The Supreme Court/The Supreme Court.iso/pc/ascii/1993/order/042993.zr

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SUPREME COURT OF THE UNITED STATES
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No. A-798
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TURNER BROADCASTING SYSTEM, INC., et al. v.
FEDERAL COMMUNICATIONS COMMISSION et al.
on application for an injunction
[April 29, 1993]

  Chief Justice Rehnquist, Circuit Justice.
  Applicants have asked me, as Circuit Justice for the
District of Columbia Circuit, to enjoin enforcement of
4 and 5 of the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. 102-385, 106 Stat.
1471-1481, which require cable operators to reserve a
portion of their channel capacity for carrying local com-
mercial and noncommercial educational broadcast stations.
Applicants, cable operators and programmers, contend that
these -must-carry- provisions violate the First Amendment
because (1) they tell cable operators what speakers they
must carry, thereby controlling the content of the
operator's speech and shrinking the number of channels
available for programming they might prefer to carry; (2)
they inhibit the operators' editorial discretion to determine
what programming messages to provide to subscribers;
and (3) they give local broadcast -speakers- a preferred
status.  I herewith deny the application.
  The 1992 Cable Act, like all Acts of Congress, is pre-
sumptively constitutional.  As such, it -should remain in
effect pending a final decision on the merits by this
Court.-  Marshall v. Barlow's, Inc., 429 U. S. 1347, 1348
(1977) (Rehnquist, J., in chambers).  Moreover, the Act
was upheld by the three-judge District Court, and even
the dissenting judge rejected the argument now urged by
applicants-that Congress may not compel cable operators
to carry the video signals of programmers they would
otherwise choose not to carry.  ___ F. Supp. ___, ___ (DC
1993).  Unlike applicants, therefore, all three judges below
would recognize that the government may regulate cable
television as a medium of communication.  Ibid.
  Equally important is the fact that applicants are not
merely seeking a stay of a lower court's order, but an
injunction against the enforcement of a presumptively
valid Act of Congress.  Unlike a stay, which temporarily
suspends -judicial alteration of the status quo,- an injunc-
tion -grants judicial intervention that has been withheld
by the lower courts.-  Ohio Citizens For Responsible
Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia,
J., in chambers).  By seeking an injunction, applicants
request that I issue an order altering the legal status quo.
Not surprisingly, they do not cite any case in which such
extraordinary relief has been granted, either by a single
Justice or by the whole Court.
  The All Writs Act, 28 U. S. C. 1651(a), is the only
source of this Court's authority to issue an injunction.  We
have consistently stated, and our own Rules so require,
that such power is to be used sparingly.  See, e.g., Ohio
Citizens For Responsible Energy, supra, at 1313; this
Court's Rule 20.1 (-The issuance by the Court of an
extraordinary writ authorized by 28 U. S. C. 1651(a) is
not a matter of right, but of discretion sparingly exer-
cised-).  -[J]udicial power to stay an act of Congress, like
judicial power to hold that act unconstitutional, is an
awesome responsibility calling for the utmost circumspec-
tion in its exercise.  This factor is all the more important
where, as here, a single member of the Court is asked to
delay the will of Congress to put its policies into effect at
the time it desires.-  Heart of Atlanta Motel, Inc. v.
United States, 85 S.Ct. 1, 2, 13 L.Ed. 12 (1964) (Black,
J., in chambers).
  An injunction is appropriate only if (1) it is -necessary
or appropriate in aid of [our] jurisdiction,- 28 U. S. C.
1651(a), and (2) the legal rights at issue are -indisput-
ably clear.-  Communist Party of Indiana v. Whitcomb,
409 U. S. 1235 (1972) (Rehnquist, J., in chambers); Ohio
Citizens For Responsible Energy, supra, at 1313.  Without
doubt, implementation of 4 and 5 would not prevent
this Court's exercise of its appellate jurisdiction to decide
the merits of applicants' appeal.  Nor is it -indisputably
clear- that applicants have a First Amendment right to
be free of the must-carry provisions.  In Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241 (1974), we struck
down Florida's right of reply statute, holding that the
State may not compel -editors or publishers to publish
that which reason tells them should not be published.-
Id., at 256 (internal quotation marks omitted).  Under
Tornillo, Congress plainly could not impose the must-carry
provisions on privately owned newspapers.  In Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367 (1969), however,
we upheld the Federal Communications Commission's
requirement that broadcasters cover public issues, and
give each side of the issue fair coverage.  Noting that
there is a finite number of frequencies available, we
stated that -[i]t is the purpose of the First Amendment
to preserve an uninhibited marketplace of ideas in which
truth will ultimately prevail, rather than to countenance
monopolization of that market, whether it be by the
Government itself or a private licensee.-  Id., at 390.
Although we have recognized that cable operators engage
in speech protected by the First Amendment, Leathers v.
Medlock, 499 U. S. ___, ___ (1991); Los Angeles v. Pre-
ferred Communications, Inc., 476 U. S. 488, 494 (1986),
we have not decided whether the activities of cable
operators are more akin to that of newspapers or wireless
broadcasters.  Id., at 494-495.
  In light of these two lines of authority, it simply is not
indisputably clear that applicants have a First Amend-
ment right to be free from government regulation.  The
application for an injunction pending appeal to this Court
is therefore denied.