In Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994), a unanimous Supreme Court held that different First Amendment standards applied to cable television and broadcast media. It determined that Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 did not regulate the content of speech, but remanded the case, also known as Turner I, to the lower court to decide facts necessary for reaching a definitive conclusion about the constitutionality of the sections. The case returned to the Supreme Court, in Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180 (1997), or Turner II. A five-justice majority concluded that the provisions at issue were indeed constitutional, satisfying intermediate scrutiny.

Law required cable television systems to reserve a percentage of their channels for broadcast programs

Sections 4 and 5 of the 1992 Act required that cable television systems reserve a certain percentage of their channels for the free transmission of local broadcast television programs. These “must-carry” provisions were intended to ensure the survival of broadcast television. In Red Lion Broadcasting Co. v. Federal Communications Commission (1969), the Court had held that the “scarcity of broadcast frequencies” justified government regulation of access to air time on broadcast television because the First Amendment’s goal of “protecting and furthering communications” could not be otherwise achieved given that the number of people seeking broadcasting access exceeded the number of frequencies.

The must-carry provisions of the 1992 law addressed similar concerns about depriving the public of access to a communicative resource. After three years of congressional hearings on the matter, it was determined that not carrying broadcast stations made economic sense for cable operators, whose access to a much larger number of households would entice advertisers away from broadcast television. The must-carry provisions were a way to maintain the public’s access to the only television programming free to anyone who owns a television set.

Court said 'must-carry' provisions were content neutral

In Turner I, the Court concluded that although the scarcity rationale did not apply to cable television, the provisions of the 1992 law were content neutral. The provisions were held therefore only to an intermediate level of judicial scrutiny because “the extent of the interference” on the cable operators’ editorial decisions “does not depend upon the content of the ... programming.” This level of judicial review required the application of the test set forth in United States v. O’Brien (1968), stating that a law is constitutional if it “furthers an important or substantial government interest”; “is unrelated to the suppression of free expression”; and the “incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” The Court remanded Turner I for additional fact-finding.

Court said there was an important government interest for the 'must-carry' provisions

Turner II examined the lower court’s ruling on whether the provisions in question satisfied the O’Brien test. Writing for the majority, Justice Anthony M. Kennedy explained that the Court was deferring to congressional findings about economic imbalance in the communications industry and the need to protect broadcast television. The Court concluded that these findings showed the existence of an important government interest that could sustain the viewpoint-neutral must-carry provisions.

Justice Sandra Day O’Connor wrote dissenting opinions in Turner I and Turner II. She viewed the provisions as content-based regulations of speech and questioned the “reasonableness” of the congressional findings to which the Court deferred. Although in both decisions the justices divided over the specific First Amendment issues, they all agreed that the rapid pace of technological change in the broadcast industry was a factor to consider not only in these decisions but also in future cases dealing with an increasingly digitized medium.

This article was originally published in 2009. Dr. Knowles is an Associate Professor of Political Science at the State University of New York at Oswego. She has written extensively about American law, jurisprudence, and legal history. Her publications include two books about the First Amendment: Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices (Palgrave Macmillan 2015) (co-edited with Steven B. Lichtman); and Free Speech Theory: Understanding the Controversies (Peter Lang, 2020) (co-edited with Brandon T. Metroka).

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