Case Overview

Legal Principle at Issue

Whether the government may constitutionally require cable television system operators to carry local broadcast stations.


Affirmed (includes modified). Petitioning party did not receive a favorable disposition.


Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. In 1993, the district court held that the "must-carry" provisions of the Act were constitutional. On direct appeal, the Supreme Court, in Turner Broadcasting System v. Federal Communications Comm., 114 S. Ct. 2445 (1994), held that the "must-carry" provisions constituted a content-neutral regulation and could be constitutional. The Court then ordered the district court to determine whether the government could demonstrate that the provisions reasonably advanced an important governmental interest. On remand, a divided district court held that Congress had before it "substantial evidence" from which to conclude that the must-carry provisions were necessary to protect the local broadcast industry.

When examining content-neutral regulations, courts apply an "intermediate" level of scrutiny. Under this analysis, legislation that affects speech but that does not favor the message of one speaker over another can be constitutional if the legislation (1) furthers an important governmental interest and (2) does not burden more speech than necessary to advance that interest. United States v. O'Brien, 391 U.S. 367 (1968).

Importance of Case

The majority of the Court, over the strong objections of the dissent, deferred considerably to Congress' judgments. While this decision could simply be a mild aberration from those cases in which the Court has subjected Congress' findings to a more exacting analysis, it also could signify a new willingness to defer to Congress in arenas dominated by technology. The Court's decision in the Internet/Communications Decency Act case, Reno v. American Civil Liberties Union, No. 96-511, likely will demonstrate whether the Court intends to defer more to Congress in these areas.

Four of the five Justice comprising the majority identified three important governmental interests served by the must-carry provisions preserving the benefits of free, over-the-air local broadcast television, promoting the widespread dissemination of information from many sources, and promoting fair competition in the television programming market. Justice Breyer accepted the first two interests but rejected the government's interest in promoting fair competition. The Court then determined that Congress had before it substantial evidence that the provisions would not significantly affect the vast majority of cable operators, who are able to satisfy the must-carry obligations without dropping other programming. The Court noted throughout its opinion that its inquiry was whether Congress' legislative judgments were reasonable and not whether the Court agreed with those judgments.

Cite this page