the differential treatment is "justified by some special characteristic of" the particular medium being regulated. Ibid.
The must carry provisions, as we have explained above, 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. Appellants do not argue, nor does it appear, that other media--in particular, media that transmit video programming such as MMDS and SMATV--are subject to bottleneck monopoly control, or pose a demonstrable threat to the survival of broadcast television. It should come as no surprise, then, that Congress decided to impose the must carry obligations upon cable operators only.
In addition, the must carry provisions are not structured in a manner that carries the inherent risk of undermining First Amendment interests. The regulations are broad based, applying to almost all cable systems in the country, rather than just a select few. See 47 U.S.C. § 534(b)(1) (1988 ed., Supp. IV) (only cable systems with fewer than 300 subscribers exempted from must carry). As a result, the provisions do not pose the same dangers of suppression and manipulation that were posed by the more narrowly targeted regulationsin Minneapolis Star and Arkansas Writers' Project. For these reasons, the must carry rules do not call for strict scrutiny. See Leathers, supra, at 449, 453 (upholding state sales tax which applied to about 100 cable systems "offering a wide variety of programming" because the tax was not "likely to stifle the free exchange of ideas" and posed no "danger of suppress[ion] ").
In sum, the must carry provisions do not pose such inherent dangers to free expression, or present such potential for censorship or manipulation, as to justify application of the most exacting level of First Amendment scrutiny. We agree with the District Court that the appropriate standard by which to evaluate the constitutionality of must carry is the intermediate level of scrutiny applicable to content neutral restrictions that impose an incidental burden on speech. See Ward v. Rock Against Racism, 491 U.S. 781 (1989); United States v. O'Brien, 391 U.S. 367 (1968).
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." Id., at 377.
To satisfy this standard, a regulation need not be the least speech restrictive means of advancing the Government's interests. "Rather, the requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.' " Ward, supra, at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). Narrow tailoring in thiscontext requires, in other words, that the means chosen do not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, supra, at 799.
Congress declared that the must carry provisions serve three interrelated interests: (1) preserving the benefits of free, over the air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming. S. Rep. No. 102-92, p. 58, (1991); H. R. Rep. No. 102-6 28, 63 (1992); 1992 Cable Act, §§2(a)(8), (9), and (10). None of these interests is related to the "suppression of free expression," O'Brien, 391 U. S., at 377, or to the content of any speakers' messages. And viewed in the abstract, we have no difficulty concluding that each of them is an important governmental interest. Ibid.
In the Communications Act of 1934, Congress created a system of free broadcast service and directed that communications facilities be licensed across the country in a "fair, efficient, and equitable" manner. Communications Act of 1934, §307(b), 48 Stat. 1083, 47 U.S.C. § 307(b). Congress designed this system of allocation to afford each community of appreciable size an over the air source of information and an outlet for exchange on matters of local concern. United States v. Southwestern Cable Co., 392 U.S. 157, 173-174 (1968); Wollenberg, The FCC as Arbiter of "The Public Interest, Convenience, and Necessity," in A Legislative History of the Communications Act of 1934 pp. 61, 62-70 (M. Paglin ed. 1989). As we recognized in Southwestern Cable, supra, the importance of local broadcasting outlets "can scarcely be exaggerated, for broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's population." Id., at 177. The interest in maintaining the local broadcasting structure does not evaporate simply because cable has come upon the scene. Although cable and other technologies have ushered in alternatives to broadcast television, nearly 40 percent of American households still rely on broadcast stations as their exclusive source of television programming. And as we said in Capital Cities Cable, Inc. v. Crisp, "protecting noncable households from loss of regular television broadcasting service due to competition from cable systems" is an important federal interest. 467 U. S., at 714.
Likewise, assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment. Indeed, " `it has long been a basic tenet of national communications policy that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." ' " United States v. Midwest Video Corp., 406 U. S., at 668, n. 27 (plurality opinion) (quoting Associated Press v. United States, 326 U. S., at 20); see also FCC v. WNCN Listeners Guild, 450 U.S. 582, 594 (1981); FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 795 (1978). Finally, the Government's interest in eliminating restraints on fair competition is always substantial, even when the individuals or entities subject to particular regulations are engaged in expressive activity protected by the First Amendment. See Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Associated Press v. United States, supra; cf. FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 431-432 (1990).
That the Government's asserted interests are important in the abstract does not mean, however, that the must carry rules will in fact advance those interests. When the Government defends a regulation on speechas a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." Quincy Cable TV, Inc. v. FCC, 768 F. 2d 1434, 1455 (CADC 1985). It 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. See Edenfield v. Fane, 507 U. S. ___, ___ (1993) (slip op., at 8-9); Los Angeles v. Preferred Communications, Inc., 476 U. S., at 496 ("This Court may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity ") (internal quotation marks omitted); Home Box Office, Inc. v. FCC, 567 F. 2d 9, 36 (CADC 1977) (" [A] `regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist' ") (citation omitted).
Thus, in applying O'Brien scrutiny we must ask first whether the Government has adequately shown 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 to the foregoing question, the Government still bears the burden of showing that the remedy it has adopted does not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, 491 U. S., at 799 . On the state of the record developed thus far, and in the absence of findings of fact from the District Court, we are unable to conclude that the Government has satisfied either inquiry.
In defending the factual necessity for must carry, the Government relies in principal part on Congress' legislative finding that, absent mandatory carriage rules, the continued viability of local broadcast television would be "seriously jeopardized." §2(a)(16). See Brief for Federal Appellees 31-32. The Government contends that this finding, though predictive in nature, must be accordedgreat weight in the First Amendment inquiry, especially when, as here, Congress has sought to "address the relationship between two technical, rapidly changing, and closely interdependent industries--broadcasting and cable." Id., at 30.
We agree that courts must accord substantial deference to the predictive judgments of Congress. See, e.g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103 (1973) (The "judgment of the Legislative Branch" should not be ignored "simply because [appellants] cas[t] [their] claims under the umbrella of the First Amendment"). Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable. See FCC v. National Citizens Comm. for Broadcasting, supra, at 814; FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29 (1961). As an institution, moreover, Congress is far better equipped than the judiciary to "amass and evaluate the vast amounts of data" bearing upon an issue as complex and dynamic as that presented here. Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 331 n. 12 (1985). And Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review.
That Congress' predictive judgments are entitled to substantial deference does not mean, however, that they are insulated from meaningful judicial review altogether. On the contrary, we have stressed in First Amendment cases that the deference afforded to legislative findings does "not foreclose our independent judgment of the facts bearing on an issue of constitutional law." Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989); see also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978). This obligation toexercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence. See Century Communications Corp. v. FCC, 835 F. 2d 292, 304 (CADC 1987) ("[W]hen trenching on first amendment interests, even incidentally, the government must be able to adduce either empirical support or at least sound reasoning on behalf of its measures").
The Government's assertion that the must carry rules are necessary to protect the viability of broadcast television rests on two essential propositions: (1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and (2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether.
As support for the first proposition, the Government relies upon a 1988 FCC study showing, at a time when no must carry rules were in effect, that approximately 20 percent of cable systems reported dropping or refusing carriage to one or more local broadcast stations on at least one occasion. See Cable System Broadcast Signal Carriage Survey, Staff Report by the Policy and Rules Division, Mass Media Bureau, p. 10, Table 2 (Sept. 1, 1988), cited in S. Rep. No. 102-92, at 42-43. The record does not indicate, however, the time frame within which these drops occurred, or how many of these stations were dropped for only a temporary period and then restored to carriage. The same FCC study indicates that about 23 percent of the cable operators reported shifting the channel positions of one or more local broadcast stations, and that, in most cases, the repositioning was done for "marketing" rather than-technical" reasons. Id., at 44 (citing Signal Carriage Survey, supra, at 19, 22, Tables 10 and 13).
The parties disagree about the significance of these statistics. But even if one accepts them as evidence that a large number of broadcast stations would be dropped or repositioned in the absence of must carry, the Government must further demonstrate that broadcasters so affected would suffer financial difficulties as a result. Without a more substantial elaboration in the District Court of the predictive or historical evidence upon which Congress relied, or the introduction of some additional evidence to establish that the dropped or repositioned broadcasters would be at serious risk of financial difficulty, we cannot determine whether the threat to broadcast television is real enough to overcome the challenge to the provisions made by these appellants. We think it significant, for instance, that the parties have not presented any evidence that local broadcast stations have fallen into bankruptcy, turned in their broadcast licenses, curtailed their broadcast operations, or suffered a serious reduction in operating revenues as a result of their being dropped from, or otherwise disadvantaged by, cable systems.
The paucity of evidence indicating that broadcast television is in jeopardy is not the only deficiency in this record. Also lacking are any findings concerning the actual effects of must carry on the speech of cable operators and cable programmers--i.e., the extent to which cable operators will, in fact, be forced to make changes in their current or anticipated programming selections; the degree to which cable programmers will be dropped from cable systems to make room for local broadcasters; and the extent to which cable operators can satisfy their must carry obligations by devoting previously unused channel capacity to the carriage of local broadcasters. The answers to these and perhaps other questions are critical to the narrow tailoring stepof the O'Brien analysis, for unless we know the extent to which the must carry provisions in fact interfere with protected speech, we cannot say whether they suppress "substantially more speech than . . . necessary" to ensure the viability of broadcast television. Ward, 491 U.S., at 799. Finally, 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. See Sable Communications, 492 U. S., at 129.
In sum, because there are genuine issues of material fact still to be resolved on this record, we hold that the District Court erred in granting summary judgment in favor of the Government. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Because of the unresolved factual questions, the importance of the issues to the broadcast and cable industries, and the conflicting conclusions that the parties contend are to be drawn from the statistics and other evidence presented, we think it necessary to permit the parties to develop a more thorough factual record, and to allow the District Court to resolve any factual disputes remaining, before passing upon the constitutional validity of the challenged provisions.
The judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1 Although a cable system's local television market is defined by regulation, see 47 CFR § 73.3555(d)(3)(i) (1993), the FCC is authorized to make special market determinations upon request to better effectuate the purposes of the Act. See 1992 Cable Act §4, 47 U.S.C. § 534(h)(1)(C) (1988 ed., Supp. IV).
2 If there are not enough local full power commercial broadcast stations to fill the one third allotment, a cable system with up to 35 active channels must carry one qualified low power station and an operator with more than 35 channels must carry two of them. See §534(c)(1); see also §534(h)(2) (defining "qualified low power station"). Low power television stations are small broadcast entities that transmit over alimited geographic range. They are licensed on a secondary basis and are permitted to operate only if they do not interfere with the signals of full power broadcast stations.
3 Cable systems are not required to carry the signal of any local commercial television station that "substantially duplicates" the signal of any other broadcast station carried on the system. §534(b)(5); see also In re Implementation of the Cable Television Consumer Protection and Competition Act of 1992 (Broadcast Signal Carriage Issues), No. 92-259, March 29, 1993, ¶19 (defining "substantial duplication" as a 50% overlap in programming). Nor are they required to carry the signals of more than one station affiliated with each national broadcast network. If the cable operator does choose to carry broadcast stations with duplicative programming, however, the system is credited with those stations for purposes of its must carry obligations. §534(b)(5).
4 "Noncommercial educational television station[s]" are defined to include broadcast stations that are either (1) licensed by the FCC as a "noncommercial educational television broadcast station" and have, as licensees, entities which are eligible to receive grants from theCorporation for Public Broadcasting; or (2) owned and operated by a municipality and transmit "predominantly noncommercial programs for educational purposes." §§535(l)(1)(A)%(B).
5 See, e.g., Telecommunications Research and Action Center v. FCC, 801 F. 2d 501, 508-509 (CADC 1986), cert. denied, 482 U.S. 919 (1987); L. Bollinger, Images of a Free Press 87-90 (1991); L. Powe, American Broadcasting and the First Amendment 197-209 (1987); M. Spitzer, Seven Dirty Words and Six Other Stories 7-18 (1986); Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 Harv. L. Rev. 1062, 1072-1074 (1994); Winer, The Signal Cable Sends--Part I: Why Can't Cable Be More Like Broadcasting?, 46 Md. L. Rev. 212, 218 " 240 (1987); Coase, The Federal Communications Commission, 2 J. Law & Econ. 1, 12-27 (1959).
6 The must carry rules also require carriage, under certain limited circumstances, of low power broadcast stations. 47 U.S.C. § 534(c); see n. 2, supra. Under the Act, a low power station may become eligible for carriage only if, among other things, the FCC determines that the station's programming "would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." §534(h)(2)(B). We recognize that this aspect of §4 appears to single out certain low power broadcasters for special benefits on the basis of content. Because the District Court did not address whether these particular provisions are content based, and because the parties make only the most glancing reference to the operation of, and justifications for, the low power broadcast provisions, we think it prudent to allow the District Court to consider the content neutral or content based character of this provision in the first instance on remand.
In a similar vein, although a broadcast station's eligibility for must carry is based upon its geographic proximity to a qualifying cable system, §534(h)(1)(C)(i), the Act permits the FCC to grant must carry privileges upon request to otherwise ineligible broadcast stations. In acting upon these requests, the FCC is directed to give "attention to the value of localism" and, in particular, to whether the requesting station "provides news coverage of issues of concern to such community . . . or coverage of sporting and other events of interest to the community." §534(h)(1)(C)(ii). Again, the District Court did not address this provision, but may do so on remand.
7 See, e.g., 47 U.S.C. § 303b (1988 ed., Supp. IV) (directing FCC to consider extent to which license renewal applicant has "served the educational and informational needs of children"); Pub. L. 102-356, §16(a), 106 Stat. 954, note following 47 U.S.C. § 303 (1988 ed., Supp. IV) (restrictions on indecent programming); 47 U.S.C. § 312(a)(7) (allowing FCC to revoke broadcast license for willful or repeated failure to allow reasonable access to broadcast airtime for candidates seeking federal elective office); 47 CFR § 73.1920 (1993) (requiring broadcaster to notify victims of on air personal attacks and to provide victims with opportunity to respond over the air); En Banc Programming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960) (requiring broadcasters to air programming that serves "the public interest, convenience or necessity").
8 As one commentator has observed: "The central dilemma of cable is that it has unlimited capacity to accommodate as much diversity and as many publishers as print, yet all of the producers and publishers use the same physical plant. . . . If the cable system isitself a publisher, it may restrict the circumstances under which it allows others also to use its system." I. de Sola Pool, Technologies of Freedom 168 (1983).