520 U.S. 180 (1997), argued 7 Oct. 1996, decided 31 Mar. 1997 by vote of 5 to 4; Kennedy for the Court, joined by Rehnquist and Souter in full, Breyer and Stevens concurring in part or whole; O’Connor filed a dissenting opinion in which Scalia, Thomas, and Ginsburg joined.
The Turner case settled a longstanding First Amendment conflict between cable television operators and broadcast television owners. The Cable Television Consumer Protection and Competition Act of 1992 required that cable television operators with more than twelve channels had to set one-third of their capacity aside for use by over-the-air broadcast television stations and to do so without remuneration. This “must-carry” provision was first adjudicated by the high court in 1994 in Turner Broadcasting System, Inc. v. FCC (512 U.S. 622). In that case, the cable broadcasters argued that the “must-carry” provision of the law forced them to carry material that they did not wish to and that was in direct competition with them. The Court, however, in Turner I found the “must-carry” provision content neutral because it protected a particular medium of speech (broadcast television) rather than favoring or disfavoring any specific message. At the same time, the Court concluded that the measure indirectly placed certain burdens on cable operators. The justices ordered the case back to the lower federal courts for review to see if these indirect burdens were acceptable in advancing an important governmental interest, in this instance providing access by the public to broadcast television transmissions that would not otherwise be available in remote areas of the country. The District Court for the District of Columbia subsequently sustained not only the 1992 law but the “must-carry” provision as well on the ground that this was the most effective way for Congress to advance its goal of preserving broadcast television and that any burden placed on cable operators was minimal. The cable operators, led by media mogul Ted Turner, appealed a second time to the high court.
Justice Kennedy's opinion for a divided Court reiterated the constitutionality of the “must-carry” provision. Kennedy noted that the provision had the considerable benefit of preserving free over-the-air broadcasting, promoting the widespread dissemination of information, and promoting fair competition in television programming. Along with four of the other justices, Kennedy also concluded that cable television had come to so dominate the market that without some government support broadcast television might disappear. Of the approximately five hundred thousand cable television channels available nationwide, Kennedy noted, slightly more than 1 percent were affected by the decision. The dissenters, however, led by Justice Sandra Day O’Connor, argued that federal regulation imposed an inappropriate burden on cable operators by compelling them to carry signals of what could effectively be construed as their competition.
Turner II was a victory for broadcast television and for the idea that Congress can take reasonable steps to address what it believes are important interests, even if they do place some restriction on speech. In this instance, of course, the Court's actions mean that cable television systems with more than twelve channels must make channel capacity available to broadcasters. It also means that subscribers will have more choices of what to watch than would otherwise have been the case.