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SUPREME COURT OF THE UNITED STATES
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No. 93-44
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TURNER BROADCASTING SYSTEM, INC., et al.,
APPELLANTS v. FEDERAL COMMUNICATIONS
COMMISSION et al.
on appeal from the united states district court
for the district of columbia
[June 27, 1994]

  Justice O'Connor, with whom Justice Scalia and
Justice Ginsburg join, and with whom Justice Thomas
joins as to Parts I and III, concurring in part and
dissenting in part.
  There are only so many channels that any cable sys-
tem can carry.  If there are fewer channels than prog-
rammers who want to use the system, some program-
mers will have to be dropped.  In the must-carry provi-
sions of the Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. 102-385, 106 Stat.
1460, Congress made a choice: By reserving a little over
one-third of the channels on a cable system for broad-
casters, it ensured that in most cases it will be a cable
programmer who is dropped and a broadcaster who is re-
tained.  The question presented in this case is whether
this choice comports with the commands of the First
Amendment.

                            I
                            A
  The 1992 Cable Act implicates the First Amendment
rights of two classes of speakers.  First, it tells cable
operators which programmers they must carry, and

keeps cable operators from carrying others that they
might prefer.  Though cable operators do not actually
originate most of the programming they show, the Court
correctly holds that they are, for First Amendment pur-
poses, speakers.  Ante, at 11-12.  Selecting which speech
to retransmit is, as we know from the example of pub-
lishing houses, movie theaters, bookstores, and Reader's
Digest, no less communication than is creating the
speech in the first place.
  Second, the Act deprives a certain class of video pro-
grammers-those who operate cable channels rather
than broadcast stations-of access to over one-third of an
entire medium.  Cable programmers may compete only
for those channels that are not set aside by the must-
carry provisions.  A cable programmer that might other-
wise have been carried may well be denied access in
favor of a broadcaster that is less appealing to the view-
ers but is favored by the must-carry rules.  It is as if
the government ordered all movie theaters to reserve at
least one-third of their screening for films made by
American production companies, or required all book-
stores to devote one-third of their shelf space to nonprof-
it publishers.  As the Court explains in Parts I, II-A
and II-B of its opinion, which I join, cable programmers
and operators stand in the same position under the First
Amendment as do the more traditional media.
  Under the First Amendment, it is normally not within
the government's power to decide who may speak and
who may not, at least on private property or in tradi-
tional public fora.  The government does have the power
to impose content-neutral time, place, and manner re-
strictions, but this is in large part precisely because
such restrictions apply to all speakers.  Laws that treat
all speakers equally are relatively poor tools for control-
ling public debate, and their very generality creates a
substantial political check that prevents them from being
unduly burdensome.  Laws that single out particular
speakers are substantially more dangerous, even when
they do not draw explicit content distinctions.  See, e.g.,
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575, 584, 591-592 (1983); see also
Leathers v. Medlock, 499 U. S. 439, 447 (1991).
  I agree with the Court that some speaker-based re-
strictions-those genuinely justified without reference to
content-need not be subject to strict scrutiny.  But
looking at the statute at issue, I cannot avoid the con-
clusion that its preference for broadcasters over cable
programmers is justified with reference to content.  The
findings, enacted by Congress as 2 of the Act, and
which I must assume state the justifications for the law,
make this clear.  -There is a substantial governmental
and First Amendment interest in promoting a diversity
of views provided through multiple technology media.-
2(a)(6).  -[P]ublic television provides educational and
informational programming to the Nation's citizens,
thereby advancing the Government's compelling interest
in educating its citizens.-  2(a)(8)(A).  -A primary ob-
jective and benefit of our Nation's system of regulation
of television broadcasting is the local origination of pro-
gramming.  There is a substantial governmental interest
in ensuring its continuation.-  2(a)(10).  -Broadcast
television stations continue to be an important source of
local news and public affairs programming and other lo-
cal broadcast services critical to an informed electorate.-
2(a)(11).
  Similar justifications are reflected in the operative pro-
visions of the Act.  In determining whether a broadcast
station should be eligible for must-carry in a particular
market, the FCC must -afford particular attention to the
value of localism by taking into account such factors as
. . . whether any other [eligible station] provides news
coverage of issues of concern to such community or pro-
vides carriage or coverage of sporting and other events
of interest to the community.-  4, 47 U. S. C.
534(h)(1)(C)(ii) (1988 ed., Supp. IV).  In determining
whether a low-power station is eligible for must-carry,
the FCC must ask whether the station -would address
local news and informational needs which are not being
adequately served by full power television broadcast
stations.-  4, 47 U. S. C. 534(h)(2)(B) (1988 ed., Supp.
IV).  Moreover, the Act distinguishes between commer-
cial television stations and noncommercial educational
television stations, giving special benefits to the latter.
Compare 4 with 5.  These provisions may all be tech-
nically severable from the statute, but they are still
strong evidence of the statute's justifications.
  Preferences for diversity of viewpoints, for localism, for
educational programming, and for news and public af-
fairs all make reference to content.  They may not re-
flect hostility to particular points of view, or a desire to
suppress certain subjects because they are controversial
or offensive.  They may be quite benignly motivated.
But benign motivation, we have consistently held, is not
enough to avoid the need for strict scrutiny of content-
based justifications.  Simon & Schuster, Inc. v. Members
of New York State Crime Victims Bd., 502 U. S. ___, ___
(1991) (slip op., at 10-11); Arkansas Writers' Project, Inc.
v. Ragland, 481 U. S. 221, 228 (1987).  The First Amend-
ment does more than just bar government from inten-
tionally suppressing speech of which it disapproves.  It
also generally prohibits the government from excepting
certain kinds of speech from regulation because it thinks
the speech is especially valuable.  See, e.g., id., at
231-232; Regan v. Time, Inc., 468 U. S. 641, 648-649
(1984); Metromedia, Inc. v. San Diego, 453 U. S. 490,
514-515 (1981) (plurality); Carey v. Brown, 447 U. S.
455, 466-468 (1980); Police Department of Chicago v.
Mosley, 408 U. S. 92, 96 (1972); Cox v. Louisiana, 379
U. S. 536, 581 (1965) (Black, J., concurring); see also
R. A. V. v. St. Paul, 505 U. S. ___, ___ (1992) (slip op.,
at 8) (-The government may not regulate [speech] based
on hostility-or favoritism-towards the underlying
message expressed-).
  This is why the Court is mistaken in concluding that
the interest in diversity-in -access to a multiplicity- of
-diverse and antagonistic sources,- ante, at 40 (internal
quotation marks omitted)-is content neutral.  Indeed,
the interest is not -related to the suppression of free
expression,- ante, at 39 (emphasis added and internal
quotation marks omitted), but that is not enough for
content neutrality.  The interest in giving a tax break to
religious, sports, or professional magazines, see Arkansas
Writers' Project, supra, is not related to the suppression
of speech; the interest in giving labor picketers an
exemption from a general picketing ban, see Carey and
Mosley, supra, is not related to the suppression of
speech.  But they are both related to the content of
speech-to its communicative impact.  The interest in
ensuring access to a multiplicity of diverse and antago-
nistic sources of information, no matter how praise-
worthy, is directly tied to the content of what the
speakers will likely say.

                            B
  The Court dismisses the findings quoted above by spe-
culating that they do not reveal a preference for certain
kinds of content; rather, the Court suggests, the findings
show -nothing more than the recognition that the servi-
ces provided by broadcast television have some intrinsic
value and, thus, are worth preserving against the
threats posed by cable.-  Ante, at 24.  I cannot agree.
It is rare enough that Congress states, in the body of
the statute itself, the findings underlying its decision.
When it does, it is fair to assume that those findings re-
flect the basis for the legislative decision, especially
when the thrust of the findings is further reflected in
the rest of the statute.  See Church of Lukumi Babalu
Aye v. Hialeah, 508 U. S. ___, ___ (1993) (slip op., at
12-13) (relying on recitals in a city council resolution as
evidence of the justifications for an ordinance).
  Moreover, it does not seem likely that Congress would
make extensive findings merely to show that broadcast
television is valuable.  The controversial judgment at the
heart of the statute is not that broadcast television has
some value-obviously it does-but that broadcasters
should be preferred over cable programmers.  The best
explanation for the findings, it seems to me, is that they
represent Congress' reasons for adopting this preference;
and, according to the findings, these reasons rest in part
on the content of broadcasters' speech.  To say in the
face of the findings that the must-carry rules -impose
burdens and confer benefits without reference to the con-
tent of speech,- ante, at 19, cannot be correct, especially
in light of the care with which we must normally ap-
proach speaker-based restrictions.  See Minneapolis Star
& Tribune Co. v. Minnesota Comm'r of Revenue, 460
U. S. 575 (1983).
  It may well be that Congress also had other, content-
neutral, purposes in mind when enacting the statute.
But we have never held that the presence of a permissi-
ble justification lessens the impropriety of relying in
part on an impermissible justification.  In fact, we have
often struck down statutes as being impermissibly con-
tent based even though their primary purpose was indu-
bitably content neutral.  See Arkansas Writers' Project,
Inc., supra (striking down content-based exemptions in
a general revenue measure); Regan v. Time, Inc., supra
(striking down content-based exemptions in a general
anticounterfeiting statute); Metromedia, Inc. v. San
Diego, supra (plurality) (striking down on content dis-
crimination grounds a general urban beautification ordi-
nance); Carey v. Brown, supra, at 466-468 (striking
down on content discrimination grounds an ordinance
aimed at preserving residential privacy).  Of course, the
mere possibility that a statute might be justified with
reference to content is not enough to make the statute
content based, and neither is evidence that some legisla-
tors voted for the statute for content-based reasons.  But
when a content-based justification appears on the sta-
tute's face, we cannot ignore it because another, content-
neutral justification is present.

                            C
  Content-based speech restrictions are generally uncon-
stitutional unless they are narrowly tailored to a com-
pelling state interest.  Boos v. Barry, 485 U. S. 312, 321
(1988).  This is an exacting test.  It is not enough that
the goals of the law be legitimate, or reasonable, or even
praiseworthy.  There must be some pressing public ne-
cessity, some essential value that has to be preserved;
and even then the law must restrict as little speech as
possible to serve the goal.
  The interest in localism, either in the dissemination of
opinions held by the listeners' neighbors or in the re-
porting of events that have to do with the local commu-
nity, cannot be described as -compelling- for the pur-
poses of the compelling state interest test.  It is a legiti-
mate interest, perhaps even an important one-certainly
the government can foster it by, for instance, providing
subsidies from the public fisc-but it does not rise to the
level necessary to justify content-based speech restric-
tions.  It is for private speakers and listeners, not for
the government, to decide what fraction of their news
and entertainment ought to be of a local character and
what fraction ought to be of a national (or international)
one.  And the same is true of the interest in diversity of
viewpoints: While the government may subsidize speak-
ers that it thinks provide novel points of view, it may
not restrict other speakers on the theory that what they
say is more conventional.  Cf. Metro Broadcasting, Inc.
v. FCC, 497 U. S. 547, 612-613 (1990) (O'Connor, J.,
dissenting); Pacific Gas & Electric Co. v. Public Utilities
Comm'n, 475 U. S. 1, 20 (1986) (plurality).
  The interests in public affairs programming and educa-
tional programming seem somewhat weightier, though it
is a difficult question whether they are compelling
enough to justify restricting other sorts of speech.  We
have never held that the Government could impose edu-
cational content requirements on, say, newsstands, book-
stores, or movie theaters; and it is not clear that such
requirements would in any event appreciably further the
goals of public education.
  But even assuming arguendo that the Government
could set some channels aside for educational or news
programming, the Act is insufficiently tailored to this
goal.  To benefit the educational broadcasters, the Act
burdens more than just the cable entertainment program-
mers.  It equally burdens CNN, C-SPAN, the Discovery
Channel, the New Inspirational Network, and other
channels with as much claim as PBS to being education-
al or related to public affairs.
  Even if the Government can restrict entertainment in
order to benefit supposedly more valuable speech, I do
not think the restriction can extend to other speech that
is as valuable as the speech being benefited.  In the
rare circumstances where the government may draw con-
tent-based distinctions to serve its goals, the restrictions
must serve the goals a good deal more precisely than
this.  See Arkansas Writers' Project, Inc., 481 U. S., at
231-232; Erznoznik v. City of Jacksonville, 422 U. S.
205, 214-215 (1975).
  Finally, my conclusion that the must-carry rules are
content based leads me to conclude that they are an im-
permissible restraint on the cable operators' editorial
discretion as well as on the cable programmers' speech.
For reasons related to the content of speech, the rules
restrict the ability of cable operators to put on the pro-
gramming they prefer, and require them to include pro-
gramming they would rather avoid.  This, it seems to
me, puts this case squarely within the rule of Pacific
Gas & Electric Co., 475 U. S., at 14-15 (plurality); id.,
at 23-24 (Marshall, J., concurring in judgment); see also
Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241,
257-258 (1974).

                           II
  Even if I am mistaken about the must-carry provisions
being content based, however, in my view they fail
content-neutral scrutiny as well.  Assuming arguendo
that the provisions are justified with reference to the
content-neutral interests in fair competition and preser-
vation of free television, they nonetheless restrict too
much speech that does not implicate these interests.
  Sometimes, a cable system's choice to carry a cable
programmer rather than a broadcaster may be motivated
by anticompetitive impulses, or might lead to the broad-
caster going out of business.  See ante, at 38-45.  That
some speech within a broad category causes harm, how-
ever, does not justify restricting the whole category.  If
Congress wants to protect those stations that are in
danger of going out of business, or bar cable operators
from preferring programmers in which the operators
have an ownership stake, it may do that.  But it may
not, in the course of advancing these interests, restrict
cable operators and programmers in circumstances where
neither of these interests is threatened.
  -A regulation is not `narrowly tailored'-even under
the more lenient [standard applicable to content-neutral
restrictions]-where . . . a substantial portion of the
burden on speech does not serve to advance [the State's
content-neutral] goals.-  Simon & Schuster, 502 U. S., at
___-___, n. ** (slip op., at 15-16, n. **) (internal quota-
tion marks omitted).  If the government wants to avoid
littering, it may ban littering, but it may not ban all
leafleting.  Schneider v. State (Town of Irvington), 308
U. S. 147 (1939).  If the government wants to avoid
fraudulent political fundraising, it may bar the fraud,
but it may not in the process prohibit legitimate fund-
raising.  Schaumburg v. Citizens for a Better Environ-
ment, 444 U. S. 620 (1980); see also Edenfield v. Fane,
507 U. S. ___, ___-___ (1993) (slip op., at 15-16).  If the
government wants to protect householders from unwant-
ed solicitors, it may enforce -No Soliciting- signs that
the householders put up, but it may not cut off access
to homes whose residents are willing to hear what the
solicitors have to say.  Martin v. City of Struthers, 319
U. S. 141 (1943).  -Broad prophylactic rules in the area
of free expression are suspect.  Precision of regulation
must be the touchstone . . . .-  NAACP v. Button, 371
U. S. 415, 438 (1963) (citations omitted).
  The must-carry provisions are fatally overbroad, even
under a content-neutral analysis: They disadvantage
cable programmers even if the operator has no anticom-
petitive motives, and even if the broadcaster that would
have to be dropped to make room for the cable program-
mer would survive without cable access.  None of the
factfinding that the District Court is asked to do on re-
mand will change this.  The Court does not suggest that
either the antitrust interest or the loss of free television
interest are implicated in all, or even most, of the situa-
tions in which must-carry makes a difference.  Perhaps
on remand the District Court will find out just how
many broadcasters will be jeopardized, but the remedy
for this jeopardy will remain the same: Protect those
broadcasters that are put in danger of bankruptcy, with-
out unnecessarily restricting cable programmers in mar-
kets where free broadcasting will thrive in any event.

                           III
  Having said all this, it is important to acknowledge
one basic fact: The question is not whether there will be
control over who gets to speak over cable-the question
is who will have this control.  Under the FCC's view,
the answer is Congress, acting within relatively broad
limits.  Under my view, the answer is the cable opera-
tor.  Most of the time, the cable operator's decision will
be largely dictated by the preferences of the viewers; but
because many cable operators are indeed monopolists,
the viewers' preferences will not always prevail.  Our
recognition that cable operators are speakers is bottomed
in large part on the very fact that the cable operator
has editorial discretion.  Ante, at 11-12.
  I have no doubt that there is danger in having a sin-
gle cable operator decide what millions of subscribers
can or cannot watch.  And I have no doubt that Con-
gress can act to relieve this danger.  In other provisions
of the Act, Congress has already taken steps to foster
competition among cable systems.  3(a), 47 U. S. C.
543(a)(2) (1988 ed., Supp. IV).  Congress can encourage
the creation of new media, such as inexpensive satellite
broadcasting, or fiber-optic networks with virtually un-
limited channels, or even simple devices that would let
people easily switch from cable to over-the-air broadcast-
ing.  And of course Congress can subsidize broadcasters
that it thinks provide especially valuable programming.
  Congress may also be able to act in more mandatory
ways.  If Congress finds that cable operators are leaving
some channels empty-perhaps for ease of future expan-
sion-it can compel the operators to make the free chan-
nels available to programmers who otherwise would not
get carriage.  See PruneYard Shopping Center v. Robins,
447 U. S. 74, 88 (1980) (upholding a compelled access
scheme because it did not burden others' speech).  Con-
gress might also conceivably obligate cable operators to
act as common carriers for some of their channels, with
those channels being open to all through some sort of
lottery system or timesharing arrangement.  Setting
aside any possible Takings Clause issues, it stands to
reason that if Congress may demand that telephone com-
panies operate as common carriers, it can ask the same
of cable companies; such an approach would not suffer
from the defect of preferring one speaker to another.
  But the First Amendment as we understand it today
rests on the premise that it is government power, rather
than private power, that is the main threat to free ex-
pression; and as a consequence, the Amendment imposes
substantial limitations on the Government even when it
is trying to serve concededly praiseworthy goals.  Per-
haps Congress can to some extent restrict, even in a
content-based manner, the speech of cable operators and
cable programmers.  But it must do so in compliance
with the constitutional requirements, requirements that
were not complied with here.  Accordingly, I would re-
verse the judgment below.