Reasonable Inferences and Substantial Evidence: How the U.S. Supreme Court Side-Stepped the First Amendment in Upholding Content-Based Must-Carry Rules in Its Turner Decisions
Arbuckle, Mark R., Communications and the Law
In 1997, in Turner Broadcasting System, Inc. v. Federal Communications Commission,(1) the U.S. Supreme Court ended a legal battle that had lasted for more than twenty years when it upheld the must-carry provisions of the 1992 Cable Act.(2) The Court held that the must-carry rules are content-neutral. Additionally, the Court said that they are not overbroad, because in enacting the rules Congress had made reasonable inferences based on substantial evidence.
The 1992 must-carry rules are a revised version of FCC rules--twice held to be unconstitutional by the D.C. Circuit Court of Appeals in the 1980s(3)--which required cable operators to carry the signals of local broadcast stations on their cable systems.(4) Turner Broadcasting System and other cable operators and programmers charged that the rules infringed their First Amendment rights. Turner had unsuccessfully petitioned the FCC to delete the must-carry rules as far back as 1980 on the grounds that they violated the First Amendment rights of cable operators.(5) The must-carry rules were based on the premise that if cable companies are not required to carry local broadcast stations on their systems--systems with limited capacity--they will not voluntarily carry them, and many broadcast stations will suffer "financial harm and possible ruin."(6) Television viewers then would be deprived of the benefits of local broadcast television.(7) Congress feared that cable, with its "undue market power," threatened to "wipe out these local sources of information."(8)
In upholding must-carry with a 5-to-4 vote, the Court reaffirmed its 1994 Turner I(9) decision in which it held that the must-carry rules are content-neutral(10) and thus subject to the standards of intermediate scrutiny(11) enunciated in United States v. O'Brien.(12) Additionally, the Turner II Court held that must-carry served important government interests--preserving (in the face of competition from cable television) free, over-the-air broadcasting; promoting widespread dissemination of information from a multiplicity of sources; and promoting fair competition in the television programming market.(13) In short, in Turner I the Court said that the rules are content neutral, the O'Brien test is the proper standard for First Amendment evaluation, and the asserted government interests are "important in the abstract."(14) But the Court was not yet convinced that the must-carry rules actually would advance those interests--namely, protecting the economic health of local broadcasting--and vacated and remanded the case for further fact finding.(15) If the government could not demonstrate that the "recited harms are real" and that the must-carry requirement actually would alleviate the harms in a "direct and material way," must-carry would fail the narrow tailoring requirement of the O'Brien test.(16)
On remand, a three-judge panel of the U.S. District Court for the District of Columbia granted summary judgment for the government, holding (two to one) that when Congress enacted the must-carry rules to protect local broadcasting from the market power of the cable industry, it had indeed made "reasonable inferences based on substantial evidence."(17) The "substantial evidence"--the more than 18,000-page record compiled during three years of congressional hearings--convinced the district court that the must-carry provisions were necessary to protect local broadcasting.(18) This was the final piece of the puzzle needed to uphold must-carry. The Turner II Court accepted the district court's decision that sufficient evidence existed to demonstrate that must-carry rules were needed. That decision, along with the Court's holding in Turner I that must-carry is content neutral, cleared the way for the Court's ultimate decision that must-carry survived intermediate scrutiny and did not violate the First Amendment.
This article attempts to demonstrate that, as Justice O'Connor argued in her dissents in Turner I(19) and Turner II,(20) the 1992 must-carry rules are overbroad and content based. …