518 U.S. 727116 S.Ct. 2374135 L.Ed.2d 888
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al.v.FEDERAL COMMUNICATIONS COMMISSION et al.Certiorari to the United States Court of Appeals for the District of  Columbia Circuit.
No. 95-124.
United States Supreme Court
Argued February 21, 1996
Decided June 28, 1996*

Syllabus
These cases involve three sections of the Cable Television Consumer  Protection and Competition Act of 1992 (Act), as implemented by Federal  Communications Commission (FCC) regulations.  Both Section(s) 10(a) of  the Act-which applies to "leased access channels" reserved under federal  law for commercial lease by parties unaffiliated with the cable television system operator-and Section(s) 10(c)-which regulates "public  access channels" required by local governments for public, educational,  and governmental programming-essentially permit the operator to allow or  prohibit "programming" that it "reasonably believes . . . depicts sexual  . . . activities or organs in a patently offensive manner." Under  Section(s) 10(b), which applies only to leased access channels,  operators are required to segregate "patently offensive" programming on  a single channel, to block that channel from viewer access, and to unblock it (or later to reblock it) within 30 days of a subscriber's  written request.  Between 1984, when Congress authorized municipalities  to require operators to create public access channels, and the Act's  passage, federal law prohibited operators from exercising any editorial  control over the content of programs broadcast over either type of  access channel. Petitioners sought judicial review of Section(s) 10(a),  sections (as implemented) were consistent with the First Amendment.
Held:  The judgment is affirmed in part and reversed in part. 56 F. 3d  105, affirmed in part and reversed in part.
Justice Breyer delivered the opinion of the Court with respect to Part  III, concluding that Section(s) 10(b) violates the First Amendment.  That section's ``segregate and block'' requirements have obvious  speech-restrictive effects for viewers, who cannot watch programs  segregated on the "patently offensive" channel without considerable  advance planning or receive just an occasional few such programs, and  who may judge  a program's value through the company it keeps or refrain  from subscribing to the segregated channel out of fear that the operator  will disclose its subscriber list.  Moreover, Section(s) 10(b) is not appropriately tailored to achieve its basic, legitimate objective of  protecting children from exposure to "patently offensive" materials.  Less restrictive means utilized by Congress elsewhere to protect  children from "patently offensive" sexual material broadcast on cable  channels indicate that Section(s) 10(b) is overly restrictive while its  benefits are speculative.  These include some provisions of the   Telecommunications Act of 1996, which utilizes blocking without written  request, ``V-chips,'' and other significantly less restrictive means,  and the "lockbox" requirement that has been in place since the Cable Act  of 1984. Pp. 23-30.
Justice Breyer, joined by Justice Stevens, Justice O'Connor, and Justice  Souter, concluded in Parts I and II that Section(s) 10(a) is consistent  with the First Amendment.  Pp. 6-23.


1
(a) Close scrutiny demonstrates that Section(s) 10(a) properly addresses  a serious problem without imposing, in light of the relevant competing  interests, an unnecessarily great restriction on speech.  First, the  section comes accompanied with the extremely important child-protection  justification that this Court has often found compelling.  See, e.g.,  Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126.  Second, Section(s) 10(a) arises in a very particular context-congressional permission for cable operators to regulate programming that, but for a  previous Act of Congress, would have had no path of access to cable  channels free of an operator's control.  The First Amendment interests  involved are therefore complex, and require a balance between those  interests served by the access requirements themselves (increasing the  availability  of avenues of expression to programmers who otherwise would  not  have them), see H. R. Rep. No. 98-934, pp. 31-36 (1984), and the  disadvantage to the First Amendment interests of cable operators  and  other programmers (those to whom the operator would have assigned the channels devoted to access).  See Turner Broadcasting System, Inc. v.  FCC, 512 U. S. ___, ___.  Third, the problem Section(s) 10(a) addresses  is analogous to the "indecent" radio broadcasts at issue in FCC v.  Pacifica Foundation, 438 U. S. 726, and the balance Congress struck here   is commensurate with the balance the Court approved in that case. Fourth, Section(s) 10(a)'s permissive nature means that it likely restricts speech less than, not more than, the ban at issue in Pacifica.  The importance of the interest at stake here-protecting children from  exposure to patently offensive depictions of sex; the accommodation of  the interests of programmers in maintaining access channels and of cable  operators in editing the contents of their channels; the similarity of  the problem and its solution to those at issue in Pacifica; and the flexibility inherent in an approach that permits private cable operators  to make editorial decisions, persuasively establishes that Section(s)  10(a) is a sufficiently tailored response to an extraordinarily  important problem involving a complex balance of interests.  Sable,  supra, at 128, and Turner, supra, at ___, distinguished.  Pp. 6-18.


2
(b) Petitioners' reliance on this Court's "public forum" cases is  unavailing.  It is unnecessary and unwise to decide whether or how to  apply the public forum doctrine to leased access channels.  First, it is  not clear whether that doctrine should be imported wholesale into common  carriage regulation of such a new and changing area.  Second, although  limited public forums are permissible, the Court has not yet determined  whether the decision to limit a forum is necessarily subject to the highest level of scrutiny, and these cases do not require that it do so  now.  Finally, and most important, the features that make Section(s)  10(a) an acceptable constraint on speech also make it an acceptable  limitation on access to the claimed public forum. Pp. 18-20.


3
(c) Section 10(a)'s definition of the material it regulates is not impermissibly vague.  Because the language used is similar to that  adopted in Miller v. California, 413 U. S. 15, 24, as a ``guidelin[e]''  for state obscenity laws, it would appear to narrow cable operators'  program-screening authority to materials that involve the same kind of  sexually explicit materials that would be obscene under Miller, but that  might have "serious literary, artistic, political or scientific value"  or nonprurient purposes, ibid.  That the definition is not overly broad  is further indicated by this Court's construction of the phrase "patently offensive," see Pacifica, supra, at 748, 750, which would  narrow the category late at night when the audience  is basically adult,  and by the fact that Section(s) 10(a) permits operators to screen  programs only pursuant to a "written and published policy."  The  definition's "reasonabl[e] belie[f]" qualifier seems designed to provide  a legal excuse for the operator's honest mistake, and it constrains the  operator's discretion as much as it protects it.  Pp. 20-23.


4
Justice Breyer, joined by Justice Stevens and Justice Souter, concluded  in Part IV that Section(s) 10(c) violates the  First Amendment.  Section  different from Section(s) 10(a) for four reasons.  First, cable  operators have not historically exercised editorial control over public  access channels, such that Section(s) 10(c)'s restriction on  programmers' capacity to  speak does not effect a countervailing removal  of a restriction  on cable operators' speech. Second, programming on  those channels is normally subject to complex supervisory systems  composed of both public and private elements, and Section(s) 10(c) is  therefore likely less necessary to protect children.  Third, the  existence of a system that encourages and secures programming that the community considers valuable strongly suggests that a "cable operator's  veto" is more likely to erroneously exclude borderline programs that  should be broadcast, than to achieve the statute's basic objective of  protecting children.  Fourth, the Government has not shown that there is  a significant enough problem of patently offensive broadcasts to  children, over public access channels, that justifies the restriction  the First Amendment. Pp. 31-37.


5
Justice Kennedy, joined by Justice Ginsburg, concurred in the judgment  the public access channels regulated by Section(s) 10(c) are required by  local cable franchise authorities, those channels are ``designated  public forums,'' i.e., property that the government has opened for  expressive activity by the public. International Soc. for Krishna  Consciousness, Inc. v. Lee, 505 U. S. 672, 678.  Section 10(c) vests the  cable operator with a power under federal law, defined by reference to  the content of speech, to override the franchise agreement and undercut  the public forum the agreement creates.  Where the government thus excludes speech from a public forum on the basis of its content, the  Constitution requires that the regulation be given the most exacting  scrutiny.  See, e.g., ibid. Section 10(c) cannot survive strict  scrutiny.  Although Congress has a compelling interest in protecting  children from indecent speech, see, e.g., Sable Communications, 492 U.  S., at 126, Section(s) 10(c) is not narrowly tailored to serve that  interest, since, among other things, there is no basis in the record  establishing that Section(s) 10(c) is the least restrictive means to  accomplish that purpose.  See, e.g., Sable Communications, supra, at 128-130.  The Government's argument for not applying strict scrutiny  here, that indecent cablecasts are subject to the lower standard  of  review applied in FCC v. Pacifica Foundation, 438 U. S. 726,  748, is not  persuasive, since that lower standard does not even  apply to  infringements on the liberties of cable operators, Turner Broadcasting  System, Inc. v. FCC, 512 U. S. __, __.  There is less cause for a lower  standard when the rights of cable programmers and viewers are at stake.  Pp. 2-5, 12-16, 24-31.


6
Justice Thomas, joined by The Chief Justice and Justice Scalia,  agreed  that Section(s) 10(a) is constitutionally permissible.  Cable operators  are generally entitled to much the same First Amendment protection as  the print media.  Turner Broadcasting System, Inc. v. FCC, 512 U. S. __,  __, __.  Because Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241,  and Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1,  are therefore applicable, see Turner, supra, at __ (O'Connor, J.,  concurring in part and dissenting in part), the cable operator's  editorial rights have general primacy under the First Amendment over the  rights of programmers to transmit and of viewers to watch.  None of the  petitioners are cable operators; they are all cable viewers or access  programmers or their representative organizations.  Because the cable  access provisions are part of a scheme that restricts operators' free speech rights and expands the speaking opportunities of programmers who  have no underlying constitutional right to speak through the cable  medium, the programmers cannot challenge the scheme, or a particular  part of it, as an abridgment of their "freedom of speech."  Sections  operator would have absent Government regulation.  Pp. 1-15.


7
Breyer, J., announced the judgment of the Court and delivered the  opinion of the Court with respect to Part III, in which Stevens,  O'Connor, Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with  respect to Parts I, II, and V, in which Stevens, O'Connor and Souter,  JJ., joined, and an opinion with respect to Parts IV and VI, in which  Stevens and Souter, JJ., joined. Stevens, J., and Souter, J., filed  concurring opinions. O'Connor, J., filed an opinion concurring in part  and dissenting in part.  Kennedy, J., filed an opinion concurring in  part, concurring in the judgment in part, and dissenting in part, in which Ginsburg, J., joined.  Thomas, J., filed an opinion concurring in  the judgment in part and dissenting in part, in which Rehnquist, C. J.,  and Scalia, J., joined.


8
NOTICE: This opinion is subject to formal revision before publication in  the preliminary print of the United States Reports.  Readers are  requested to notify the Reporter of Decisions, Supreme Court of the  United States, Washington, D.C. 20543, of any typographical or other  formal errors, in order that corrections may be made before the  preliminary print goes to press.


9
Justice Breyer announced the judgment of the Court and delivered  the opinion of the Court with respect to Part III, an opinion with  respect to Parts I, II, and V, in which Justice Stevens, Justice  O'Connor, and Justice Souter join, and an opinion with respect to Parts  IV and VI, in which Justice Stevens and Justice Souter join.


10
These cases present First Amendment challenges to three statutory provisions that seek to regulate the broadcasting of "patently  offensive" sex-related material on cable television. Cable Television  Consumer Protection and Competition Act of 1992 (1992 Act or Act), 106  Stat. 1486, Section(s) 10(a), 10(b), and 10(c), 47 U. S. C. Section(s)  532(h), 532(j), and note following Section(s) 531.  The provisions apply  to programs broadcast over cable on what are known as "leased access  channels" and "public, educational, or governmental channels."  Two of  the provisions essentially permit a cable system operator to prohibit  the broadcasting of "programming" that the "operator reasonably believes  describes or depicts sexual or excretory activities or organs in a  patently offensive manner." 1992 Act, Section(s) 10(a); see Section(s)  Consumer Protection and Competition Act of 1992: Indecent Programming  and Other Types of Materials on CableAccess Channels, First Report and  Order, 8 FCC Rcd 998 (1993) (First Report and Order); In re  Implementation of Section 10 of the Cable Consumer Protection and  Competition Act of 1992, Indecent Programming and Other Types of  Materials on Cable Access Channels, Second Report and Order, 8 FCC Rcd  2638 (1993)  (Second Report and Order).  The remaining provision requires  cable system operators to segregate certain "patently offensive"  programming, to place it on a single channel, and to block that channel  from viewer access unless the viewer requests access in  advance and in writing. 1992 Act, Section(s) 10(b); 47 CFR Section(s) 76.701(g) (1995).


11
We conclude that the first provision-that permits the operator  to decide whether or not to broadcast such programs on leased access  channels-is consistent with the First Amendment. The second provision,  that requires leased channel operators to segregate and to block that  programming, and the third provision, applicable to public, educational,  and governmental channels, violate the First Amendment, for they are not  appropriately tailored to achieve the basic, legitimate objective of  protecting children from exposure to "patently offensive" material.

I.

12
Cable operators typically own a physical cable network used to  convey programming over several dozen cable channels into subscribers'  houses. Program sources vary from channel to channel.  Most channels  carry programming produced by independent firms, including "many  national and regional cable programming networks that have emerged in  recent years," Turner  Broadcasting System, Inc. v. FCC, 512 U. S. ___,  ___ (1994) (slip op., at 3), as well as some programming that the system  operator itself (or an operator affiliate) may provide.  Other channels  may simply retransmit through cable the signals of over-the-air  broadcast stations. Id., at ___ (slip op., at 3-4).  Certain special channels here at issue, called "leased channels" and "public, educational, or governmental channels," carry programs provided by those  to whom the law gives special cable system access rights.


13
A "leased channel" is a channel that federal law requires a cable system operator to reserve for commercial lease by unaffiliated  third parties.  About 10 to 15 percent of a cable system's channels  would typically fall into this category.  See 47 U. S. C. Section(s)  532(b).  "[P]ublic, educational, or governmental channels" (which we  shall call "public access" channels) are channels that, over the years,  local governments have required cable system operators to set aside for  public, educational, or governmental purposes as part of the consideration an operator gives in return for permission to install  cables under city streets and to use public rights-of-way.  See  Section(s) 531; see also H. R. Rep. No. 98-934, p. 30  (1984)  (authorizing local authorities to require creation of public access  channels).  Between 1984 and 1992 federal law (as  had much pre-1984  state law, in respect to public access channels) prohibited cable system  operators from exercising any  editorial control over the content of any  program broadcast over either leased or public access channels. See 47  U. S. C. Section(s) 531(e) (public access), 532(c)(2) (leased access).


14
In 1992, in an effort to control sexually explicit programming  conveyed over access channels, Congress enacted the three provisions  before us.  The first two provisions relate to leased channels.  The  first says:


15
"This subsection shall permit a cable operator to enforce      prospectively a written and published policy of prohibiting      programming  that the cable operator reasonably believes      describes or depicts sexual  or excretory activities or      organs in a patently offensive manner as  measured by      contemporary community standards."  1992 Act, Section(s)      10(a)(2), 106 Stat. 1486.


16
The second provision applicable only to leased channels requires  cable operators to segregate and to block similar programming if they  decide to permit, rather than to prohibit, its broadcast.  The provision  tells the Federal Communications Commission (FCC or Commission) to  promulgate regulations that will (a) require "programmers to inform  cable operators if the program[ming] would be indecent as defined by  Commission regulations"; (b) require "cable operators to place" such material "on a single channel"; and (c) require "cable operators to  block such single channel unless the subscriber requests access to such  channel in writing."  1992 Act, Section(s) 10(b)(1).  The Commission  issued regulations defining the material at issue in terms virtually  identical to those we have already set forth, namely as descriptions or  depictions of "sexual or excretory activities or organs in a patently  offensive manner" as measured by the cable viewing community. First  Report and Order, Para(s) 33-38, 8 FCC Rcd, at 1003-1004.  The regulations require the cable operators to place this material on a  single channel and to block it (say, by scrambling).  They also require  the system operator to provide access to the blocked channel "within 30  days" of a subscriber's written request for access and to re-block it  within 30 days of  a subscriber's request to do so.  47 CFR Section(s)


17
The third provision is similar to the first provision, but applies only to public access channels.  The relevant statutory section  instructs the FCC to promulgate regulations that will


18
"enable a cable operator of a cable system to prohibit the      use,  on such system, of any channel capacity of any public,      educational, or  governmental access facility for any      programming which contains obscene  material, sexually      explicit conduct, or material soliciting or promoting      unlawful conduct."  1992 Act, Section(s) 10(c), ibid.


19
The FCC, carrying out this statutory instruction, promulgated regulations defining "sexually explicit" in language almost identical to  that in the statute's leased channel provision, namely as descriptions  or depictions of "sexual or excretory activities or organs in a patently  offensive manner" as measured by the cable viewing community.  See 47  CFR Section(s) 76.702 (1995) (incorporating definition from 47 CFR  Section(s) 76.701(g)).


20
The upshot is, as we said at the beginning, that the federal law  before us (the statute as implemented through regulations) now permits  cable operators either to allow or to forbid the transmission of  "patently offensive" sex-related materials over both leased and public  access channels, and requires those operators, at a minimum, to  segregate and to block transmission of that same material on leased  channels.


21
Petitioners, claiming that the three statutory provisions, as implemented by the Commission regulations, violate the First Amendment,  sought judicial review of the Commission's First Report and Order and  its Second Report and Order in the United States Court of Appeals for  the District of Columbia Circuit.  A panel of that Circuit agreed with  petitioners that the provisions violated the First Amendment.  Alliance  for Community Media v. FCC, 10 F. 3d 812 (1993).  The entire Court of  Appeals, however, heard the case en banc and reached the opposite  conclusion.  It held all three statutory provisions (as implemented)  were consistent with the First Amendment.  Alliance for Community Media v. FCC, 56 F. 3d 105 (1995).  Four of the eleven en banc appeals court  judges dissented.  Two of the dissenting judges concluded that all three  provisions violated the First Amendment.  Two others thought that either  one, or two, but not all three of the provisions, violated the First  Amendment.  We granted certiorari to review the en banc Court's First  Amendment determinations.

II.

22
We turn initially to the provision that permits cable system operators to prohibit "patently offensive" (or "indecent") programming  transmitted over leased access channels.  1992 Act, Section(s) 10(a).  The Court of Appeals held that this provision did not violate the First  Amendment because the First Amendment prohibits only "Congress" (and,  through the Fourteenth Amendment, a "State"), not private individuals,  from "abridging  the freedom of speech."  Although the court said that it  found no "state action," 56 F. 3d, at 113, it could not have meant that  phrase literally, for, of course, petitioners attack (as "abridg[ing]  . . . speech") a congressional statute-which, by definition, is an Act  of "Congress."  More likely, the court viewed this statute's "permissive" provisions as not themselves  restricting speech, but,  rather, as simply reaffirming the authority to pick and choose  programming that a private entity,  say, a private broadcaster, would  have had in the absence of intervention by any federal, or local,  governmental entity.


23
We recognize that the First Amendment, the terms of which apply  to governmental action, ordinarily does not itself throw into  constitutional doubt the decisions of private citizens to permit, or to  restrict, speech-and this is so ordinarily even where those decisions  take place within the framework of a regulatory regime such as  broadcasting.  Were that not so, courts might have to face the  difficult, and potentially restrictive, practical task of deciding  which, among any number  of private parties involved in providing a  program (for example, networks, station owners, program editors, and  program producers), is the "speaker" whose rights may not be abridged,  and who is the speech-restricting "censor."  Furthermore, as this Court  has held, the editorial function itself is an aspect of "speech," see Turner, 512 U. S., at ___ (slip op., at 11-12), and a court's decision  that a private party, say, the station owner, is a "censor," could  itself interfere with that private "censor's" freedom to speak as an  editor. Thus, not surprisingly, this Court's First Amendment  broadcasting cases have dealt with governmental efforts to restrict, not  governmental efforts to provide or to maintain, a broadcaster's freedom  to pick and to choose programming.  Columbia Broadcasting System, Inc.  v. Democratic National Committee, 412  U. S. 94 (1973) (striking restrictions on broadcaster's ability  to refuse to carry political  advertising);  Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969)  (upholding restrictions on editorial authority); FCC v. League of Women  Voters of Cal., 468 U. S. 364 (1984) (striking restrictions); cf.  Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.  S. 530 (1980) (striking ban on political speech by public utility using  its billing envelopes as a broadcast medium); Central Hudson Gas & Elec.  Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980) (striking restriction on public utility advertising).


24
Nonetheless, petitioners, while conceding that this is ordinarily so, point to circumstances that, in their view, make the  analogy with private broadcasters inapposite and make this case a  special one, warranting a different constitutional result. As a  practical matter, they say, cable system operators have considerably  more power to "censor" program viewing than do broadcasters, for  individual communities typically have only one cable system, linking  broadcasters and other program providers with each community's many  subscribers.  See Turner, supra, at ___ (slip op., at 8) (only one cable  system in most communities; nationally more than 60% of homes subscribe  to cable, which then becomes the primary or sole source of video  programming in the overwhelming majority of these homes).  Moreover,  concern about system operators' exercise of this considerable power  originally led government-local and federal-to insist that operators  provide leased and public access channels free of operator editorial control.  H. R. Rep. No. 98-934, at 30-31.  To permit  system operators  to supervise programming on leased access channels will create the very  private-censorship risk that this anticensorship effort sought to avoid.  At the same time, petitioners add, cable systems have two relevant  special characteristics.  They are unusually involved with government,  for they depend upon government permission and government facilities   (streets, rights-of-way) to string the cable necessary for their  services. And in respect to leased channels, their speech interests are relatively weak because they act less like editors, such as newspapers  or television broadcasters, than like common carriers, such as telephone  companies.


25
Under these circumstances, petitioners conclude, Congress' "permissive" law, in actuality, will "abridge" their free speech. And  this Court should treat that law as a congressionally imposed,  content-based, restriction unredeemed as a properly tailored effort to  serve a "compelling interest."  See Simon & Schuster, Inc. v. Members of  N. Y. State Crime Victims Bd., 502 U. S. 105, 118 (1991); Sable  Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989).  They  further analogize the provisions to constitutionally forbidden  content-based restrictions upon speech taking place in "public forums"  such as public streets, parks, or buildings dedicated to open speech and  communication. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc.,  473 U. S. 788, 802 (1985); Perry Ed. Assn. v. Perry Local  Educators' Assn., 460 U. S. 37, 45 (1983); see also H. R. Rep. No. 98-934, supra,  at 30 (identifying public access channels as  the electronic equivalent  of a "speaker's soap box").  And, finally, petitioners say that the  legal standard the law contains (the "patently offensive" standard) is  unconstitutionally vague.  See, e.g., Interstate Circuit, Inc. v.  Dallas, 390 U. S. 676 (1968) (rejecting censorship ordinance as vague,  even though it was intended to protect children).


26
Like the petitioners, Justices Kennedy and Thomas would have us  decide this case simply by transferring and applying literally categorical standards this Court has developed in other contexts. For  Justice Kennedy, leased access channels are like a common carrier,  cablecast is a protected medium, strict scrutiny applies, Section(s)  10(a) fails this test, and, therefore, Section(s) 10(a) is invalid.  Post, at 17-20, 27-30.   For Justice Thomas, the case is simple because  the cable operator who owns the system over which access channels are  broadcast, like a bookstore owner with respect to what it displays on  the shelves, has a predominant First Amendment interest.  Post, at 6-7,  12-13. Both categorical approaches suffer from the same flaws: they import law developed in very different contexts into a new and changing  environment, and they lack the flexibility necessary to allow government  to respond to very serious practical problems without sacrificing the  free exchange of ideas the First Amendment is designed to protect.


27
The history of this Court's First Amendment jurisprudence, however, is one of continual development, as the Constitution's general  command that "Congress shall make no law . . . abridging the freedom of  speech, or of the press," has been applied to new circumstances  requiring different adaptations of prior principles and precedents.  The  essence of that protection is that Congress may not regulate speech  except in cases of extraordinary need and with the exercise of a degree  of care that we have not elsewhere required.  See, e.g., Schenck v.  United States, 249 U. S. 47, 51-52 (1919); Abrams v. United States, 250  U. S. 616, 627-628 (1919) (Holmes, J., dissenting); West Viginia Bd. of  Ed. v. Barnette, 319 U. S. 624, 639 (1943);  Texas v. Johnson, 491 U. S. 397, 418-420 (1989).  At the same time, our cases have not left Congress  or the States powerless to address the most serious problems.  See,  e.g., Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Young v.  American Mini Theaters, Inc. 427 U. S. 50 (1976); FCC v. Pacifica  Foundation,  438 U. S. 726 (1978).


28
Over the years, this Court has restated and refined these basic  First Amendment principles, adopting them more particularly to the  balance of competing interests and the special circumstances of each  field of application.  See, e.g., New York Times Co. v. Sullivan, 376 U.  S. 254 (1964) (allowing criticism of public officials to be regulated by  civil libel only if the plaintiff shows actual malice); Gertz v. Robert  Welch, Inc., 418 U. S. 323 (1974) (allowing greater regulation of speech  harming individuals who are not public officials, but still requiring a negligence standard); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367   (1969) (employing highly flexible standard in response to the scarcity  problem unique to over-the-air broadcast); Arkansas Writers' Project,  Inc. v. Ragland, 481  U. S. 221, 231-232 (1987) (requiring "compelling  state interest" and a "narrowly drawn" means in context of differential  taxation of media); Sable, supra, at 126, 131 (applying "compelling  interest," "least restrictive means," and "narrowly tailored"  requirements to indecent telephone communications); Turner, 512 U. S.,  at ___ (slip op., at 16) (using "heightened scrutiny" to  address content-neutral regulations of cable system broadcasts); Central Hudson  Gas & Elec. Corp., 447 U. S., at 566 (restriction on commercial speech  cannot be "more extensive than is necessary" to serve a "substantial"  government interest).


29
This tradition teaches that the First Amendment embodies an overarching commitment to protect speech from Government regulation  through close judicial scrutiny, thereby enforcing the Constitution's  constraints, but without imposing judicial formulae so rigid that they  become a straightjacket that disables Government from responding to  serious problems.  This Court, in different contexts, has consistently  held that the Government may directly regulate speech to address  extraordinary problems, where its regulations are appropriately tailored  to resolve those problems without imposing an unnecessarily great  restriction on speech.  Justices Kennedy and Thomas would have us  further declare which, among the many applications of the general approach that this Court has developed over the years, we are applying  here.  But no definitive choice among competing analogies (broadcast,  common carrier, bookstore) allows us to declare a rigid single standard,  good for now and for all future media and purposes.  That is not to say  that we reject all the more specific formulations of the standard-they  appropriately cover the vast majority of cases involving Government  regulation of speech.  Rather, aware as we are of the changes taking  place in the law, the technology, and the industrial structure, related to telecommunications, see, e.g., Telecommunications Act of 1996, 110  Stat. 56; S. Rep. No. 104-23 (1995); H. R. Rep. No. 104-204 (1995), we  believe it unwise and unnecessary definitively to pick one analogy or  one specific set of words now.  See Columbia Broadcasting, 412 U. S., at  102 ("The problems of regulation are rendered more difficult because the  broadcast industry is dynamic in terms of technological change;  solutions adequate a decade ago are not necessarily so now, and those  acceptable today may well be outmoded 10 years hence"); Pacifica, supra,  at 748 ("We have long recognized that each medium of expression presents  special First Amendment problems.")  We therefore think it premature to answer the broad questions that Justices Kennedy and Thomas raise in  their efforts to find a definitive analogy,  deciding, for example, the  extent to which private property can  be designated a public forum,  compare post, at 14-16 (Kennedy, J., concurring in part and dissenting  in part), with post, at 15-19 (Thomas, J., dissenting in part and  concurring in judgment); whether public access channels are a public  forum, post, at 12-13 (Kennedy J.); whether the Government's viewpoint   neutral decision to limit a public forum is subject to the same scrutiny  as a selective exclusion from a pre-existing public forum, post, at  20-25 (Kennedy, J.); whether exclusion from common carriage must for all purposes be treated like exclusion  from a public forum, post, at 18-19   (Kennedy, J.); and whether  the interests of the owners of communications  media always subordinate the interests of all other users of a medium,  post,  at 6-7 (Thomas, J.).


30
Rather than decide these issues, we can decide this case more  narrowly, by closely scrutinizing Section(s) 10(a) to assure that it  properly addresses an extremely important problem, without imposing, in  light of the relevant interests, an unnecessarily great restriction on  speech. The importance of  the interest at stake here-protecting children  from exposure to patently offensive depictions of sex; the accommodation  of the interests of programmers in maintaining access channels and of cable operators in editing the contents of their channels; the similarity of the problem and its solution to those at issue in Pacifica, supra; and the flexibility inherent in an approach that permits private cable operators to make editorial decisions, lead us to  conclude that Section(s) 10(a) is a sufficiently tailored response to an  extraordinarily important problem.


31
First, the provision before us comes accompanied with an extremely important justification, one that this Court has often found  compelling-the need to protect children from exposure to patently  offensive sex-related material. Sable Communications, 492 U. S., at 126;  Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); New York v. Ferber,  458 U. S. 747, 756-757 (1982).


32
Second, the provision arises in a very particular context-congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no  path of access to cable channels free of an operator's control.  The  First Amendment interests involved are therefore complex, and involve a  balance between those interests served by the access requirements  themselves (increasing the availability of avenues of expression to  programmers who otherwise would not have them), H. R. Rep. No. 98-934,  pp. 31-36 (1984), and the disadvantage to the First Amendment interests  of cable operators and other programmers (those to whom the cable  operator would have assigned the channels devoted to access).  See  Turner, 512 U. S., at ___ (slip op., at 11-12).


33
Third, the problem Congress addressed here is remarkably similar  to the problem addressed by the FCC in Pacifica, and the balance  Congress struck is commensurate with the balance we approved there.  In  Pacifica this Court considered a governmental ban of a radio broadcast  of "indecent" materials, defined in part, like the provisions before us,  to include


34
"`language that describes, in terms patently offensive as      measured by contemporary community standards for the      broadcast medium,  sexual or excretory activities and organs,      at times of the day when  there is a reasonable risk that      children may be in the audience.'"  438  U. S., at 732      (quoting 56 F. C. C. 2d 94, 98 (1975)).


35
The Court found this ban constitutionally permissible primarily  because "broadcasting is uniquely accessible to children" and children  were likely listeners to the program there at issue-an afternoon radio  broadcast. Id., at 749-750.  In addition, the Court wrote, "the  broadcast media have established a uniquely pervasive presence in the  lives of all Americans," id., at 748, "[p]atently offensive, indecent  material . . . confronts the citizen, not only in public, but also in  the privacy of the home," generally without sufficient prior warning to  allow the recipient to avert his or her eyes or ears, ibid.; and  "[a]dults who feel the need may purchase tapes  and records or go to  theaters and nightclubs" to hear similar performances. Id., at 750, n.  28.


36
All these factors are present here.  Cable television broadcasting, including access channel broadcasting, is as "accessible  to children" as over-the-air broadcasting, if not more so.  See Heeter,  Greenberg, Baldwin, Paugh, Srigley, & Atkin, Parental Influences on  Viewing Style, in Cableviewing 140 (C. Heeter & B. Greenberg eds. 1988)  (children spend more time watching television and view more channels  than do their parents, whether their household subscribes to cable or  receives television over the air).  Cable television systems, including access channels, "have established a uniquely pervasive presence in the  lives of all Americans."  Pacifica, supra, at 748.  See Jost, The Future  of Television, 4 The CQ Researcher 1131, 1146 (Dec. 23, 1994) (63% of  American homes subscribe to cable); Greenberg, Heeter, D'Alessio, &  Sipes, Cable and Noncable Viewing Style Comparisons, in Cableviewing, at  207 (cable households spend more of their day, on average, watching  television, and will watch more channels, than households without cable  service). "Patently offensive" material from these stations can  "confron[t] the citizen" in the "privacy of the home," Pacifica, supra,  at 748, with little or no prior warning.  Cableviewing, at 217-218 (while cable subscribers tend to use guides more than do broadcast viewers, there was no difference among these groups in the amount of  viewing that was planned, and, in fact, cable subscribers tended to  sample more channels before settling on a program, thereby making them  more, not less, susceptible to random exposure to unwanted materials).  There is nothing to stop "adults who feel the need" from finding  similar  programming elsewhere, say, on tape or in theaters.  In  fact, the power  of cable systems to control home program viewing is not absolute. Over-the-air broadcasting and direct broadcast  satellites already provide alternative ways for programmers to reach the home, and are  likely to do so to a greater extent in the near future.  See generally  Telecommunications Act of 1996,  110 Stat. 56, Section(s) 201 (advanced  television services), 205 (direct broadcast satellite), 302 (video  programming by telephone companies), and 304 (availability of navigation  devices to enhance multichannel programming); L. Johnson, Toward  Competition in Cable Television (1994).


37
Fourth, the permissive nature of Section(s) 10(a) means that it  likely restricts speech less than, not more than, the ban at issue in  Pacifica.  The provision removes a restriction as to some  speakers-namely, cable operators.  See supra, at 13. Moreover, although  the provision does create a risk that a program will not appear, that  risk is not the same as the certainty that accompanies a governmental  ban.  In fact, a glance at the programming that cable operators allow on  their own (nonaccess) channels suggests that this distinction is not theoretical, but real. See App. 393 (regular channel broadcast of Playboy and "Real Sex" programming).  Finally, the provision's permissive nature brings with it a flexibility that allows cable operators, for example, not to ban broadcasts, but, say, to rearrange  broadcast times, better to fit the desires of adult audiences while  lessening the risks of harm to children.  See First Report and Order  Para(s) 31, 8 FCC Rcd, at 1003 (interpreting the Act's provisions to  allow cable operators broad discretion over what to do with offensive  materials).  In  all these respects, the permissive nature of the  approach taken  by Congress renders this measure appropriate as a means  of achieving the underlying purpose of protecting children.


38
Of course, cable system operators may not always rearrange or reschedule patently offensive programming.  Sometimes, as petitioners  fear, they may ban the programming instead.  But the same may be said of  Pacifica's ban.  In practice, the FCC's daytime broadcast ban could have  become a total ban, depending upon how private operators (programmers,  station owners, networks) responded to it.  They would have had to  decide whether to reschedule the daytime show for nighttime broadcast in  light of comparative audience demand and a host of other practical factors that similarly would determine the practical outcomes of the  provisions before us.  The upshot, in both cases, must be uncertainty as  to practical consequences-of the governmental ban in the one case and of  the permission in the other.  That common uncertainty makes it difficult  to say the provision here is, in any respect, more restrictive than the  order in Pacifica.  At the same time, in the respects we discussed, the  provision is significantly less restrictive.


39
The existence of this complex balance of interests persuades us  that the permissive nature of the provision, coupled with its viewpoint-neutral application, is a constitutionally permissible way to  protect children from the type of sexual material that concerned  Congress, while accommodating both the First Amendment interests served  by the access requirements and those served in restoring to cable  operators a degree of the editorial control that Congress removed in  1984.


40
Our basic disagreement with Justice Kennedy is narrow.  Like him, we believe that we must scrutinize Section(s) 10(a) with the greatest care.  Like Justices Kennedy and Thomas, we believe that the  interest of protecting children that Section(s) 10(a) purports to serve  is compelling.  But we part company with Justice Kennedy on two issues.  First, Justice Kennedy's focus on categorical analysis forces him to  disregard the cable system operators' interests.  Post, at 27-28.  We,  on the other hand, recognize that in the context of cable broadcast that  involves an access requirement (here, its partial removal), and unlike  in most cases where we have explicitly required "narrow tailoring," the  expressive interests of cable operators do play a legitimate role.  Cf.  Turner, 512 U. S., at __-__ (slip op., at 11-12). While we cannot agree  with Justice Thomas that everything turns on the rights of the cable  owner, see post, at 12-13, we also cannot agree with Justice Kennedy  that we must ignore the expressive interests of cable operators  altogether.  Second, Justice Kennedy's application of a very strict  "narrow tailoring" test depends upon an analogy with a category ("the  public forum cases"), which has been distilled over time from the  similarities of many cases.  Rather than seeking an analogy to a  category of cases, however, we have looked to the cases themselves.  And, as we have said, we found that Pacifica provides the closest  analogy and lends considerable support to our conclusion.


41
Petitioners and Justice Kennedy, see post, at 19, 25, argue that  the opposite result is required by two other cases: Sable Communications  of Cal., Inc. v. FCC, 492 U. S. 115 (1989), a case in which this Court  found unconstitutional a statute that banned "indecent" telephone  messages, and Turner, in which this  Court stated that cable broadcast  receives full First Amendment protection.  See Turner, supra, at __   (slip op., at 12-16).  The ban at issue in Sable, however, was not only  a total governmentally imposed ban on a category of communications, but also involved a communications medium, telephone service, that was significantly less likely to expose children to the banned material, was  less intrusive, and allowed for significantly more control over what  comes into the home than either broadcasting or the cable transmission  system before us.  See 492 U. S., at 128. The Court's distinction in  Turner, furthermore, between cable and broadcast television, relied on  the inapplicability of the spectrum scarcity problem to cable.  See 512  U. S., at ___, (slip op., at 12-16).  While that distinction was  relevant in Turner to the justification for structural regulations at  issue there (the "must carry" rules), it has little to do with a case that involves the effects of television viewing on children. Those  effects are the result of how parents and children view television  programming, and how pervasive and intrusive that programming is.  In  that respect, cable and broadcast television differ little, if at all.  See supra, at 14-15.  Justice Kennedy would have us decide that all  common carriage exclusions are subject to the highest scrutiny, see  post, at 18-21, and then decide the case on the basis of categories that  provide imprecise analogies rather than on the basis of a more  contextual assessment, consistent with our First Amendment tradition, of assessing whether Congress carefully and appropriately addressed a serious problem.


42
The petitioners also rely on this Court's "public forum" cases.  They point to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.  S., at 45, a case in which this Court said that "public forums" are  "places" that the government "has opened for use by the public as a  place for expressive activity," or which "by long tradition . . . have  been devoted to assembly and debate."  Id., at 45.  See also Cornelius  v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S., at 801 (assuming  public forums may include "private property dedicated to public use").   They add that the government cannot "enforce a content-based exclusion" from a public forum unless "necessary to serve a compelling state interest" and "narrowly drawn."  Perry, supra, at 45.  They further  argue that the statute's permissive provisions unjustifiably exclude  material, on the basis of content, from the "public forum" that the  government has created in the form of access channels.  Justice Kennedy  adds by analogy that the decision to exclude certain content from common  carriage is similarly subject to strict scrutiny, and here does not  satisfy that standard of review.  See post, at 18-21.


43
For three reasons, however, it is unnecessary, indeed, unwise,  for us definitively to decide whether or how to apply the public forum  doctrine to leased access channels.  First, while it may be that  content-based exclusions from the right to  use common carriers could  violate the First Amendment, see post, at 18-21 (Kennedy, J.), it is not  at all clear that the public forum doctrine should be imported wholesale  into the area of common carriage regulation.  As discussed above, we are  wary of  the notion that a partial analogy in one context, for which we  have developed doctrines, can compel a full range of decisions in such a  new and changing area.  See supra, at 9-12.  Second, it is plain from  this Court's cases that a public forum "may be created for a limited  purpose."  Perry, supra, at 46, n. 7; see also Cornelius, supra, at 802   ("[T]he government `is not required to indefinitely retain the open  character of the facility'") (quoting Perry, supra, at 46).  Our cases  have not yet determined, however, that the Government's decision to dedicate a public forum to one type of content or another is necessarily  subject to the highest level of scrutiny.  Must a local government, for  example, show a compelling state interest if it builds a band shell in  the park and dedicates it solely to classical music (but not to jazz)?  The answer is not obvious. Cf. Perry, supra, at 46, n. 7.  But, at a  minimum, this case does not require us to answer it.  Finally, and most  important,  the effects of Congress' decision on the interests of  programmers, viewers, cable operators, and children are the same,  whether we characterize Congress' decision as one that limits access to  a public forum, discriminates in common carriage, or constrains speech  because of its content.  If we consider this particular limitation of  indecent television programming acceptable as a constraint on speech, we  must no less accept the limitation it places on access to the claimed  public forum or on use of a common carrier.


44
Consequently, if one wishes to view the permissive provisions before us through a "public forum" lens, one should view those provisions as limiting the otherwise totally open nature of the forum  that leased access channels provide for communication of other than  patently offensive sexual material-taking account of the fact that the  limitation was imposed in light of experience gained from maintaining a  totally open "forum."  One must still ask whether the First Amendment  forbids the limitation.  But unless a label alone were to make a  critical First Amendment difference (and we think here it does not), the  features of this case that we have already discussed-the government's  interest in protecting children, the "permissive" aspect of the statute,  and the nature of the medium-sufficiently justify the "limitation" on the availability of this forum.


45
Finally, petitioners argue that the definition of the materials  subject to the challenged provisions is too vague, thereby granting  cable system operators too broad a program-screening authority.  Cf.  Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498   (1982) (citing Grayned v. Rockford, 408 U. S. 104, 108-109 (1972))  (vague laws may lead to arbitrary enforcement); Dombrowski v. Pfister,  380 U. S. 479, 486-487 (1965) (uncertainty may perniciously chill speech).  That definition, however, uses language similar to language previously used by this Court for roughly similar purposes.


46
The provisions, as augmented by FCC regulations, permit cable system operators to prohibit


47
"programming that the cable operator reasonably believes      describes or depicts sexual or excretory activities or organs      in a  patently offensive manner as measured by contemporary      community  standards."  1992 Act, Section(s) 10(a), 106 Stat.      1486.


48
See also 47 CFR Section(s) 76.702 (1995) (reading approximately  the same definition into Section(s) 10(c)).  This language is similar to  language adopted by this Court in Miller v. California, 413 U. S. 15, 24   (1973) as a "guidelin[e]" for identifying materials that states may  constitutionally regulate as obscene.  In Miller, the Court defined  obscene sexual material (material that lacks First Amendment protection)  in terms of


49
"(a) whether the average person, applying contemporary community  standards would find that the work, taken as a whole, appeals to the  prurient interest . . . ; (b) whether the work depicts or describes, in  a patently offensive way, sexual conduct specifically defined by the  applicable state law; and (c) whether the work, taken as a whole, lacks  serious literary, artistic, political, or scientific value."  Ibid.  (emphasis added; internal quotation marks omitted).


50
The language, while vague, attempts to identify the category of  materials that Justice Stewart thought could be described only in terms  of "I know it when I see it."  Jacobellis v. Ohio, 378 U. S. 184, 197   (1964) (Stewart, J., concurring).  In Section(s) 10(a) and the FCC  regulations, without Miller's qualifiers, the language would seem to  refer to material that would be offensive enough to fall within that  category but for the fact that the material also has "serious literary,  artistic, political or scientific value" or nonprurient purposes.


51
This history suggests that the statute's language aims at the kind of programming to which its sponsors referred-pictures  of oral sex,  bestiality, and rape, see 138 Cong. Rec. S642, S646 (Jan. 30, 1992)  (statement of Sen. Helms)-and not at scientific or educational programs   (at least unless done with a highly unusual lack of concern for viewer  reaction).  Moreover, as this Court pointed out in Pacifica, what is  "patently offensive" depends on context (the kind of program on which it  appears), degree (not "an occasional expletive"), and time of broadcast (a "pig" is offensive in "the parlor" but not the "barnyard"). 438 U.  S., at 748, 750.  Programming at two o'clock in the morning is seen by a  basically adult audience and the "patently offensive" must be defined  with that fact in mind.


52
Further, the statute protects against overly broad application  of its standards insofar as it permits cable system operators to screen  programs only pursuant to a "written and published policy."  1992 Act,  Section(s) 10(a), 106 Stat. 1486. A cable system operator would find it  difficult to show that a leased access program prohibition reflects a  rational "policy" if the operator permits similarly "offensive"  programming to run elsewhere on its system at comparable times or in  comparable ways. We concede that the statute's protection against overly broad application is somewhat diminished by the fact that it permits a  cable operator to ban programming that the operator "reasonably  believes" is patently offensive.  Ibid. (emphasis added). But the  "reasonabl[e] belie[f]" qualifier here, as elsewhere in the law, seems  designed not to expand the category at which the law aims, but, rather,  to provide a legal excuse, for (at least) one honest mistake, from  liability that might otherwise attach.  Cf. Waters v. Churchill, 511 U.  S. ___, ___ (1994) (slip op., at 1) (Souter, J., concurring) (public employer's reasonable belief that employee engaged in unprotected speech  excuses liability); United States v. United States Gypsum Co., 438 U. S.  422, 453-455, and n. 29 (1978) ("`meeting competition'" defense in  antitrust based on reasonable belief in the necessity to meet  competition); Pierson v. Ray, 386 U. S. 547, 555-557 (1967) (police  officer has defense to constitutional claim, as did officers of the  peace at common law in actions for false arrest, when the officer  reasonably believed the statute whose violation precipitated the arrest  was valid).  And the contours of the shield-reasonableness-constrain  the  discretion of the cable operator as much as they protect it.  If, for example, a court had already found substantially similar programming to  be beyond the pale of "patently offensive" material, or if a local  authority overseeing the local public, governmental, or educational  channels had indicated that materials of the type that the cable  operator decides to ban were not "patently offensive" in that community,  then the cable operator would be hard pressed to claim that the  exclusion of the material was "reasonable."  We conclude that the  statute is  not impermissibly vague.


53
For the reasons discussed, we conclude that Section(s) 10(a) is  consistent with the First Amendment.

III.

54
The statute's second provision significantly differs from the first, for it does not simply permit, but rather requires, cable system  operators to restrict speech-by segregating and blocking "patently  offensive" sex-related material appearing on  leased channels (but not on  other channels).  1992 Act, Section(s) 10(b).  In particular, as  previously mentioned, see supra, at 4-5, this provision and its  implementing regulations require cable system operators to place  "patently offensive" leased channel programming on a separate channel;  to block that channel; to unblock the channel within 30 days of a  subscriber's written request for access; and to reblock the channel  within 30 days of a subscriber's request for reblocking.  1992 Act, Section(s) 10(b); 47 CFR Section(s) 76.701(b), (c), (g) (1995). Also,  leased channel programmers must notify cable operators of an intended  "patently offensive" broadcast up to 30 days before its scheduled  broadcast date.  Section(s) 76.701(d), (g).


55
These requirements have obvious restrictive effects.  The several up-to-30-day delays, along with single channel segregation, mean  that a subscriber cannot decide to watch a single program without  considerable advance planning and without letting the "patently  offensive" channel in its entirety invade his household for days,  perhaps weeks, at a time. These restrictions will prevent programmers  from broadcasting to viewers who select programs day by day (or, through  "surfing," minute by minute); to viewers who would like occasionally to watch a few, but not many, of the programs on the "patently offensive"  channel; and to viewers who simply tend to judge a program's value  through channel reputation, i.e., by the company it keeps.  Moreover,  the "written notice" requirement will further restrict viewing by  subscribers who fear for their reputations should the operator,  advertently or inadvertently, disclose the list of those who wish to  watch the "patently offensive" channel.  Cf. Lamont v. Postmaster  General, 381 U. S. 301, 307 (1965) (finding unconstitutional a  requirement that recipients of Communist literature notify the Post  Office that they wish to receive it).  Further, the added costs and  burdens that these requirements impose upon a cable system operator may encourage that operator to ban programming that the operator would otherwise permit to run, even if only late at night.


56
The Government argues that, despite these adverse consequences,  the "segregate and block" requirements are lawful because they are "the  least restrictive means of realizing" a "compelling interest," namely  "protecting the physical and psychological well-being of minors."  See  Brief for Federal Respondents 11 (quoting Sable, 492 U. S., at 126).  It  adds that, in any event, the First Amendment, as applied in Pacifica, "does not require that regulations of indecency on television be subject  to the strictest" First Amendment "standard of review." Ibid.


57
We agree with the Government that protection of children is a  "compelling interest."  See supra, at 10.  But we do not agree that the  "segregate and block" requirements properly accommodate the speech  restrictions they impose and the legitimate objective they seek to  attain.  Nor need we here determine whether, or the extent to which,  Pacifica does, or does not, impose some lesser standard of review where  indecent speech is at issue, compare 438 U. S., at 745-748 (opinion of  Stevens, J.) (indecent materials enjoy lesser First Amendment  protection), with id., at 761-762 (Powell, J., concurring in part and  concurring in judgment) (refusing to accept a lesser standard for  nonobscene,  indecent material).  That is because once one examines this  governmental restriction, it becomes apparent that, not only is it not a "least restrictive alternative," and is not "narrowly tailored" to meet  its legitimate objective, it also seems considerably "more extensive  than necessary."  That is to say, it fails to satisfy this Court's  formulations of the First Amendment's "strictest," as well as its  somewhat less "strict,"  requirements.  See, e.g., Sable, 492 U. S., at  126 ("compelling  interest" and "least restrictive means" requirements  applied to  indecent telephone communications); id., at 131 (requiring  "narrowly tailored" law); Turner, 512 U. S., at ___ (slip op., at 16)  (using "heightened scrutiny" to address content-neutral structural  regulations of cable systems); id., at ___ (slip op., at 38) (quoting  "`no greater than . . . essential'" language from United States v. O'Brien, 391 U. S. 367, 377 (1968), as an  example of "heightened,"  less-than-strictest, First Amendment scrutiny); Central Hudson, 447 U.  S., at 566 (restriction on commercial speech cannot be "more extensive  than is necessary"); Florida Bar v. Went For It, Inc., 515 U. S. ___,  ___ (1995) (slip op., at 5) (restriction must be "narrowly drawn"); id.,  at 14 (there must be a "reasonable" "fit" with the objective that  legitimates speech restriction).  The provision before us does not  reveal the caution and care that the standards underlying these various verbal formulas impose upon laws that seek to reconcile the critically  important interest in protecting free speech with very important, or  even compelling, interests that sometimes warrant restrictions.


58
Several circumstances lead us to this conclusion.  For one thing, the law, as recently amended, uses other means to protect children from similar "patently offensive" material broadcast on unleased cable channels, i.e., broadcast over any of a system's numerous  ordinary, or public access, channels.  The law, as recently amended,  requires cable operators to "scramble or . . . block" such programming  on any (unleased) channel "primarily dedicated to sexually-oriented  programming."  Telecommunications Act of 1996, Section(s) 505, 110 Stat.  136 (emphasis added).  In addition, cable operators must honor a  subscriber's request to block any, or all, programs on any channel to  which he or she does not wish to subscribe. Section(s) 504, ibid.  And manufacturers, in the future, will have to make television sets with a  so-called "V-chip"-a device that will be able automatically to identify  and block sexually explicit or violent programs.  Section(s) 551, id.,  at 139-142.


59
Although we cannot, and do not, decide whether the new provisions are themselves lawful (a matter not before us), we note that  they are significantly less restrictive than the provision here at  issue.  They do not force the viewer to receive (for days or weeks at a  time) all "patently offensive" programming or none; they will not lead  the viewer automatically to judge the few by the reputation of the many;  and they will not automatically place the occasional viewer's name on a  special list.  They therefore inevitably lead us to ask why, if they  adequately protect children from "patently offensive" material broadcast  on ordinary channels, they would not offer adequate protection from  similar leased channel broadcasts as well?  Alternatively, if these provisions do not adequately protect children from "patently offensive"  material broadcast on ordinary channels, how could one justify more  severe leased channel restrictions when (given ordinary channel  programming) they would yield so little additional protection for  children? The record does not answer these questions.  It does not  explain why, under the new Act, blocking alone-without written  access-requests-adequately protects children from exposure to regular  sex-dedicated channels, but cannot adequately protect those children  from programming on similarly sex-dedicated channels that are leased. It does not explain why a simple subscriber blocking request system,  perhaps a phone-call based system, would adequately protect children  from "patently offensive" material broadcast on ordinary  non-sex-dedicated channels (i.e., almost all channels) but a far more  restrictive segregate/block/written-access system is needed to protect  children from similar broadcasts on what (in the absence of the   segregation requirement) would be non-sex-dedicated channels that are  leased.  Nor is there any indication Congress thought the new ordinary  channel protections less than adequate.


60
The answers to the questions are not obvious.  We have no empirical reason to believe, for example, that sex-dedicated channels  are all (or mostly) leased channels, or that "patently offensive"  programming on non-sex-dedicated channels is found only (or mostly) on  leased channels. To the contrary, the parties' briefs (and major city  television guides) provide examples of what seems likely to be such  programming broadcast over both kinds of channels.


61
We recognize, as the Solicitor General properly points out, that  Congress need not deal with every problem at once. Cf. Semler v. Oregon  Bd. of Dental Examiners, 294 U. S. 608, 610 (1935) (the legislature need  not "strike at all evils at the same time"); and Congress also must have  a degree of leeway in tailoring means to ends.  Columbia Broadcasting,  412 U. S., at 102-103.  But in light of the 1996 statute, it seems fair  to say that Congress now has tried to deal with most of the problem.  At this point, we can take Congress' different, and significantly less  restrictive, treatment of a highly similar problem at least as some  indication that more restrictive means are not "essential" (or will not  prove very helpful).  Cf. Boos v. Barry, 485 U. S. 312, 329 (1988)  (existence of a less restrictive statute suggested that a challenged  ordinance, aimed at the same problem, was overly restrictive).


62
The record's description and discussion of a different alternative-the "lockbox"-leads, through a different route, to a similar  conclusion. The Cable Communications Policy Act of 1984 required cable  operators to provide


63
"upon the request of a subscriber, a device by which the      subscriber can prohibit viewing of a particular cable service      during  periods selected by the subscriber."  47  U. S. C.      Section(s) 544(d)(2).


64
This device-the "lockbox"-would help protect children by permitting their parents to "lock out" those programs or channels that  they did not want their children to see.  See FCC 85-179, Para(s) 132,  50 Fed. Reg. 18637, 18655 (1985) ("[T]he provision for lockboxes largely  disposes of issues involving the Commission's standard for indecency").   The FCC, in upholding the "segregate and block" provisions said that  lockboxes protected children (including, say, children with inattentive  parents) less effectively than those provisions.  See First Report and  Order Para(s) 14-15, 8 FCC Rcd, at 1000.  But it is important to understand why that is so.


65
The Government sets forth the reasons as follows:


66
"In the case of lockboxes, parents would have to discover      that  such devices exist; find out that their cable      operators offer them for  sale; spend the time and money to      buy one; learn how to program the  lockbox to block undesired      programs; and, finally, exercise sufficient  vigilance to      ensure that they have, indeed, locked out whatever indecent      programming they do not wish their children to view."  Brief      for Federal  Respondents 37.


67
We assume the accuracy of this statement.  But, the reasons do  not show need for a provision as restrictive as the one before us.  Rather, they suggest  a set of provisions very much like those that  Congress placed in the 1996 Act.


68
No provision, we concede, short of an absolute ban, can offer certain protection against assault by a determined child.  We have not,  however, generally allowed this fact alone to justify "`"reduc[ing] the  adult population . . . to . . . only what is fit for children."'"   Sable, 492 U. S., at 128 (quoting Bolger v. Youngs Drug Products Corp.,  463 U. S. 60, 73 (1983), in turn quoting Butler v. Michigan, 352 U. S.  380, 383 (1957));  see Sable, supra, at 130, and n. 10.  But, leaving  that problem aside, the Solicitor General's list of practical  difficulties would seem to call, not for "segregate and block"  requirements, but, rather, for informational requirements, for a simple  coding system, for readily available blocking equipment (perhaps accessible by telephone), for imposing cost burdens upon system operators (who may spread them through subscription fees); or perhaps  even for a system that requires lockbox defaults to be set to block  certain channels (say, sex-dedicated-channels). These kinds of  requirements resemble those that Congress has recently imposed upon all  but leased channels.  For that reason, the "lockbox" description and the  discussion of its frailties reinforces our conclusion that the leased  channel provision is overly restrictive when measured against the  benefits it is likely to achieve.  (We add that the record's discussion  of the "lockbox" does not explain why the law now treats leased channels more restrictively than ordinary channels.)


69
There may, of course, be other explanations.  Congress may simply not have bothered to change the leased channel provisions when it  introduced a new system for other channels.  But responses of this sort,  like guesses about the comparative seriousness of the problem, are not  legally adequate.  In other cases, where, as here, the record before  Congress or before an agency provides no convincing explanation, this  Court has not been willing to stretch the limits of the plausible, to  create hypothetical nonobvious explanations in order to justify laws that impose significant restrictions upon speech. See, e.g., Sable,  supra, at 130 ("[T]he congressional record presented to us contains no  evidence as to how effective or ineffective the FCC's most recent  regulations were or might prove to be"); Simon & Schuster, 502 U. S., at  120; Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460  U. S. 575, 585-586 (1983); Arkansas Writers' Project, Inc. v. Ragland,  481 U. S. 221, 231-232 (1987).


70
Consequently, we cannot find that the "segregate and block" restrictions on speech are a narrowly, or reasonably, tailored effort to  protect children.  Rather, they are overly restrictive, "sacrific[ing]"  important First Amendment interests for too "speculative a gain."  Columbia Broadcasting, 412 U. S.,  at 127; see League of Women Voters,  468 U. S., at 397.  For that reason they are not consistent with the  First Amendment.

IV.

71
The statute's third provision, as implemented by FCC regulation,  is similar to its first provision, in that it too permits a cable  operator to prevent transmission of "patently offensive" programming, in  this case on public access channels. 1992 Act, Section(s) 10(c); 47 CFR  Section(s) 76.702 (1995).  But there are four important differences.


72
The first is the historical background.  As Justice Kennedy points out, see post, at 9-12, cable operators have traditionally agreed  to reserve channel capacity for public, governmental, and educational  channels as part of the consideration they give municipalities that  award them cable franchises.  See H. R. Rep. No. 98-934, at 30.  In the  terms preferred by Justice Thomas, see post, at 17-18, the requirement  to reserve capacity for public access channels is similar to the  reservation of a public easement, or a dedication of land for streets  and parks, as part of a municipality's approval of a subdivision of  land.  Cf. post, at 15-16 (Kennedy, J.).  Significantly, these are  channels over which cable operators have not historically exercised  editorial control.  H. R. Rep. No. 98-934, supra, at 30.  Unlike  Section(s) 10(a) therefore, Section(s) 10(c) does not restore to  cable operators editorial rights that they once had, and the countervailing  First Amendment interest is nonexistent, or at least much diminished.  See also post, at 13-15 (Kennedy, J.).


73
The second difference is the institutional background that has  developed as a result of the historical difference.  When a "leased  channel" is made available by the operator to a private lessee, the  lessee has total control of programming during the leased time slot. See  47 U. S. C. Section(s) 532(c)(2).  Public access channels, on the other  hand, are normally subject to complex supervisory systems of various  sorts, often with both public and private elements.  See Section(s)  531(b) (franchising authorities "may require rules and procedures for  the use of the [public access] channel capacity").  Municipalities  generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may  also be the municipality, or, in some instances, the cable system owner.  See D. Brenner, M. Price, & M. Myerson, Cable Television and Other  Nonbroadcast Video Para(s) 6.04[7] (1993); P. Aufderheide, Public Access  Cable Programming, Controversial Speech, and Free Expression (1992)  (hereinafter Aufderheide), reprinted in App. 61, 63 (surveying 61  communities; the access manager was: a nonprofit organization in  41, a  local government official in 12, the cable operator in 5,  and an  unidentified entity in 3); D. Agosta, C. Rogoff, & A. Norman, The  Participate Report: A Case Study of Public Access Cable Television in  New York State 28 (1990), attached as Exh. K to Joint Comments for the Alliance for Community Media et al., filed with the FCC under MM Docket  No. 92-258 (materials so filed hereinafter FCC Record) ("In 88% [of New  York public access systems] access channels were programmed jointly  between  the cable operator and another institution such as a university,  library, or non-profit access organization"); Agosta, at 28-32, FCC  Record; Comments of National Cable Television Association Inc., at 14,  FCC Record ("Operators often have no involvement in PEG channels that  are run by local access organizations").  Access channel activity and management are partly financed with  public funds-through franchise fees  or other payments pursuant to the franchise agreement, or from general  municipal funds, see Brenner, Para(s) 6.04[3][c]; Aufderheide, App.  59-60-and are commonly subject to supervision by a local supervisory  board.  See, e.g., D. C. Code Ann. Section(s) 43-1829 (1990 and Supp.  1996); Lynchburg City Code Section(s) 12.1-44(d)(2) (1988).


74
This system of public, private, and mixed nonprofit elements, through its supervising boards and nonprofit or governmental access  managers, can set programming policy and approve or disapprove  particular programming services.  And this system can police that policy  by, for example, requiring indemnification by programmers, certification  of compliance with local standards, time segregation, adult content  advisories, or  even by prescreening individual programs.  See Second  Report and Order, 8 FCC Rcd, Para(s) 26 ("[F]rom the comments received,  it  appears that a number of access organizations already have in place procedures that require certification statements [of compliance with  local standards], or their equivalent, from access programmers");  Comments of the Boston Community Access and Programming Foundation, App.  163-164; Aufderheide, App. 69-71; Comments of Metropolitan Area  Communications Commission, at  2, FCC Record; Reply Comments of Waycross  Community Television,  at 4-6, FCC Record; Reply Comments of Columbus  Community Cable Access, Inc., App. 329; Reply Comments of the City of  St. Paul, App. 318, 325; Reply Comments of Erik Mollberg, Public Access Coordinator, Ft. Wayne, Ind., at 3, FCC Record; Comments of Defiance  Community Television, at 3, FCC Record; Comments of Nutmeg Public Access  Television, Inc., at 3-4, FCC Record. Whether these locally accountable  bodies prescreen programming, promulgate rules for the use of public  access channels, or are merely available to respond when problems arise,  the upshot is the same: there is a locally accountable body capable of addressing the problem, should it arise, of patently offensive programming broadcast to children, making it unlikely that many children  will in fact be exposed to programming considered patently offensive in  that community.  See 56 F. 3d, at 127-128; Second Report and Order,  supra, Para(s) 26.


75
Third, the existence of a system aimed at encouraging and securing programming that the community considers valuable strongly  suggests that a "cable operator's veto" is less likely necessary to  achieve the statute's basic objective, protecting children, than a  similar veto in the context of leased channels. Of course, the system  of access managers and supervising boards can make mistakes, which the  operator might in some cases correct with its veto power.  Balanced  against this potential benefit, however, is the risk that the veto  itself may be mistaken; and its use, or threatened use, could prevent  the presentation of programming, that, though borderline, is not  "patently offensive" to its targeted audience.  See Aufderheide,  App.  64-66 (describing the programs that were considered borderline by access managers, including sex education, health education, broadcasts of politically marginal groups, and various artistic experiments). And  this latter threat must bulk large within a system that already has  publicly accountable systems for maintaining responsible programs.


76
Finally, our examination of the legislative history and the record before us is consistent with what common sense suggests, namely  that the public/nonprofit programming control systems now in place would  normally avoid, minimize, or eliminate any child-related problems  concerning "patently offensive" programming.  We have found anecdotal  references to what seem isolated instances of potentially indecent  programming, some of which may well have occurred on leased, not public  access channels. See 138 Cong. Rec. S642, S650 (Jan. 30, 1992) (statement of Sen. Wirth) (mentioning "abuses" on Time Warner's New York  City channel); but see Comments of Manhattan Neighborhood Network, App.  235, 238 (New York access manager noting that leased, not public access  channels, regularly carry sexually explicit programming in New York, and  that no commercial programs or advertising are allowed on public access  channels); Brief for Time Warner Cable as Amicus Curiae 2-3 (indicating  that relevant "abuses" likely occurred on leased channels).  See also  138 Cong. Rec., at S649 (Jan. 30, 1992) (statement of Sen. Fowler) (describing solicitation of prostitution); id., at S646 (statement of  Sen. Helms) (identifying newspaper headline referring to mayor's protest  of a "strip act"); 56 F. 3d, at 117-118 (recounting comments submitted  to the FCC describing three complaints of offensive programming); Letter  from Mayor of Rancho Palos Verdes, FCC Record; Resolution of San Antonio  City Council, No. 92-49-40, FCC Record.


77
But these few examples do not necessarily indicate a significant  nationwide pattern.  See 56 F. 3d, at 127-128 (public access channels  "did not pose dangers on the order of magnitude of those identified on  leased access channels," and "local franchising authorities could  respond" to such problems "by issuing `rules and procedures' or other  `requirements'").  The Commission itself did not report any examples of  "indecent" programs on public access channels.  See Second Report and  Order, 8 FCC Rcd 2638 (1993); see also Comments of Boston Community Access and Programming Foundation, App. 162-163 (noting that the FCC's  Notice of Proposed Rulemaking, 7 FCC Rcd  7709 (1992) did not identify  any "inappropriate" programming that actually exists on public access  channels).  Moreover, comments submitted to the FCC undermine any  suggestion that prior to 1992 there were significant problems of  indecent programming on public access channels.  See Agosta, at 10, 28,  FCC Record (surveying 76 public access systems in New York over two  years, and finding "only two examples of controversial programming, and  both had been settled by the producers and the  access channel"); Reply  Comments of Staten Island Community Television, at 2, FCC Record ("Our  access channels have been on  the air since 1986 without a single incident which would be covered by Section 10 of the new law"); Reply  Comments of Waycross Community Television, at 2, FCC Record ("[I]ndecent  and obscene programs . . . [have] never been cablecast through Waycross  Community Television during our entire ten year programming history");  Reply Comments of Cambridge Community Television, App. 314 ("In  Cambridge less than one hour out of 15,000 hours of programming CCTV has  run in the past five year[s] may have been affected by the Act"); ibid.  ("CCTV feels that there simply is not a problem which needs to be  fixed"); Reply Comments of Columbus Community Cable Access, Inc., App.  329 ("ACTV is unaware of any actions taken by the cable operators under   [a local law authorizing them to prohibit "legally obscene matter"]  within the last 10 years"); Reply Comments of Cincinnati Community  Video, Inc., App., at 316 ("[I]n 10 years of access operations with over  30,000 access programs cablecast  not a single obscenity violation has  ever occurred"); Comments of Defiance Community Television, at 2-3, FCC  Record (in eight years of operation, "there has never been a serious  problem with the content of programming on the channel").


78
At most, we have found borderline examples as to which people's  judgment may differ, perhaps acceptable in some communities but not  others, of the type that petitioners fear the law might prohibit. See,  e.g., Aufderheide, App. 64-66; Brief for Petitioners in No. 95-124, p. 7   (describing depiction of a self-help gynecological examination);  Comments of Time Warner Entertainment Co., App. 252 (describing an  Austin, Tex.,  program from that included "nude scenes from a movie," and  an Indianapolis, Ind., "safe sex" program).  It is difficult to see how  such borderline examples could show a compelling need, nationally, to  protect children from significantly harmful materials.  Compare 138  Cong. Rec., at S646 (Jan. 30, 1992) (statement of Sen. Helms)  (justifying regulation of leased access channels in terms of programming  that depicts "bestiality" and "rape").  In the absence of a factual  basis substantiating the harm and the efficacy of its proposed cure, we  cannot assume that the harm exists or that the regulation redresses it.  See Turner, 512 U. S. ___, ___ (slip op. at 40-41).


79
The upshot, in respect to the public access channels, is a law  that could radically change present programming-related relationships  among local community and nonprofit supervising boards and access  managers, which relationships are established through municipal law,  regulation, and contract.  In doing so, it would not significantly  restore editorial rights of cable operators, but would greatly increase  the risk that certain categories of programming (say, borderline  offensive programs) will not appear.  At the same time, given present  supervisory mechanisms, the need for this particular provision, aimed directly at public access channels, is not obvious.  Having carefully  reviewed the legislative history of the Act, the proceedings before the  FCC, the record below, and the submissions of the parties and amici  here, we conclude that the  Government cannot sustain its burden of  showing that Section(s)  10(c) is necessary to protect children or that  it is appropriately tailored to secure that end.  See, e.g., Columbia   Broadcasting, 412 U. S., at 127; League of Women Voters, 468 U. S., at  398-399; Sable, 492 U. S., at 126.  Consequently, we find that this  third provision violates the First Amendment.

V.

80
Finally, we must ask whether Section(s) 10(a) is severable from  the two other provisions.  The question is one of legislative intent:  Would Congress still "have passed" Section(s) 10(a) "had it known" that  the remaining "provision[s  were] invalid"?  Brockett v. Spokane Arcades,  Inc., 472 U. S. 491, 506 (1985).  If so, we need not invalidate all  three provisions.  New York v. Ferber, 458 U. S., at 769, n. 24 (citing  United States v. Thirty-seven Photographs, 402 U. S. 363 (1971)).


81
Although the 1992 Act contains no express "severability clause,"  we can find the Act's "severability" intention in its structure and  purpose.  It seems fairly obvious Congress would have intended its  permissive "leased access" channels provision, Section(s) 10(a), to  stand irrespective of Section(s) 10(c)'s legal fate.  That is because  the latter provision concerns only public, educational, and governmental  channels.  Its presence had little, if any, effect upon "leased access"  channels; hence  its absence in respect to those channels could not make  a significant difference.


82
The "segregate and block" requirement's invalidity does make a  difference, however, to the effectiveness of the permissive "leased  access" provision, Section(s) 10(a).  Together they told the cable  system operator: "either ban a `patently offensive' program or  `segregate and block' it."  Without the "segregate and block" provision,  cable operators are afforded broad discretion over what to do with a  patently offensive program, and because they will no longer bear the  costs of segregation and blocking if they refuse to ban such programs,  cable operators may choose to ban fewer programs.


83
Nonetheless, this difference does not make the two provisions unseverable.  Without the "segregate and block" provision, the law simply treats leased channels (in respect to  patently offensive programming) just as it treats all other channels.  And judging by the  absence of similar segregate-and-block provisions in the context of  these other channels, Congress would probably have thought that  Section(s) 10(a), standing alone, was an effective (though, perhaps, not  the most  effective) means of pursuing its objective.  Moreover, we can  find no reason why, in light of Congress' basic objective (the  protection of children), Congress would have preferred no provisions at  all to the permissive provision standing by itself.  That provision,  capable of functioning on its own, still helps to achieve that basic  objective. Consequently, we believe the valid provision is severable  from the others.

VI.

84
For these reasons, the judgment of the Court of Appeals is affirmed insofar as it upheld Section(s) 10(a); the judgment of the  Court of Appeals is reversed insofar as it upheld Section(s) 10(b) and


85

It is so ordered.



86
Justice Stevens, concurring.


87
The difference between Section(s) 10(a) and Section(s) 10(c) is  the difference between a permit and a prohibition.  The former restores  the freedom of cable operators to reject indecent programs; the latter  requires local franchising authorities to reject such programs.  While I  join the Court's opinion, I add these comments to emphasize the  difference between the two provisions and to endorse the analysis in  Part III-B of Justice Kennedy's opinion even though I do not think it  necessary to characterize the public access channels as public fora.  Like Justice Souter, I am convinced that it would be unwise to take a categorical approach to the resolution of novel First Amendment questions arising in an industry as dynamic as this.  Cf. R. A. V. v.  St. Paul, 505 U. S. 377, 426-427 (1992) (Stevens, J., concurring in  judgment).

I.

88
Federal law requires cable system operators to reserve about 15  percent of their channels for commercial lease to unaffiliated programmers.  See 47 U. S.C. Section(s) 532(b).  On these channels,  federal law generally prohibits the cable operator from exercising any  control over program content, see 47 U. S. C. 532(c)(2), with one  exception: Section 10(a) allows  the operator to refuse to air "indecent"  programs.  In my view,  that exception is permissible.


89
The Federal Government established the leased access requirements to ensure that certain programmers would have more channels  available to them.  Section 10(a) is therefore best understood as a  limitation on the amount of speech that the Federal Government has  spared from the censorial control of the cable operator, rather than a  direct prohibition against the communication of speech that, in the  absence of federal intervention, would flow freely.


90
I do not agree, however, that Section(s) 10(a) established a public forum. Unlike sidewalks and parks, the Federal Government created  leased access channels in the course of its legitimate regulation of the  communications industry.  In so doing, it did not establish an entirely  open forum, but rather restricted access to certain speakers, namely  unaffiliated programmers able to lease the air time.  By facilitating  certain speech that cable operators would not otherwise carry, the  leased access channels operate like the must-carry rules that we  considered in Turner Broadcasting System,. Inc. v. FCC, 512 U. S. __, __   (1994) (slip op., at 19-21), without reference to our public forum  precedents.


91
When the Federal Government opens cable channels that would otherwise be left entirely in private hands, it deserves more deference  than a rigid application of the public forum doctrine would allow.  At  this early stage in the regulation of this developing industry, Congress  should not be put to an all or nothing-at-all choice in deciding whether  to open certain cable channels to programmers who would otherwise lack  the resources to participate in the marketplace of ideas.


92
Just as Congress may legitimately limit access to these channels  to unaffiliated programmers, I believe it may also limit, within certain  reasonable bounds, the extent of the access that it confers upon those  programmers.1  If the Government had a reasonable basis for  concluding that there were already enough classical musical programs or  cartoons being telecast-or, perhaps, even enough political debate-I  would find  no First Amendment objection to an open access requirement  that  was extended on an impartial basis to all but those particular subjects.  A contrary conclusion would ill-serve First Amendment values  by dissuading the Government from creating access rights altogether.2


93
Of course, the fact that the Federal Government may be entitled  to some deference in regulating access for cable programmers does not  mean that it may evade First Amendment constraints by selectively  choosing which speech should be excepted from private control.  If the  Government spared all speech but that communicated by Republicans from  the control of the cable operator, for example, the First Amendment  violation would be plain.  See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U. S. 788, 806 (1985). More subtle viewpoint-based limitations on access also may be prohibited by the  First Amendment.  See Southeastern Promotions, Ltd. v. Conrad, 420 U. S.  546, 564 (1975) (Douglas, J., dissenting in part and concurring in  result in part).


94
Even though it is often difficult to determine whether a given  access restriction impermissibly singles out certain ideas for  repression, in this case I find no basis for concluding that Section(s)  10(a) is a species of viewpoint discrimination.  By returning control  over indecent programming to the cable operator, Section(s) 10(a) treats  indecent programming on access channels no differently from indecent  programming on regular channels.  The decision to permit the operator to  determine whether to show indecent programming on access channels  therefore cannot be said to reflect a Governmental bias against the indecent programming that appears on access channels in particular.


95
Nor can it be argued that indecent programming has no outlet other than leased access channels, and thus that the exclusion of such  speech from special protection is designed to prohibit its communication  altogether.  Petitioners impliedly concede this point when they contend  that the indecency restrictions are arbitrarily underinclusive because  they do not affect the similarly indecent programming that appears on  regular channels.Moreover, the criteria Section 10(a) identifies for limiting access are fully consistent with the Government's contention  that the speech restrictions are not designed to suppress "a certain  form of expression that the Government dislikes," ante, at 24 (Kennedy,  J., concurring in part and dissenting in part), but rather to protect  children from sexually explicit programming on a pervasive medium.  In  other cases, we have concluded that such a justification is both viewpoint-neutral and legitimate.  Sable Communications of Cal., Inc. v.  FCC, 492 U. S. 115 (1989); FCC v. Pacifica Foundation, 438 U. S. 726   (1978).  There is no reason to conclude otherwise here.


96
Finally,  Section(s) 10(a) cannot be assailed on the somewhat broader ground that it nevertheless reduces the programming available to  the adult population to what is suitable for children.  Butler v.  Michigan, 352 U. S. 380, 383 (1957); ante, at 29 (Kennedy, J.,  concurring in part and dissenting in part). Section 10(a) serves only  to ensure that the newly created access right will not require operators  to expose children to more unsuitable communications than would  otherwise be the case.  It is thus far different in both purpose  and  effect from the provision at issue in Butler, which criminalized the  sale of certain books.  Butler v. Michigan, 352 U. S., at 381.


97
In sum, Section(s) 10(a) constitutes a reasonable, viewpoint neutral limitation on a federally-created access right for certain cable  programmers. Accordingly, I would affirm the judgment of the Court of  Appeals as to this provision.

II.

98
As both Justice Breyer and Justice Kennedy have explained, the  public, educational and governmental access channels that are regulated  owe their existence to contracts forged between cable operators and  local cable franchising authorities.  Ante,  at 3, 30-32 (opinion of  Breyer, J.); ante, at 9, 11, 13-15 (Kennedy, J., concurring in part and  dissenting in part).


99
As their name reflects, so-called PEG channels are subject to a  variety of local governmental controls and regulations that-apart from  any federal requirement-may result either in a prohibition or a  requirement that certain types of programs be carried.  Ante, at 31-33   (opinion of Breyer, J.).  Presumably, as Justice Breyer explains, the  local authorities seldom permit programming of the type described by


100
What is of critical importance to me, however, is that if left  to their own devices, those authorities may choose to carry some  programming that the Federal Government has decided to restrict.  As I  governments from making that choice. It would inject federally  authorized private censors into forums from which they might otherwise  be excluded, and it would therefore limit local forums that might  otherwise be open to all constitutionally protected speech.3


101
Section 10(c) operates as a direct restriction on speech that, in the absence of federal intervention, might flow freely. The Federal  Government is therefore not entitled to the same leeway that I believe  it deserves when it enacts provisions such as Section(s) 10(a), which  define the limits of federally created access rights.  See supra, at  2-3.  The Federal Government has no more entitlement to restrict the  power of a local authority to disseminate materials on channels of its  own  creation, then it has to restrict the power of cable operators to do  so on channels that they own.  In this respect, I agree entirely with  Justice Kennedy, save for his designation of these channels as public fora.


102
That is not to say that the Federal Government may not impose restrictions on the dissemination of indecent materials on cable television.  Although indecent speech is protected by the First  Amendment, the Government may have a compelling interest in protecting  children from indecent speech on such a pervasive medium.  Sable  Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); FCC v.  Pacifica Foundation, 438 U. S. 726 (1978).  When the Government acts to  suppress directly the dissemination of such speech, however, it may not  rely solely on speculation and conjecture.  See Sable Communications of  Cal., Inc. v. FCC, 492 U. S., at 129-131.


103
Justice Breyer persuasively demonstrates that the Government has  made no effort to identify the harm caused by permitting local  franchising authorities to determine the quantum of so-called "indecent"  speech that may be aired in their communities.  Ante, at  33-37.  Nor  has the Government attempted to determine  whether the intervention of  the discretionary censorial authority of a private cable operator  constitutes an appropriately limited means of addressing that harm.  Ibid. Given the direct nature of the restriction on speech that  of justification. Accordingly, I agree that the judgment of the Court of  Appeals with respect to Section(s) 10(c) should be reversed.


104
Justice Souter, concurring.


105
Justice Kennedy's separate opinion stresses the worthy point that First Amendment values generally are well-served by categorizing  speech protection according to the respective characters of the  expression, its context, and the restriction at issue.  Reviewing speech  regulations under fairly strict categorical rules keeps the starch in  the standards for those moments when the daily politics cries loudest  for limiting what may be said.4  Justice Kennedy sees no warrant in  this case for anything but a categorical and rule-based approach  applying a fixed level of scrutiny, the strictest, to judge the content-based provisions of Section(s) 10(a), (b), and (c), and he accordingly faults the plurality opinion for declining to decide the  precise doctrinal categories that should govern the issue at hand.  The  value of the categorical approach generally to First Amendment security  prompts a word to explain why I join the Court's unwillingness to  announce a definitive categorical analysis in this case.


106
Neither the speech nor the limitation at issue here may be categorized simply by content.  Our prior case most nearly on point  dealt not with a flat restriction covering a separate category of  indecency at the First Amendment's periphery, but with less than a total  ban, directed to instances of indecent speech easily available to  children through broadcasts readily received in the household and  difficult or impossible to control without immediate supervision.  See  FCC v. Pacifica Foundation, 438 U. S. 726, 747 (1978) (plurality  opinion) ("It is a characteristic of speech such as this that both its  capacity to offend and its `social value' . . . vary with the circumstances").5  It is not surprising that so contextually complex  a category was not expressly assigned a standard level of scrutiny for  reviewing the Government's limitation at issue there.6


107
Nor does the fact that we deal in this case with cable transmission necessarily suggest that a simple category subject to a  standard level of scrutiny ought to be recognized at this point; while  we have found cable television different from broadcast with respect to  the factors justifying intrusive access requirements under the rule in  Red Lion, see Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___,  ___ (1994) (slip op., at 12-13) (finding that Red Lion's spectrum  scarcity  rationale had no application to cable), today's plurality  opinion rightly observes that the characteristics of broadcast radio  that rendered indecency particularly threatening in Pacifica, that is, its intrusion into the house and accessibility to children, are also  present in the case of cable television, ante, at 14.  It would seem,  then, that the appropriate category for cable indecency should be as  contextually detailed as the Pacifica example, and settling upon  a  definitive level-of-scrutiny rule of review for so complex a category  would require a subtle judgment; but there is even more to be  considered, enough more to demand a subtlety tantamount to prescience.


108
All of the relevant characteristics of cable are presently in a  state of technological and regulatory flux.  Recent and far-reaching  legislation not only affects the technical feasibility of parental  control over children's access to undesirable material, see, e.g.,  Telecommunications Act of 1996, Section(s) 551, Pub. L. 104-104, 110  Stat. 139-142 (Feb. 8, 1996) (provision for "V-chip" to block sexually  explicit or violent programs), but portends fundamental changes in the  competitive structure of the industry and, therefore, the ability of individual entities to act as bottlenecks to the free flow of information, see id., Title III, 110 Stat. 114-128 (promoting competition in cable services). As cable and telephone companies begin  their competition for control over the single wire that will carry both  their services, we can hardly settle rules for review of regulation on  the assumption that cable will remain a separable and useful category of  First Amendment scrutiny.  And as broadcast, cable, and the  cyber-technology of the Internet and the World Wide Web approach the day  of using a common receiver, we can hardly assume that standards for  judging the regulation of one of them will not have immense, but now  unknown and unknowable, effects on the others.7


109
Accordingly, in charting a course that will permit reasonable regulation in light of the values in competition, we  have to accept the  likelihood that the media of communication will become less categorical  and more protean.  Because we cannot be confident that for purposes of  judging speech restrictions it will continue to make sense to  distinguish cable from other technologies, and because we know that  changes in these regulated technologies will enormously alter the  structure of regulation itself, we should be shy about saying the final  word today about what will be accepted as reasonable tomorrow.  In my  own ignorance I have to accept the real possibility that "if we had to decide today . . . just what the First Amendment should mean in cyberspace, . . . we would get it fundamentally wrong." Lessig, The Path  of Cyberlaw, 104 Yale L. J. 1743, 1745  (1995).


110
The upshot of appreciating the fluidity of the subject that Congress must regulate is simply to accept the fact that not every nuance of our old standards will necessarily do for the new technology,  and that a proper choice among existing doctrinal categories is not  obvious. Rather than definitively settling the issue now, Justice Breyer  wisely reasons by direct  analogy rather than by rule, concluding that  the speech and the restriction at issue in this case may usefully be  measured against the ones at issue in Pacifica.8  If that means it  will take some time before reaching a final method of review for cases like this one, there may be consolation in recalling that 16 years passed, from Roth v. United States, 354 U. S. 476 (1957),  to Miller v.  California, 413 U. S. 15 (1973), before the modern obscenity rule  jelled; that it took over 40 years, from Hague v. CIO, 307 U. S. 496   (1939), to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37   (1983), for the public forum category to settle out; and that a round  half-century passed before the clear and present danger of Schenck v.  United States, 249 U. S. 47 (1919), evolved into the modern incitement  rule of Brandenburg v. Ohio, 395 U. S. 444 (1969).


111
I cannot guess how much time will go by until the technologies  of communication before us today have matured and their relationships  become known.  But until a category of indecency can be defined both  with reference to the new technology and with a prospect of durability,  the job of the courts will be just what Justice Breyer does today:  recognizing established First Amendment interests through a close  analysis that constrains the Congress, without wholly incapacitating it  in all matters of the significance apparent here, maintaining the high  value of open communication, measuring the costs of regulation by exact  attention to fact, and compiling a pedigree of experience with the  changing subject.  These are familiar judicial responsibilities in times  when we know too little to risk the finality of precision, and attention  to them will probably take us through the communications revolution.  Maybe the judicial obligation to shoulder these responsibilities can  itself be captured by a much older rule, familiar to every doctor of medicine: "First, do no harm."


112
Justice O'Connor, concurring in part and dissenting in part.


113
I agree that Section(s) 10(a) is constitutional and that Section(s) 10(b) is unconstitutional, and I join Parts I, II, III, and  V, and the judgment in part.  I am not persuaded, however, that the  asserted "important differences" between Section(s) 10(a) and 10(c),  ante, at 30, are sufficient to justify striking down Section(s) 10(c).  I find the features shared by Section(s) 10(a), which covers leased  access channels, and Section(s) 10(c), which covers public access  channels, to be more significant than the differences.  For that reason,  I would find that Section(s) 10(c) too withstands constitutional  scrutiny.


114
Both Section(s) 10(a) and 10(c) serve an important governmental  interest: the well-established compelling interest of protecting  children from exposure to indecent material.  See Sable Communications  of Cal. Inc. v. FCC, 492 U. S. 115, 126 (1989);  Ginsberg v. New York,  390 U. S. 629, 639-640 (1968). Cable television, like broadcast  television, is a medium that is uniquely accessible to children, see  ante, at 13-14, and of course, children have equally easy access to  public access channels as to leased access channels.  By permitting a  cable operator to prevent transmission of patently offensive sex-related programming, Section(s) 10(a) and 10(c) further the interest of protecting children.


115
Furthermore, both provisions are permissive.  Neither presents  an outright ban on a category of speech, such as we struck down in Sable  Communications of Cal. Inc. v. FCC, supra. Sections 10(a) and 10(c)  leave to the cable operator the decision whether or not to broadcast  indecent programming, and, therefore, are less restrictive than an  absolute governmental ban. Certainly Section(s) 10(c) is not more  restrictive than Section(s) 10(a) in this regard.


116
It is also significant that neither Section(s) 10(a) nor restriction we upheld in FCC v. Pacifica Foundation, 438 U. S. 726 (1978).  I agree with Justice Breyer that we should not yet undertake  fully to adapt our First Amendment doctrine to the new context we  confront here.  Because we refrain from doing so, the precedent  established by Pacifica offers an important guide. Section 10(c), no  less than Section(s) 10(a), is within the range of acceptability set by  Pacifica.  See ante, at 13-16.


117
The distinctions upon which the Court relies in deciding that my view, constitutionally significant.  Much emphasis is placed on the  differences in the origins of leased access and public access channels.  To be sure, the leased access channels covered by Section(s) 10(a) were  a product of the Federal Government, while the public access channels at  by municipalities, see ante at 30-31, but I am not persuaded that the  difference in the origin of the access channels is sufficient to justify  upholding Section(s) 10(a) and striking down Section(s) 10(c).  The interest in protecting children remains the same, whether on a leased  access channel or a public access channel, and allowing the cable  operator the option of prohibiting the transmission of indecent speech  seems a constitutionally permissible means of addressing that interest.   Nor is the fact that public access programming may be subject to  supervisory systems in addition to the cable operator, see ante,  at  31-33, sufficient in my mind to render Section(s) 10(c) so ill-tailored  to its goal as to be unconstitutional.Given the compelling interest  precedent, I would hold Section(s) 10(c), like Section(s) 10(a),  constitutional.


118
Justice Kennedy, with whom Justice Ginsburg joins, concurring in  part, concurring in the judgment in part, and dissenting in part.


119
The plurality opinion, insofar as it upholds Section(s) 10(a) of  the 1992 Cable Act, is adrift.  The opinion treats concepts such as  public forum, broadcaster, and common carrier as mere labels rather than  as categories with settled legal significance; it applies no standard,  and by this omission loses sight of existing First Amendment doctrine.  When confronted with a threat to free speech in the context of an  emerging technology, we ought to have the discipline to analyze the case   by reference to existing elaborations of constant First Amendment  principles. This is the essence of the case-by-case approach to ensuring protection of speech under the First Amendment, even in novel  settings.  Rather than undertake this task, however, the plurality just  declares that, all things considered, Section(s) 10(a) seems fine.  I  think the implications of our past cases for this one are clearer than  the plurality suggests, and they require us to hold Section(s) 10(a)  invalid.  Though I join Part III of the opinion (there for the Court)  striking down Section(s) 10(b) of the Act, and concur in the judgment  the remainder.

I.

120
Two provisions of the 1992 Act, Section(s) 10(a) and (c), authorize the operator of a cable system to exclude certain programming  from two different kinds of channels.  Section 10(a) concerns leased  access channels.  These are channels the cable operator is required by  federal law to make available to unaffiliated programmers without  exercising any control over program content.  The statute allows a cable  operator to enforce a written and published policy of prohibiting on  these channels any programming it "reasonably believes describes or  depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards," speech we can  refer to as "indecent programming." Section 10(c) involves public,  educational, and governmental access channels (or PEG access channels,  as they are known).  These are channels set aside for use by members of  the public, governmental authorities, and local school systems.  As  interpreted by the Federal Communications Commission (FCC), Section(s)  to prohibit  indecent programming on PEG access channels.  See ante, at  3-5 (quoting statutory provisions in full and discussing interpretive regulations).9


121
Though the two provisions differ in significant respects, they  have common flaws.  In both instances, Congress singles out one sort of  speech for vulnerability to private censorship in a context where  content-based discrimination is not otherwise permitted.  The plurality  at least recognizes this as state action, ante, at 6, avoiding the  mistake made by the Court of Appeals, Alliance for Community Media v.  FCC, 56 F. 3d 105, 112-121 (1995).  State action lies in the enactment  of a statute altering legal relations between persons, including the  selective withdrawal from one group of legal protections against  private acts, regardless of whether the private acts are attributable to the  State.  Cf. Hunter v. Erickson, 393 U. S. 385, 389-390 (1969) (state  action under the Fourteenth Amendment).


122
The plurality balks at taking the next step, however, which is  to advise us what standard it applies to determine whether the state  action conforms to the First Amendment.  Sections 10(a) and (c)  disadvantage nonobscene, indecent programming, a protected category of  expression, Sable Communications of Cal.,  Inc. v. FCC, 492 U. S. 115,  126 (1989), on the basis of its content. The Constitution in general  does not tolerate content-based restriction of or discrimination against  speech.  R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992) ("Content-based  regulations are presumptively invalid"); Carey v. Brown, 447 U. S. 455,  461-463 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972).  In the realm of speech and expression, the First Amendment  envisions the citizen shaping the government, not the reverse; it  removes "governmental restraints from the arena of public discussion,  putting the decision as to  what views shall be voiced largely into the  hands of each of us, in the hope that use of such freedom will  ultimately produce a more capable citizenry and more perfect polity."  Cohen v. California, 403 U. S. 15, 24 (1971).  "[E]ach person should  decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence.  Our political system  and cultural life  rest upon this ideal."  Turner Broadcasting System, Inc. v. FCC, 512 U.  S. ___, ___ (1994) (slip op., at 16).  We therefore have given "the most  exacting scrutiny to regulations that suppress, disadvantage, or impose  differential  burdens upon speech because of its content."  Id., at ___   (slip op., at 17).


123
Sections 10(a) and (c) are unusual.  They do not require direct  action against speech, but do authorize a cable operator to deny the use  of its property to certain forms of speech.  As a general matter, a  private person may exclude certain speakers from his or her property  without violating the First Amendment, Hudgens v. NLRB, 424 U. S. 507   (1976), and if Section(s) 10(a) and (c) were no more than affirmations  of this principle they might be unremarkable.  Access channels, however,  are property of the cable operator dedicated or otherwise reserved for programming of other speakers or the government.  A public access channel is a public forum, and laws requiring leased access channels  create common carrier obligations.  When the government identifies  certain speech on the basis of its content as vulnerable to exclusion  from a common carrier or public forum, strict scrutiny applies.  These  laws cannot survive this exacting review.  However compelling Congress'  interest in shielding children from indecent programming, the provisions  in  this case are not drawn with enough care to withstand scrutiny under  our precedents.

II.

124
Before engaging the complexities of cable access channels and explaining my reasons for thinking all of Section(s) 10 unconstitutional, I start with the most disturbing aspect of the plurality opinion: its evasion of any clear legal standard in deciding  this case.  See ante, at 11 (disavowing need to "declare which, among  the many applications of the general approach that this Court has  developed over the years, we are applying here").


125
The plurality begins its flight from standards with a number of  assertions nobody disputes.  I agree, of course, that it would be unwise  "to declare a rigid single standard, good for now and for all future  media and purposes," ante, at 11.  I do think it necessary, however, to  decide what standard applies to discrimination against indecent  programming on cable access channels in the present state of the  industry.  We owe at least that much to public and leased access  programmers whose speech is put at risk nationwide by these laws.


126
In a similar vein, we are admonished this case is complicated,  not simple; the importance of contextual review, we are told, cannot be  evaded by recourse to simple analogies. Ante, at 9-13, 18.  All this is  true, but use of a standard does not foreclose consideration of context.  Indeed, if strict scrutiny is an instance of "judicial formulae so rigid  that they become a straitjacket that disables Government from responding  to serious problems," ante, at 11, this is a grave indictment of  our First Amendment jurisprudence, which relies on strict scrutiny in a  number of settings where context is important.  I  have expressed  misgivings about judicial balancing under the First Amendment, see  Burson v. Freeman, 504 U. S. 191, 211-212 (1992) (concurring opinion);  Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502  U. S. 105, 124-125 (1991)  (opinion concurring in judgment), but strict  scrutiny at least confines the balancing process in a manner protective  of speech; it does not disable government from addressing serious  problems, but does ensure that the solutions do not sacrifice speech to  a  greater extent than necessary.


127
The plurality claims its resistance to standards is in keeping  with our case law, where we have shown a willingness to be flexible in  confronting novel First Amendment problems.  The cases it cites, ante,  at 10-11, however, demonstrate the opposite of what the plurality  supposes: in each, we developed specialized or more or less stringent  standards when certain contexts demanded them; we did not avoid the use  of standards altogether.  Indeed, the creation of standards and  adherence to them, even when it means affording protection to speech  unpopular or distasteful, is the central achievement of our First  Amendment jurisprudence.  Standards are the means by which we state in advance how to test a law's validity, rather than letting the height of  the bar be determined by the apparent exigencies of the day.  They also  provide notice and fair warning to those who must predict how the courts  will respond to attempts to suppress their speech.  Yet formulations  like strict scrutiny, used in a number of constitutional settings to  ensure  that the inequities of the moment are subordinated to commitments  made for the long run, see Simon & Schuster, supra, at 115-116; Perry  Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983), mean  little if they can be watered down whenever they seem too strong.  They mean still less if they can be ignored altogether when considering a  case not on all fours with what we have seen before.


128
The plurality seems distracted by the many changes in technology  and competition in the cable industry.  See ante, at 11-12; ante, at 3-4   (Souter, J., concurring).  The laws challenged here, however, do not  retool the structure of the cable industry or (with the exception of  Section(s) 10(b)) involve intricate technologies.  The straightforward  issue here is whether the Government can deprive certain speakers, on  the basis of the content of their speech, of protections afforded all others.  There is no reason to discard our existing First Amendment  jurisprudence in answering this question.


129
While it protests against standards, the plurality does seem to  favor one formulation of the question in this case: namely, whether the  Act "properly addresses an extremely important problem, without  imposing, in light of the relevant interests, an unnecessarily great  restriction on speech."  Ante, at 12. (Though the plurality frowns on  any effort to settle on a form of words, it likes this formulation well  enough to repeat it; see ante, at 11).  This description of the question  accomplishes little, save to clutter our First Amendment case law by  adding an untested rule with an uncertain relationship to the others we  use to evaluate laws restricting speech.  The plurality cannot bring itself to apply strict scrutiny, yet realizes it cannot decide the case  without uttering some sort of standard; so it has settled for synonyms.  "[C]lose judicial scrutiny," ante, at  11, 12, is substituted for strict  scrutiny, and "extremely important problem," ante, at 12, or  "extraordinary proble[m]," ante, at 11, is substituted for "compelling  interest." The admonition that the restriction not be unnecessarily  great in light of the interest it serves, ante, at 12, is substituted  for the usual narrow tailoring requirements.  All we know about the substitutes is that they are inferior to their antecedents.  We are told  the Act must be "appropriately tailored," ante, at 11, "sufficiently  tailored," ante, at 12, or "carefully and appropriately addressed,"  ante, at 18, to the problems at hand-anything, evidently, except  narrowly tailored.


130
These restatements have unfortunate consequences.  The first is  to make principles intended to protect speech easy to manipulate.  The  words end up being a legalistic cover for an ad hoc balancing of  interests; in this respect the plurality succeeds after all in avoiding  the use of a standard.  Second, the plurality's exercise in pushing  around synonyms for the words of our usual standards will sow confusion  in the courts bound by our precedents.  Those courts, and lawyers in the  communications field, now will have to discern what difference there is  between the formulation the plurality applies today and our usual strict scrutiny.  I can offer little guidance, except  to note the unprotective  outcome the plurality reaches here.  This is why comparisons and  analogies to other areas of our First Amendment case law become a  responsibility, rather than the luxury the plurality considers them to  be.  The comparisons  provide discipline to the Court and guidance for  others, and give clear content to our standards-all the things I find  missing in the plurality's opinion.  The novelty and complexity of the  case is a reason to look for help from other areas of our First  Amendment jurisprudence, not a license to wander into uncharted areas of the law with no compass other than our own opinions about good policy.


131
Another troubling aspect of the plurality's approach is its suggestion that Congress has more leeway than usual to enact restrictions on speech where emerging technologies are concerned, because we are unsure what standard should be used to assess them. Justice Souter recommends to the Court the precept "`First, do no harm,'" ante, at 6.  The question, though, is whether the harm is in  sustaining the law or striking it down.   If the plurality is concerned  about technology's direction, it ought to begin by allowing speech, not  suppressing it.  We have  before us an urgent claim for relief against  content-based discrimination, not a dry run.


132
I turn now to the issues presented, and explain why strict scrutiny is warranted.

III.
A.

133
Cable operators deliver programming from four sources: retransmission of broadcast stations; programming purchased from professional vendors (including national services like ESPN and Nickelodeon) and delivered by satellite; programs created by the cable  operator itself; and access channels (PEG and leased), the two kinds of  programming at issue here. See Mueller, Note, Controversial Programming  on Cable Television's Public Access Channels: The Limits of Governmental  Response, 38 DePaul L. Rev. 1051, 1056-1057 (1989) (hereinafter  Mueller).  See also Turner Broadcasting, supra, at ___ (slip op., at 3).


134
PEG access channels grew out of local initiatives in the late 1960's and early 1970's, before the Federal Government began regulating  cable television.  Mueller 1061.  Local franchising was the first form  of cable regulation, arising from the need of localities to control  access to public rights-of-way and easements and to minimize disruption  to traffic and other public activity from the laying of cable lines.  See D. Brenner,  M. Price, & M. Meyerson, Cable Television and Other  Nonbroadcast Video Section(s) 3.01[3] (1996) (hereinafter Brenner);  Turner Broadcasting, supra, at ___ (slip op., at 2-3) ("[T]he cable medium may depend for its very existence upon express permission from  local governing authorities").  A local government would set up a  franchise authority to oversee the cable system and to negotiate a  franchise agreement specifying the cable operator's rights and  obligations.  See Brenner Section(s) 3.01; Section(s) 3.01[4]  (discussing States where local franchising has now been displaced by  state regulation).  Cf. 47 U. S. C. Section(s) 522(10) (defining  franchise authority).  A franchise, now mandatory under federal law  except for systems operating without them prior to 1984, Section(s)  541(b), is an authorization, akin to a license, by a franchise authority  permitting the construction or operation of a cable system. Section(s)  522(8). From the early 1970's onward, franchise authorities began requiring operators to set aside access channels as a condition of the  franchise.  See Mueller 1061-1062; D. Agosta, C. Rogoff,  & A. Norman,  The Participate Report: A Case Study of Public Access Cable Television  in New York State 24 (1990) (hereinafter Agosta), attached as Exhibit K  to Joint Comments for the Alliance for Community Media et al., filed  with the FCC under MM Docket No. 92-258.


135
The FCC entered the arena in 1972, requiring the cable companies  servicing the country's largest television markets to set aside four  access channels (one each for public, educational, governmental, and  leased programming) by a date certain, and to add channel capacity if  necessary to meet the requirement.  Cable Television Report and Order,  36 F. C. C. 2d 141, 189-198 (1972). See also In re Amendment of Part 76  of the Commission's Rules and Regulations Concerning the Cable  Television Channel Capacity and Access Channel Requirements of Section  76.251, 59 F. C. C. 2d 294, 303, 321 (1976) (modifying the 1972 rules).  We struck down the access rules as beyond the FCC's authority under the Communications Act of 1934.  FCC v. Midwest Video Corp., 440 U. S. 689,  708-709 (1979).


136
When Congress turned its attention to PEG access channels in 1984, it recognized that "reasonable third-party access to cable systems  will mean a wide diversity of information sources for the public-the  fundamental goal of the First Amendment-without the need to regulate the  content of programming provided over cable." H. R. Rep. No. 98-934, p.  30 (1984).  It declined, however, to set new federal mandates or  authorize the FCC to do  so.  Since "[a]lmost all recent franchise  agreements provide for access by local governments, schools, and  nonprofit and community groups" over some channels, the 1984 Act instead  "continue[d] the policy of allowing cities to specify in cable  franchises that channel capacity and other facilities be devoted  to such  use."  Ibid.


137
Section 611 of the Communications Act of 1934, added by the Cable Communications Policy Act of 1984 (1984 Act), authorized local  franchise authorities to require cable operators to set aside channel  capacity for PEG access when seeking new franchises or renewal of old  ones.  47 U. S. C. Section(s) 531(b). Franchise authorities may enforce  franchise agreements, Section(s) 531(c), but they lack the power to  impose requirements beyond those authorized by federal law, Section(s)   531(a).  But cf. Section(s) 557(a) (grandfathering as valid all pre-1984 franchise agreements for the remainder of their term).  Federal law also  allows a franchise authority to "require adequate assurance that the  cable operator will provide adequate public, educational, and  governmental access channel capacity, facilities, or financial support."  Section(s) 541(a)(4)(B). Prior to the passage of Section(s) 10(c) of  the 1992 Act, the cable operator, save for implementing provisions of  its franchise agreement limiting obscene or otherwise constitutionally unprotected cable programming, Section(s) 544(d), was forbidden any  editorial control over PEG access channels.  47 U. S. C. Section(s)  531(e) (1988 ed.).


138
Congress has not, in the 1984 Act or since, defined what public,  educational, or governmental access means or placed substantive limits  on the types of programming on those channels. Those tasks are left to  franchise agreements, so long as the channels comport in some sense with  the industry practice to which Congress referred in the statute.


139
My principal concern is with public access channels (the P of PEG). These are the channels open to programming by members of the public. Petitioners here include public access programmers and viewers  who watch their shows.  By contrast, educational and governmental access  channels (the E and G of PEG) serve other speakers.  Under many  franchises, educational channels are controlled by local school systems,  which use them  to provide school information and educational programs.  Governmental access channels are committed by the cable franchise to the  local municipal government, which uses them to distribute information to constituents on public affairs.  Mueller 1065-1066.  No local governmental entity or school system has petitioned for relief in this  case, and none of the petitioners  who are viewers has asserted an  interest in viewing educational  or governmental programming or briefed  the relevant issues.

B.

140
The public access channels established by franchise agreements  tend to have certain traits.  They are available at low or no cost to  members of the public, often on a first-come, first-served basis.  Brenner Section(s) 6.04[3][a]-[b], at 6-38. The programmer on one of  these channels most often has complete control over, as well as  liability for, the content of its show. Ibid.; Mueller 1064.  The  entity managing the technical aspects of public access, such as  scheduling and transmission, is not always the cable operator; it may be  the local government or a third party that runs the access centers,  which are facilities made available for the public to produce programs  and transmit them on the access channels.  Brenner Section(s) 6.04[7],  at 6-48.


141
Public access channels meet the definition of a public forum. We have recognized two kinds of public forums.  The first and most familiar are traditional public forums, like streets, sidewalks, and  parks, which by custom have long been open for public assembly and  discourse.  Perry, 460 U. S., at 45; Hague v. CIO, 307 U. S. 496, 515   (1939) (opinion of Roberts, J.).  "The second category of public  property is the designated public forum, whether of a limited or  unlimited character-property that the State has opened for expressive  activity by part or all of the public."  International Soc. for Krishna  Consciousness, Inc. v. Lee, 505 U. S. 672, 678 (1992).


142
Public access channels fall in the second category.  Required by  the franchise authority as a condition of the franchise and open to all  comers, they are a designated public forum of unlimited character.  The  House Report for the 1984 Cable Act is consistent with this view.  It  characterized public access channels as "the video equivalent of the  speaker's soapbox or the electronic parallel to the printed leaflet.  They  provide groups and individuals who generally have not had access  to  the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas."  H. R. Rep. No.  98-934, at 30.  Public forums do not have to be physical gathering  places, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S.  ___, ___ (1995) (slip op., at 8-9), nor  are they limited to property  owned by the government, Cornelius  v. NAACP Legal Defense and Ed. Fund,  Inc., 473 U. S. 788, 800 (1985). Indeed, in the majority of  jurisdictions, title to some of the most traditional of public forums,  streets and sidewalks, remains in private hands.  10A E. McQuillin, Law  of Municipal Corporations Section(s) 30.32 (3d ed. 1990); Hague v. CIO,  supra, at 515 ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time  out of mind, have been used for purposes of assembly, communicating  thoughts between citizens, and discussing public questions").  Public  access channels are analogous; they are public forums even though they  operate over  property to which the cable operator holds title.


143
It is important to understand that public access channels are public forums created by local or state governments in the cable franchise. Section Section(s) 10(c) does not, as the Court of Appeals  thought, just return rightful First Amendment discretion to the cable  operator, see Alliance for Community Media, 56 F. 3d, at 114.  Cable  operators have First Amendment rights, of course; restrictions on entry  into the cable business may be challenged under the First Amendment, Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 494 (1986),  and a cable operator's activities in originating programs or exercising editorial discretion over programs others provide on its system also are  protected, Turner Broadcasting, 512 U. S., at ___ (slip op., at 11). But  cf. id., at ___ (slip op., at 31-32) (distinguishing discretion of cable  operators from that of newspaper editors).  Yet the editorial discretion  of a cable operator is a function of the cable franchise it receives  from local government.  The operator's right to exercise any editorial discretion over cable service disappears if its franchise is terminated.  See 47 U. S. C. Section(s) 541(b) (cable service may not be offered  without a franchise); Section(s) 546 (prescribing procedures and  standards for renewal).  Cf. Brenner Section(s) 3.07[9][a] (franchise  terms of 15 years are the norm); Section(s) 3.07[15] (typical franchise  agreements recognize the absolute right of the franchisor to refuse  renewal at expiration of term). If the franchise is transferred to  another, so is the right of editorial discretion.  The cable operator  may own the cables transmitting the signal, but it is the franchise-the  agreement between the cable operator and the local government-that allocates some channels to the full discretion of the cable operator  while reserving others for public access.


144
In providing public access channels under their franchise agreements, cable operators therefore are not exercising their own First  Amendment rights.  They serve as conduits for the speech of others.  Cf.  PruneYard Shopping Center v. Robins, 447  U. S. 74, 87 (1980).  Section  channels that the cable operator once had; the discretion never existed.  It vests the cable operator with a power under federal law, defined by  reference to the content of speech, to override the franchise agreement  and undercut the public forum the agreement creates.  By enacting a law  in 1992 excluding indecent programming from protection but retaining the prohibition on cable operators' editorial control  over all other protected speech, the Federal Government at the same time ratified the  public-forum character of public access channels but discriminated  against certain speech based on its content.


145
The plurality refuses to analyze public access channels as public forums because it is reluctant to decide "the extent to which  private property can be designated a public forum," ante, at 12.  We  need not decide here any broad issue of whether private property can be  declared a public forum by simple governmental decree.  That is not what  happens in the creation of public access channels.  Rather, in return  for granting cable operators easements to use public rights-of-way for  their cable lines, local governments have bargained for a right to use  cable lines for public access channels.  Justice Thomas resists public-forum analysis because he sees no evidence of a "formal easement." Post, at 18.  Under general principles of property law, no  particular formalities are necessary to create an easement. Easements  may be created by contract.  2 G. Thompson, Commentaries on the Modern  Law of Real Property Section(s) 331-332 (1980); 3 H. Tiffany, The Law of  Real Property Section(s) 776 (3d ed. 1939).  A franchise agreement is a  contract, and in those agreements the cable operator surrenders his  power to exclude certain programmers from use of his property for  specific purposes.  A state court confronted with the issue would likely hold the franchise agreement to create a right of access equivalent to  an easement in land. So one can even view this case as a local  government's dedication of its own property interest to speech by  members of the public.  In any event, it seems to me clear that when a  local government contracts to use private property for public expressive  activity, it creates a public forum.


146
Treating access channels as public forums does not just place a  label on them, as the plurality suggests, see ante, at 20.  It defines  the First Amendment rights of speakers seeking to use the channels.  When property has been dedicated to public  expressive activities, by  tradition or government designation, access is protected by the First  Amendment.  Regulations of speech content in a designated public forum,  whether of limited  or unlimited character, are "subject to the highest  scrutiny" and "survive only if they are narrowly drawn to achieve a  compelling state interest."  Lee, 505 U. S., at 678.  Unless there are  reasons for applying a lesser standard, Section(s) 10(c) must satisfy  this stringent review.

C.

147
Leased access channels, as distinct from public access channels,  are those the cable operator must set aside for unaffiliated programmers  who pay to transmit shows of their own without the cable operator's  creative assistance or editorial approval.  In my view, strict scrutiny  also applies to Section(s) 10(a)'s authorization to cable operators to  exclude indecent programming from these channels.


148
Congress created leased access channels in the 1984 Cable Act.  Section 612 of the Act, as amended, requires a cable system with more  than 36 channels to set aside a certain percentage of its channels (up  to 15%, depending on the size of the system) "for commercial use by  persons unaffiliated with the operator." 47 U. S. C. Section(s)  532(b)(1). Commercial use means "provision of video programming, whether  or not for profit."  Section(s) 532(b)(5).  When an unaffiliated  programmer seeks access, the cable operator shall set "the price, terms,  and conditions of such use which are at least sufficient to assure that  such use will not adversely affect the operation, financial condition,  or market development of the cable system," Section(s) 532(c)(1). Cf.  47 CFR Section(s) 76.971 (1995) (rules governing terms and conditions of  leased access).  The price may not exceed the maximum charged any  unaffiliated programmer in the same program category for the use of  non-access channels.  Section(s) 76.970. Aggrieved programmers have  recourse to federal district court and the FCC (if there are repeated  violations) to compel access on appropriate terms.  47  U. S. C.  Section(s) 532(d), (e).


149
Before 1992, cable operators were forbidden editorial control over any video programming on leased access channels, and could not  consider the content of the programming except to  set the price of  Section(s) 532(h) (prohibiting programs which are obscene or otherwise  unprotected under the Constitution on leased access channels).  Section  10(a) of the 1992 Act modifies the no-discretion rule by allowing cable  operators to reject, pursuant to a written and published policy,  programs they reasonably believe to be indecent.  Section(s) 532(h).  Under Section(s) 10(b) of the Act, any indecent programming must be segregated onto one channel and blocked unless the subscriber requests  that the channel be provided to him.  Section(s) 532(j); 47 CFR  Section(s) 76.701 (1995).


150
Two distinctions between public and leased access channels are  important.  First, whereas public access channels are required by state  and local franchise authorities (subject to certain federal  limitations), leased access channels are created by federal law. Second,  whereas cable operators never have had editorial discretion over public  access channels under their franchise agreements, the leased access  provisions of the 1984 Act take away channels the operator once  controlled.  Cf. Midwest Video, 440 U. S., at 708, n. 17 (federal  mandates "compelling cable operators indiscriminately to accept access  programming will interfere with their determinations regarding the total service offering to be extended to subscribers").  In  this sense, Section(s) 10(a) now gives back to the operator some of the discretion  it had before Congress imposed leased access requirements in the first  place.


151
The constitutionality under Turner Broadcasting, 512 U. S., at  ___ (slip op., at 38-40), of requiring a cable operator to set aside  leased access channels is not before us.  For purposes of this case, we  should treat the cable operator's rights in these channels as  extinguished, and address the issue these petitioners present: namely,  whether the Government can discriminate on the basis of content in  affording protection to  certain programmers. I cannot agree with  Justice Thomas, post,  at 11, that the cable operator's rights inform  this analysis.


152
Laws requiring cable operators to provide leased access are the  practical equivalent of making them common carriers, analogous in this  respect to telephone companies: They are obliged to provide a conduit  for the speech of others.  The plurality resists any classification of  leased access channels (as created in the 1984 Act) as a common carrier  provision, ante, at 9, although we described in just those terms the  access (including leased access) rules promulgated by the FCC in 1976:


153
"The access rules plainly impose common-carrier obligations      on  cable operators.  Under the rules, cable systems are      required to hold  out dedicated channels on a first-come,      nondiscriminatory basis.  Operators are prohibited from      determining or influencing the content of  access      programming.  And the rules delimit what operators may charge      for  access and use of equipment."  Midwest Video, supra, at      701-702   (citations and footnotes omitted).


154
Indeed, we struck down the FCC's rules as beyond the agency's statutory authority at the time precisely because they  made cable operators common carriers.  Id., at 702-709.  The FCC characterizes  Section(s) 612 as a form of common-carrier requirement, App. to Pet. for  Cert. 139a-140a, as does the Government, Brief for Federal Respondents  23.


155
Section 10(a) authorizes cable operators to ban indecent programming on leased access channels.  We have held that a law precluding a common carrier from transmitting protected speech is subject to strict scrutiny, Sable Communications, 492 U. S., at 131   (striking down ban on indecent telephonic communications), but we have  not had occasion to consider the standard for reviewing a law, such as  Section(s) 10(a), permitting a carrier in its discretion to exclude  specified speech.


156
Laws removing common-carriage protection from a single form of  speech based on its content should be reviewed under the same standard  as content-based restrictions on speech in a public forum.  Making a  cable operator a common carrier does not create a public forum in the  sense of taking property from private control and dedicating it to  public use; rather, regulations of a common carrier dictate the manner  in which private control is exercised.  A common-carriage mandate,  nonetheless, serves the same function as a public forum.  It ensures  open, nondiscriminatory access to the means of communication.  This purpose is evident in the statute itself and in the committee findings  supporting it.  Congress described the leased access requirements as  intended "to promote competition in the delivery of diverse sources of  video programming and to assure that the widest possible diversity of  information sources are made available to the public from cable systems  in a manner consistent with growth and development of cable systems." 47  U.  S. C. Section(s) 532(a).  The House Committee reporting the 1984  cable bill acknowledged that, in general, market demand would prompt cable operators to provide diverse programming.  It recognized, though,  the incentives cable operators might have to exclude "programming which  represents a social or political viewpoint that a cable operator does  not wish to disseminate, or . . . competes with a program service  already being provided by that cable system."  H. R. Rep. No. 98-934, at  48.  In its view, the leased access provisions were narrowly drawn  structural regulations of private industry, cf. Associated Press v.  United States, 326 U. S. 1 (1945), to enhance the free flow and diversity of information available to the public without governmental  intrusion into decisions about program content.  H. R. Rep. No. 98-934,  supra, at 32-35.  The functional equivalence of designating a public  forum and mandating common carriage suggests the same scrutiny should be  applied to attempts in either setting to impose content discrimination  by law. Under our precedents, the scrutiny is strict.


157
"The Constitution forbids a State to enforce certain exclusions  from a forum generally open to the public even if it was not required to  create the forum in the first place.  Widmar v. Vincent, 454 U. S. 263   (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 (1976)  (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.  S. 546 (1975) (municipal theater).  Although a State is not required to indefinitely retain the open character of the facility, as long as it  does so it is bound by the same standards as apply in a traditional  public forum.  Reasonable time, place, and manner regulations are  permissible, and a content-based prohibition must be narrowly drawn to  effectuate a compelling state interest." Perry, 460 U. S., at 45-46.


158
In Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972), we made clear that selective exclusions from a public forum were unconstitutional.  Invoking the First and Fourteenth Amendments to strike down a city ordinance allowing only labor picketing on any public  way near schools, we held the "government may not grant the use of a  forum to people whose views it finds acceptable, but deny use to those  wishing to express less favored or more controversial views."  Id., at  96.


159
"Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking  on the basis of what they intend to say.  Selective exclusions from a  public forum may not be based on content alone, and may not be justified  by reference to content alone."  Ibid.


160
Since the same standard applies to exclusions from limited or unlimited designated public forums as from traditional forums, Lee, 505  U. S., at 678, there is no reason the kind of selective exclusion we  condemned in Mosley should be tolerated here.


161
The plurality acknowledges content-based exclusions from the right to use a common carrier could violate the First Amendment. It  tells us, however, that it is wary of analogies to doctrines developed  elsewhere, and so does not address this issue.  Ante, at 19.  This  newfound aversion to analogical reasoning strikes at a process basic to  legal analysis.  See E. Levi, An Introduction to Legal Reasoning 1-2   (1949). I am not suggesting the plurality should look far afield to  other areas of law; these are settled First Amendment doctrines dealing  with state action depriving certain speakers of protections afforded to  all others.


162
In all events, the plurality's unwillingness to consider our public-forum precedents does not relieve it of the burden of explaining  why strict scrutiny should not apply.  Except in instances involving  well-settled categories of proscribable speech, see R. A. V., 505 U. S.,  at 382-390, strict scrutiny is the baseline rule for reviewing any  content-based discrimination against speech.  The purpose of forum  analysis is to determine whether, because of the property or medium  where speech takes place, there should be any dispensation from this  rule.  See Consolidated Edison Co. of N. Y. v. Public Service Comm'n of  N. Y., 447 U. S. 530, 538-539 (1980).  In the context of government property, we have recognized an exception "[w]here the government is  acting as a proprietor, managing its internal operations, rather than  acting as lawmaker with the power to regulate or license," and in those  circumstances, we have said, regulations of speech need only be  reasonable and viewpoint-neutral.  Lee, 505 U. S., at 678-679.  Here, of  course, the Government has not dedicated the cable operator's property  for leased access to serve some proprietary function of its own; it has  done so to provide a forum for a vital class of programmers who  otherwise would be excluded from cable television.


163
The question remains whether a dispensation from strict scrutiny  might be appropriate because Section(s) 10(a) restores in part an  editorial discretion once exercised by the cable operator over speech  occurring on its property.  This is where public-forum doctrine gives  guidance. Common-carrier requirements of leased access are little  different in function from designated public forums, and no different  standard of review should apply. It is not that the functional  equivalence  of leased access channels to designated public forums  compels strict scrutiny; rather, it simply militates against recognizing  an exception to the normal rule.


164
Perhaps, as the plurality suggests, ante, at 19-20, Section(s)  10(a) should be treated as a limitation on a forum rather than an  exclusion from it. This would not change the analysis, however.  If  Government has a freer hand to draw content-based distinctions in  limiting a forum than in excluding someone from it, the First Amendment  would be a dead letter in designated public forums; every exclusion  could be recast as a limitation.  See Post, Between Governance and  Management: the History and Theory of the Public Forum, 34 UCLA L. Rev.  1713, 1753 (1987).  We have allowed content-based limitations of public forums, but only when necessary to serve specific institutional ends.  See Perry, 460 U. S., at 48 (school mailboxes, if considered designated  public forums, could be limited to mailings from "organizations that  engage in activities of interest and educational relevance to  students"); Widmar v. Vincent, 454 U. S. 263, 267-268, n. 5 (1981)  (recognizing a public university could limit the use of its facilities  by reasonable regulations compatible with its mission of education);  Madison Joint School District No. 8 v. Wisconsin Employment Relations  Comm'n, 429 U. S. 167, 175, n. 8 (1976) (in assessing  a teacher's right  to speak at a school board meeting, considering it obvious that "public  bodies may confine their meetings to specified subject matter").  The  power to limit or redefine forums for a specific legitimate purpose, see  Rosenberger, 515 U. S., at ___ (slip op., at 8), does not allow the  government to exclude certain speech or speakers from them for any  reason at all.


165
Madison Joint School District, supra, illustrates the point. The Wisconsin Employment Relations Commission had ordered a school board  to prohibit school employees other than union representatives from  speaking at its meetings on matters subject to collective bargaining  between the board and the union.  Id., at 173.  While recognizing the  power of a State to limit school board meetings to certain subject  matter, we held it could not confine the forum "to one category of  interested individuals." Id., at 175.  The exclusion would skew the  debate and deprive decisionmakers of the benefit of other voices.  Id.,  at 175-176.


166
It is no answer to say Congress does not have to create access  channels at all, so it may limit access as it pleases. Whether or not a  government has any obligation to make railroads common carriers, under  the Equal Protection Clause it could not define common carriage in ways  that discriminate against suspect classes.  See Bailey v. Patterson, 369  U. S. 31, 33 (1962) (per curiam) (States may not require railroads to  segregate the races).  For the same reason, even if Congress has no  obligation to impose common carriage rules on cable operators or retain them forever, it is not at liberty to exclude certain forms of speech  from their protection on the suspect basis of content. See Perry,  supra, at 45-46.


167
I do not foreclose the possibility that the Government could create a forum limited to certain topics or to serving the special needs  of certain speakers or audiences without its actions being subject to  strict scrutiny.  This possibility seems to trouble the plurality, which  wonders if a local government must "show a compelling state interest if  it builds a band shell in the park and dedicates it solely to classical  music (but not to jazz)." Ante, at 19.  This is not the correct  analogy.  Our case is more akin to the Government's creation of a band  shell in which all types of music might be performed except for rap  music.  The provisions here are content-based discriminations in the  strong sense of suppressing a certain form of expression that the Government dislikes, or otherwise wishes to exclude on account of its  effects, and there is no justification for anything but strict scrutiny  here.


168
Giving government free rein to exclude speech it dislikes by delimiting public forums (or common carriage provisions) would have  pernicious effects in the modern age.  Minds are not changed in streets  and parks as they once were.  To an increasing degree, the more  significant interchanges of ideas and shaping of public consciousness  occur in mass and electronic media.  Cf. United States v. Kokinda, 497  U. S. 720, 737 (1990)  (Kennedy, J., concurring in judgment).  The extent  of public entitlement to participate in those means of communication may  be changed as technologies change; and in expanding those entitlements  the Government has no greater right to discriminate on suspect grounds than it does when it effects a ban on speech  against the backdrop of the  entitlements to which we have been more accustomed.  It contravenes the  First Amendment to give Government a general license to single out some  categories of speech for lesser protection so long as it stops short of  viewpoint discrimination.

D.

169
The Government advances a different argument for not applying strict scrutiny in this case.  The nature of access channels to one  side, it argues the nature of the speech in question-indecent broadcast   (or cablecast)-is subject to the lower standard of review it contends  was applied in FCC v. Pacifica Foundation, 438 U. S. 726, 748 (1978)  (upholding an FCC order declaring the radio broadcast of indecent speech  during daytime hours to be sanctionable).


170
Pacifica did not purport, however, to apply a special standard  for indecent broadcasting.  Emphasizing the narrowness of its holding,  the Court in Pacifica conducted a context-specific analysis of the FCC's  restriction on indecent programming during daytime hours.  See id., at  750.  See also Sable Communications, 492 U. S., at 127-128 (underscoring  the narrowness of Pacifica).  It relied on the general rule that "broadcasting . . . has received the most limited First Amendment protection."  Id., at 748.  We already have rejected the application of  this lower broadcast standard of review to infringements on the  liberties of cable operators, even though they control an important  communications medium.  Turner Broadcasting, 512 U. S., at ___ (slip  op., at 12-16).  There is even less cause for a lower standard here.


171
Pacifica did identify two important considerations relevant to  the broadcast of objectionable material.  First, indecent broadcasting  "confronts the citizen, not only in public, but also in the privacy of  the home, where the individual's right to be left alone plainly  outweighs the First Amendment rights of intruder."  438 U. S., at 748.  Second, "broadcasting is uniquely accessible to children, even those too  young to read."  Id., at 749.  Pacifica teaches that access channels,  even if analogous to ordinary public forums from the standpoint of the  programmer, must also be considered from the standpoint of the viewer.  An access channel is not a forum confined to a discrete public space; it  can bring indecent expression into the home of every cable subscriber,  where children spend astounding amounts of time watching television, cf.  ante, at 14 (citing studies).  Though in Cohen we explained that people  in public areas may have to avert their eyes from messages that offend  them, 403 U.  S., at 21, we further acknowledged that "government may  properly act in many situations to prohibit intrusion into the privacy  of the home of unwelcome views and ideas which cannot be totally banned  from the public dialogue," ibid.  See Hess v. Indiana, 414 U. S. 105,  108 (1973) (per curiam); Rowan v. Post Office Dept., 397 U. S. 728, 736-738 (1970).  This is more true when the interests of children are at  stake.  See id., at 738 ("[T]he householder [should not] have to risk  that offensive material come into the hands of his children before it  can be stopped").


172
These concerns are weighty and will be relevant to whether the  law passes strict scrutiny.  They do not justify, however, a blanket  rule of lesser protection for indecent speech.  Other than the few  categories of expression which can be proscribed, see R. A. V., 505 U.  S., at 382-390, we have been reluctant to mark off new categories of  speech for diminished constitutional protection.  Our hesitancy reflects  skepticism about the possibility of courts' drawing principled  distinctions to use in judging governmental restrictions on speech and  ideas, Cohen, supra, at 25, a concern heightened here by the  inextricability of indecency from expression.  "[W]e cannot indulge the  facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." 403 U.  S., at 26.  The same is true of forbidding programs indecent in some  respect.  In artistic or political settings, indecency may have strong  communicative content, protesting conventional norms or giving an edge  to a work by conveying "otherwise inexpressible emotions," Ibid.  In  scientific programs, the more graphic the depiction (even if to the  point of offensiveness), the more accurate and comprehensive the  portrayal of the truth may be. Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or  expressive power.  Under our traditional First Amendment jurisprudence,  factors perhaps justifying some restriction on indecent cable  programming may all be taken into account without derogating this  category of protected speech as marginal.

IV.

173
At a minimum, the proper standard for reviewing Section(s) 10(a)  be otherwise.  I would hold these enactments unconstitutional because  they are not narrowly tailored to serve a compelling interest.


174
The Government has no compelling interest in restoring a cable  operator's First Amendment right of editorial discretion. As to  franchises operators had no rights of editorial discretion over PEG  access channels in the first place.  As to Section(s) 10(a), any  governmental interest in restoring operator discretion over indecent  programming on leased access channels is too minimal to justify the law.  First, the transmission of indecent programming over leased access  channels is not forced speech of the operator.  Turner Broadcasting,  supra, at ___ (slip op., at 31-32); PruneYard, 447 U. S., at 87.  Second, the discretion conferred by the law is slight.  The operator is  not  authorized to place programs of its own liking on the leased access channels, nor to remove other speech (racist or violent,  for example)  that might be offensive to it or to viewers.  The operator is just given  a veto over the one kind of lawful speech Congress disdains.


175
Congress does have, however, a compelling interest in protecting  children from indecent speech.  Sable Communications, 492 U. S., at 126;  Ginsberg v. New York, 390 U. S. 629, 639-640 (1968). See also Pacifica,  438 U. S., at 749-750 (same).  So long as society gives proper respect  to parental choices, it may, under an appropriate standard, intervene to  spare children exposure to material not suitable for minors.  This  interest is substantial enough to justify some regulation of indecent  speech even under, I will assume, the indecency standard used here.


176
Sections 10(a) and (c) nonetheless are not narrowly tailored to  protect children from indecent programs on access channels. First, to  the extent some operators may allow indecent programming, children in  localities those operators serve will be left unprotected.  Partial  service of a compelling interest is not narrow tailoring.  FCC v. League  of Women Voters of Cal., 468 U. S. 364, 396 (1984) (asserted interest in  keeping noncommercial stations free from controversial or partisan  opinions not served by ban on station editorials, if such opinions could  be aired through other programming); The Florida Star v. B. J. F., 491  U. S. 524, 540-541 (1989) (selective ban on publication of rape victim's  name in some media but not others not narrowly tailored).  Cf. Bolger v.  Youngs Drug Products Corp., 463 U. S. 60, 73 (1983) (restriction that  "provides only the most limited incremental support for the interest  asserted" cannot pass muster under commercial-speech standards).  Put  another way, the interest in protecting children from indecency only at  the caprice of the cable operator is not compelling.  Perhaps Congress drafted the law this way to avoid the clear constitutional difficulties  of banning indecent speech from access channels, but the First Amendment  does not permit this sort of ill fit between a law restricting speech  and the interest it is said to serve.


177
Second, to the extent cable operators prohibit indecent programming on access channels, not only children but adults will be  deprived of it. The Government may not "reduce the adult population . .  . to [viewing] only what is fit for children." Butler v. Michigan, 352  U. S. 380, 383 (1957).  It matters not that indecent programming might  be available on the operator's other channels.  The Government has no  legitimate interest in making access channels pristine.  A  block-and-segregate requirement similar to Section(s) 10(b), but without  its constitutional infirmity of requiring persons to place themselves on  a list to receive programming, see ante, at 26-27, protects children  with far less intrusion on the liberties of programmers and adult  viewers than allowing cable operators to ban indecent programming from  access channels altogether.  When applying strict scrutiny, we will not  assume plausible alternatives will fail to protect compelling interests;  there must be some basis in the record, in legislative findings or  otherwise, establishing the law enacted as the least restrictive means. Sable Communications, supra, at 128-130.  Cf. Turner Broadcasting, 512  U. S., at ___-___ (slip op., at 40-45).  There is none here.


178
Sections 10(a) and (c) present a classic case of discrimination  against speech based on its content.  There are legitimate reasons why  the Government might wish to regulate or even restrict the speech at  issue here, but Section(s) 10(a) and 10(c) are not drawn to address  those reasons with the precision the First Amendment requires.

V.

179
Not only does the plurality fail to apply strictscrutiny, but its reasoning is unpersuasive on its own terms.


180
The plurality declares Section(s) 10(c) unconstitutional because  it interferes with local supervisory systems that "can set programming  policy and approve or disapprove particular programming services."  Ante, at 32-33. Replacing these local schemes with a cable operator veto  would, in the plurality's view, "greatly increase the risk that certain  categories of programming (say, borderline offensive programs) will not appear," ante, at 37.  Although the plurality terms these local schemes  "public/nonprofit programming control systems," ante, at 34, it does not  contend (nor does the record suggest) that any local board or access  center has the authority to exclude indecent programming, or to do  anything that would cast doubt on the status of public access channels  as public forums.  Cf. Agosta 88 (New York state law forbids editorial  control over public access programs by either the cable operator or the municipality); Comments of Hillsborough County Board of County Commissioners, FCC Record, at 2 (explaining county's inability to exclude indecent programming).  Indeed, "[m]ost access centers surveyed  do not prescreen at all, except, as in [two named localities], a high  speed run-through for technical quality."  P. Aufderheide, Public Access  Cable Programming, Controversial Speech, and Free Expression (1992),  reprinted in App. 61, 68.  As the plurality acknowledges, the record  indicates no response  to indecent programming by local access centers   (whether they prescreen or not) other than "requiring indemnification by programmers, certification of compliance with local standards, time  segregation, [and] adult content advisories," ante, at 33. Those are  measures that, if challenged, would likely survive strict scrutiny as  narrowly tailored to safeguard children.  If those measures, in the  words of the plurality, "normally avoid, minimize, or eliminate any  child-related problems concerning `patently offensive' programming" on  public access channels, ante, at 34, one is left to wonder why the cable  operator veto over leased access programming authorized in Section(s)  10(a) is constitutional even under the plurality's First Amendment analysis. Although I concur in its judgment that Section(s) 10(c) is  invalid, I cannot agree with the plurality's reasoning.


181
In regard to Section(s) 10(a), the plurality's analysis there undermines its claims of faithfulness to our First Amendment jurisprudence and close attention to context.


182
First, the plurality places some weight on there being "nothing  to stop `adults who feel the need' from finding [indecent] programming  elsewhere, say, on tape or in theaters," or on competitive services like  direct broadcast television, ante, at 15.  The availability of  alternative channels of communication may be relevant when we are  assessing content-neutral time, place, and manner restrictions, Ward v. Rock Against Racism, 491 U. S. 781, 791, 802 (1989), but the fact that  speech can occur elsewhere cannot justify a content-based restriction,  Southeastern Promotions, 420 U. S., at 556; Schneider v. State (Town of  Irvington), 308 U. S. 147, 163 (1939).


183
Second, the plurality suggests the permissive nature of Section(s) 10(a) at least does not create the same risk of exclusion as  a total ban on indecency.  Ante, at 15.  This states the obvious, but  the possibility the Government could have imposed more draconian  limitations on speech never has justified a lesser abridgment.  Indeed,  such an argument almost  always is available; few of our First Amendment  cases involve outright bans on speech.  See, e. g., Forsyth County v.  Nationalist Movement, 505 U. S. 123, 130-137 (1992) (broad discretion of  county administrator to award parade permits and to adjust permit fee according to content of speech violates First Amendment); Bantam Books,  Inc. v. Sullivan, 372 U. S. 58 (1963) (informal threats to recommend  criminal prosecutions and  other pressure tactics by state morality  commission against book publishers violate the First Amendment).


184
Third, based on its own factual speculations, the plurality discounts the risks created by the law that operators will not run indecent programming on access channels.  The plurality takes "a glance  at the programming that cable operators allow on their own (non-access)  channels," and, espying some indecent programming there, supposes some  cable operators may be willing  to allow similar programs on leased  access channels.  Ante, at 15.  This sort of surmise, giving the  government the benefit of the doubt when it restricts speech, is an  unusual approach to the First Amendment, to put it mildly.  Worse, it  ignores evidence of industry structure that should cast doubt on the  plurality's sanguine view of the probable fate of programming considered "indecent" under Section(s) 10(a).  The plurality fails to note that,  aside from the indecency provisions of Section(s) 10 tacked on in a  Senate floor amendment, the 1992 Act strengthened the regulation of  leased access channels because it was feared cable operators would  exercise their substantial market power to exclude disfavored  programmers.  The congressional findings in the statute and the  conclusions of the Senate Committee on Commerce, Science, and  Transportation after  more than two years of hearings on the cable  market, see S. Rep. No. 102-92, pp. 3-4 (1991), are instructive. Leased  access channels had been underused since their inception in 1984, the  Senate Committee determined.  Id., at 30.  Though it recognized the  adverse economics of leased access for programmers may have  been one reason for the underutilization, the Committee found the obstinacy of  cable operators and their control over prices,  terms, and conditions  also were to blame.  Id., at 31.


185
"The cable operator is almost certain to have interests that clash with that of the programmer seeking to use leased access channels.  If their interests were similar, the operator would have been more than  willing to carry the programmer on regular cable channels.  The operator  thus has already decided for any number of reasons not to carry the  programmer.  For example, the operator may believe that the programmer  might compete with programming that the [operator] owns or controls.  To  permit the operator to establish the leased access rate thus makes  little sense."  Ibid.


186
Perhaps some operators will choose to show the indecent programming they now may banish if they can command a better price than  other access programmers are willing to pay.  In the  main, however,  leased access programs are the ones the cable operator, for competitive  reasons or otherwise, has no interest  in showing.  And because the cable  operator may put to his own commercial use any leased access capacity  not taken by unaffiliated programmers, 47 U. S. C. Section(s) 532(b)(4), operators have little incentive to allow indecent programming if they  have excess capacity on leased access channels.


187
There is even less reason to think cable operators will choose  to show indecent programs on public access channels.  The operator is  not paid, or paid much, for transmitting programs on these channels;  public access programs may compete with the operator's own programs; the  operator will wish to avoid unwanted controversy; and, here as with  leased access channels, the operator may reclaim unused PEG capacity for  its own paid use, 47 U. S. C. Section(s) 531(d)(1).


188
In the 1992 Act, Congress recognized cable operators might want  to exclude unaffiliated or otherwise disfavored programmers from their  channels, but it granted operators discretion to do so in regard to but  a single category of speech.  The obvious consequence invited by the  discretion is exclusion.  I am not sure why the plurality would suppose  otherwise, or contend the practical consequences of Section(s) 10(a)  would be no worse for programmers than those flowing from the sort of  time-segregation requirement approved in Pacifica.  See ante, at 16.  Despite its claim of making "a more contextual assessment" of this case, ante, at 18, the plurality ignores a key difference of this case from  Pacifica.  There, the broadcaster wanted to air the speech in question;  here, the cable operator does not.  So the safe harbor of late-night  programming permitted by the FCC in Pacifica would likely promote  speech, whereas suppression will follow from Section(s) 10(a).

VI.

189
In agreement with the plurality's analysis of Section(s) 10(b)  of the Act, insofar as it applies strict scrutiny, I join Part III of  its opinion. Its position there, however, cannot be reconciled with  upholding Section(s) 10(a). In the plurality's view, Section(s) 10(b),  which standing alone would guarantee an indecent programmer some access  to a cable audience, violates the First Amendment, but Section(s) 10(a),  which authorizes exclusion of indecent programming from access channels  altogether, does not.  There is little to commend this logic or result.  I dissent from the judgment of the Court insofar as it upholds the constitutionality of Section(s) 10(a).


190
Justice Thomas, joined by the Chief Justice and Justice Scalia,  concurring in the judgment in part and dissenting in part.


191
I agree with the plurality's conclusion that Section(s) 10(a) is  constitutionally permissible, but I disagree with its conclusion that  we have failed to articulate how and to what extent the First Amendment  protects cable operators, programmers, and viewers from state and  federal regulation.  I think it is time we did so, and I cannot go along  with the plurality's assiduous attempts to avoid addressing that issue  openly.

I.

192
The text of the First Amendment makes no distinction between print, broadcast, and cable media, but we have done so.  In Red Lion  Broadcasting Co. v. FCC, 395 U. S. 367 (1969), we held that, in light of  the scarcity of broadcasting frequencies, the Government may require a  broadcast licensee "to share his frequency with others and to conduct  himself as a proxy or fiduciary with obligations to present those views  and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves."  Id., at 389.  We  thus endowed the public with a right of access "to social, political,  esthetic, moral, and other ideas and experiences."  Id., at 390.  That  public right left broadcasters with substantial, but not complete, First  Amendment protection of their editorial discretion.  See, e. g.,  Columbia Broadcasting System, Inc. v. Democratic National Committee, 412   U. S. 94, 117-118 (1973) ("A broadcast licensee has a large measure of journalistic freedom but not as large as that exercised by a newspaper").


193
In contrast, we have not permitted that level of government interference in the context of the print media.  In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), for instance, we invalidated a Florida statute that required newspapers to allow, free of  charge, a right of reply to political candidates  whose personal or  professional character the paper assailed.  We rejected the claim that  the statute was constitutional because it fostered speech rather than  restricted it, as well as a related claim that the newspaper could  permissibly be made to serve as a public forum.  Id., at 256-258.  We  also flatly rejected the argument that the newspaper's alleged media  monopoly could justify forcing the paper to speak in contravention of  its own editorial discretion.  Id., at 256.


194
Our First Amendment distinctions between media, dubious from their infancy,10 placed cable in a doctrinal wasteland in which regulators and cable operators alike could not be sure whether cable was  entitled to the substantial First Amendment protections afforded the  print media or was subject to the more  onerous obligations shouldered by  the broadcast media.  See Los Angeles v. Preferred Communications, Inc.,  476 U. S. 488, 496 (1986) (Blackmun, J., concurring) ("In assessing  First Amendment claims concerning cable access, the Court must determine  whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis").  Over time, however, we have drawn closer to recognizing  that cable operators should enjoy the same First Amendment rights as the  nonbroadcast media.


195
Our first ventures into the world of cable regulation involved  no claims arising under the First Amendment, and we addressed only the  FCC's regulatory authority over cable operators.11  Only in later  cases did we begin to address the level of First Amendment protection  applicable to cable operators.  In Preferred Communications, for  instance, when a cable operator challenged the City of Los Angeles'  auction process for a single cable franchise, we held that the cable operator had stated a First Amendment claim upon which relief could be  granted.  476 U. S., at 493.  We noted that cable operators communicate  various topics "through original programming or by exercising editorial  discretion over which stations or programs to include in [their]  repertoire."  Id., at 494.  Cf. FCC v. Midwest Video Corp. (Midwest  Video II), 440 U. S. 689, 707 (1979) ("Cable operators now share with  broadcasters a significant amount of editorial discretion regarding what  their programming will include").  But we then likened the operators' First Amendment interests to those of broadcasters subject to Red Lion's  right of access requirement.  476 U. S., at 494-495.


196
Five years later, in Leathers v. Medlock, 499 U. S. 439 (1991),  we dropped any reference to the relaxed scrutiny permitted by Red Lion.  Arkansas had subjected cable operators to the State's general sales tax,  while continuing to exempt newspapers, magazines, and scrambled  satellite broadcast television.  Cable operators, among others,  challenged the tax on First Amendment grounds, arguing that the State  could not discriminatorily apply the tax to some, but not all, members  of the press.  Though we ultimately upheld the tax scheme because it was  not content-based, we agreed with the operators that they enjoyed the  protection of the First Amendment.  We found that cable operators engage  in speech by providing news, information, and entertainment to their  subscribers and that they are "part of the `press.'"  Id., at 444.


197
Two Terms ago, in Turner Broadcasting System, Inc. v. FCC, 512  U. S. __ (1994), we stated expressly what we had implied in Leathers:  The Red Lion standard does not apply to cable television.  512 U. S., at  __ (slip op., at 12) ("[T]he rationale for applying a less rigorous  standard of First Amendment scrutiny to broadcast regulation . . . does  not apply  in the context of cable regulation"); id., at __ (slip op., at 14) ("[A]pplication of the more relaxed standard of scrutiny adopted in  Red Lion and the other broadcast cases is inapt when determining the  First Amendment validity of cable regulation"). While Members of the  Court disagreed about whether the must-carry rules imposed by Congress  were content-based, and therefore subject to strict scrutiny, there was  agreement that cable operators are generally entitled to much the same  First Amendment protection as the print media.  But see id., at __ (slip  op., at 1) (Stevens, J., concurring in part and concurring in judgment) ("Cable operators' control of essential facilities  provides a basis for  intrusive regulation that would be inappropriate and perhaps  impermissible for other communicative  media").


198
In Turner, by adopting much of the print paradigm, and by rejecting Red Lion, we adopted with it a considerable body of precedent  that governs the respective First Amendment rights of competing  speakers.  In Red Lion, we had legitimized consideration of the public  interest and emphasized the rights of viewers, at least in the abstract.  Under that view, "[i]t is  the right of the viewers and listeners, not  the right of the broadcasters, which is paramount."  395 U. S., at 390.  After Turner, however, that view can no longer be given any credence in the cable context.  It is the operator's right that is preeminent. If  Tornillo and Pacific Gas & Electric Co. v. Public Utilities Comm'n of  Cal., 475 U. S. 1 (1986), are applicable, and I think they are, see  Turner, supra, at __ (slip op., at 8-9) (O'Connor, J., concurring in  part and dissenting in part), then, when there is a conflict, a  programmer's asserted right to transmit over an operator's cable system  must give way  to the operator's editorial discretion.  Drawing an  analogy to the print media, for example, the author of a book is  protected  in writing the book, but has no right to have the book sold in  a particular book store without the store owner's consent.  Nor can  government force the editor of a collection of essays to print other  essays on the same subject.


199
The Court in Turner found that the FCC's must-carry rules implicated the First Amendment rights of both cable operators and cable  programmers.  The rules interfered with the operators' editorial  discretion by forcing them to carry broadcast programming that they  might not otherwise carry, and they interfered with the programmers'  ability to compete for space on the operators' channels.  Id., at __   (slip op., at 19-20); id., at __ (slip op., at 1-2) (O'Connor, J.,  concurring in part and dissenting in part).  We implicitly recognized in  Turner that the programmer's right to compete for channel space is  derivative of, and subordinate to, the operator's editorial discretion.  Like a free-lance writer seeking a paper in which to publish newspaper  editorials, a programmer is protected in searching for an outlet for  cable programming, but has no free-standing First Amendment right to  have that programming transmitted.  Cf. Miami Herald Publishing Co. v.  Tornillo, 418 U. S., at 256-258.  Likewise, the rights of would-be  viewers are derivative of the speech rights of operators and  programmers. Cf. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976) ("Freedom of speech presupposes a willing speaker.  But where a speaker exists, . . . the  protection afforded is to the communication, to its source and to its  recipients both").  Viewers have a general right to see what a willing  operator transmits, but, under Tornillo and Pacific Gas, they certainly  have no right to force an unwilling operator to speak.


200
By recognizing the general primacy of the cable operator's editorial rights over the rights of programmers and viewers, Turner  raises serious questions about the merits of petitioners' claims.  None  of the petitioners in these cases are cable operators; they are all  cable viewers or access programmers or their representative  organizations. See Brief for Petitioners in No. 95-124, pp. 5-6; Brief  for Petitioners New York Citizens Committee for Responsible Media et  al., in No. 95-227, p. 3; Brief for Petitioners Alliance for Community  Media et al., in No. 95-227, p. 3.  It is not intuitively obvious that  the First Amendment protects the interests petitioners assert, and  neither petitioners nor the plurality have adequately explained the source or justification of those asserted rights.


201
Justice Breyer's detailed explanation of why he believes it is  "unwise and unnecessary," ante, at 11, to choose a standard against  which to measure petitioners' First Amendment claims largely disregards  our recent attempt in Turner to define that standard.12  His attempt  to distinguish Turner on the ground that it did not involve "the effects  of television viewing on children," ante, at 18, is meaningless because  that factual distinction has no bearing on the existence and ordering of  the free speech rights asserted in these cases.


202
In the process of deciding not to decide on a governing standard, Justice Breyer purports to discover in our cases an expansive,  general principle permitting government to "directly regulate speech to  address extraordinary problems, where its regulations are appropriately  tailored to resolve those problems without imposing an unnecessarily  great restriction on speech." Ante, at 11.  This heretofore unknown  standard is facially subjective and openly invites balancing of asserted  speech interests to a degree not ordinarily permitted.  It is true that the standard I endorse lacks the "flexibility" inherent in the plurality's balancing approach, ante, at 9, but that relative rigidity  is required by our precedents and is not of my own making.


203
In any event, even if the plurality's balancing test were an appropriate standard, it could only be applied to protect speech interests that, under the circumstances, are themselves protected by the  First Amendment.  But, by shifting the focus to the balancing of  "complex" interests, ante, at 13, Justice Breyer never explains whether   (and if so, how) a programmer's ordinarily unprotected interest in  affirmative transmission of its programming acquires constitutional  significance on leased and public access channels.  See ante, at 12   ("interests of programmers in maintaining access channels"); ante, at 13 ("interests served by the access requirements").  It is that question,  left unanswered by the plurality, to which I now turn.

II.
A.

204
In 1984, Congress enacted 47 U. S. C. Section(s) 532(b), which  generally requires cable operators to reserve approximately 10 to 15  percent of their available channels for commercial lease to  "unaffiliated persons." Operators were prohibited from "exercis[ing] any  editorial control" over these  leased access channels.  Section(s)  exercise of the cable operators' editorial control and essentially  permitted operators to censor privately programming that the "operator  reasonably believes describes or depicts sexual or excretory activities  or  organs in a patently offensive manner."  Section(s) 532(h).


205
Since 1984, federal law has also permitted local franchise authorities to require cable operators to set aside certain channels for  "public, educational, or governmental use" (PEG channels),13  Section(s) 531(a), but unlike the leased access provisions, has not  directly required operators to do so.  As with leased access, Congress  generally prohibited cable operators from exercising "any editorial  control" over public access channels, but provided that operators could  prohibit the transmission of obscene programming.  Section(s) 531(e);  see Section(s) 544(d).  Section 10(c) of the 1992 Act broadened the operators' editorial control and instructed the FCC to promulgate regulations enabling a cable operator to ban from its public access  channels "any programming which contains obscene material, sexually  explicit conduct, or material soliciting or promoting unlawful conduct."  Note following 47 U. S. C. Section(s) 531. The FCC subsequently  promulgated regulations in its Second Report and Order, 8 FCC Rcd 2638   (1993).  The FCC interpreted Congress' reference to "sexually explicit  conduct" to mean that the programming must be indecent, and its  regulations therefore permit cable operators to ban indecent programming  from their public access channels.  Id., at 2640.


206
As I read these provisions, they provide leased and public access programmers with an expansive and federally enforced statutory  right to transmit virtually any programming over access channels,  limited only by the bounds of decency.  It is no doubt true that once  programmers have been given, rightly or  wrongly, the ability to speak on  access channels, the First Amendment continues to protect programmers  from certain government intrusions.  Certainly, under our current  jurisprudence, Congress could not impose a total ban on the transmission  of indecent programming.  See Sable Communications  of Cal., Inc. v. FCC,  492 U. S. 115, 127 (1989) (striking down total ban on indecent dial-a-porn messages).  At the same time,  however, the Court has not  recognized, as entitled to full constitutional protection, statutorily  created speech rights that directly conflict with the constitutionally  protected private speech rights of another person or entity.14  We  have not found a First Amendment violation in statutory schemes that   substantially expand the speech opportunities of the person or entity  challenging the scheme.


207
There is no getting around the fact that leased and public access are a type of forced speech.  Though the constitutionality of  leased and public access channels is not directly at issue in these  cases,15 the position adopted by the Court in Turner ineluctably  leads to the conclusion that the federal access requirements are subject  to some form of heightened scrutiny. See Turner, 512 U. S., at __ (slip  op., at 38) (citing Ward v. Rock Against Racism, 491 U. S. 781 (1989);  United States v. O'Brien, 391 U. S. 367 (1968)).  Under that view, content-neutral governmental impositions on an operator's editorial  discretion may be sustained only if they further an important  governmental interest unrelated to the suppression of free speech and  are no greater than is essential to further the asserted interest.  See  id., at 377.  Of course, the analysis I joined in Turner would have  required strict scrutiny.  512 U. S., at __ (slip op., at 7-9)  (O'Connor, J., concurring in part and dissenting in part).


208
Petitioners must concede that cable access is not a constitutionally required entitlement and that the right they claim to  leased and public access has, by definition, been governmentally created  at the expense of cable operators' editorial discretion.  Just because  the Court has apparently accepted, for now, the proposition that the  Constitution permits some degree of forced speech in the cable context  does not mean that the beneficiaries of a government-imposed forced  speech program enjoy additional First Amendment protections beyond those normally afforded to purely private speakers.


209
We have said that "[i]n the realm of private speech or expression, government regulation may not favor one speaker over another," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S.  __, __ (1995) (slip op., at 7), but this principle hardly supports  petitioners' claims, for, if they do anything, the leased and public  access requirements favor access programmers over cable operators.  I do  not see Section(s) 10(a) and (c) as independent restrictions on  programmers, but as intricate parts of the leased and public access  restrictions imposed by Congress (and state and local governments) on  cable operators.  The question petitioners pose is whether Section(s)  Turner strongly suggests that the proper question is whether the leased  and public access requirements (with Section(s) 10(a) and (c)) are improper restrictions on the operators' free speech rights.  In my view,  the constitutional presumption properly runs in favor of the operators'  editorial discretion, and that discretion may  not be burdened without a  compelling reason for doing so. Petitioners' view that the  constitutional presumption favors their asserted right to speak on  access channels is directly contrary to Turner and our established  precedents.


210
It is one thing to compel an operator to carry leased and public  access speech, in apparent violation of Tornillo, but it is another  thing altogether to say that the First Amendment forbids Congress to  give back part of the operators' editorial discretion, which all  recognize as fundamentally protected, in favor of a broader access  right.  It is no answer to say that leased and public access are content  neutral and that Section(s) 10(a) and (c) are not, for that does not  change the fundamental fact, which petitioners never address, that it is  the operators' journalistic freedom that is infringed, whether the  challenged restrictions be content neutral or content based.


211
Because the access provisions are part of a scheme that restricts the free speech rights of cable operators, and expands the  speaking opportunities of access programmers, who have no underlying  constitutional right to speak through the cable medium, I do not believe  that access programmers can challenge the scheme, or a particular part  of it, as an abridgment of their "freedom of speech."  Outside the  public forum doctrine, discussed infra, at 15-21, government  intervention that grants access programmers an opportunity to speak that  they would not otherwise enjoy-and which does not directly limit  programmers' underlying speech rights-cannot be an abridgement of the  same programmers' First Amendment rights, even if the new speaking opportunity is content-based.


212
The permissive nature of Section(s) 10(a) and (c) is important  in this regard. If Congress had forbidden cable operators to carry  indecent programming on leased and public access channels, that law  would have burdened the programmer's right, recognized in Turner, supra,  at __ (slip op., at 20), to compete for space on an operator's system.  The Court would undoubtedly strictly scrutinize such a law.  See Sable,  492 U. S., at 126.  But Section(s) 10(a) and (c) do not burden a programmer's right to seek access for its indecent programming on an  operator's system.  Rather, they merely restore part of the editorial  discretion an operator would have absent government regulation without  burdening the programmer's underlying speech rights.16


213
The First Amendment challenge, if one is to be made, must come  from the party whose constitutionally protected freedom of speech has  been burdened.  Viewing the federal access requirements as a whole, it  is the cable operator, not the access programmer,17 whose speech  rights have been infringed. Consequently, it is the operator, and not  the programmer, whose speech has arguably been infringed by these  provisions.  If Congress passed a law forcing bookstores to sell all  books published on the subject of congressional politics, we would undoubtedly entertain a claim by bookstores that this law violated the  First Amendment principles established in Tornillo  and Pacific Gas.  But  I doubt that we would similarly find merit in a claim by publishers of  gardening books that the law violated their First Amendment rights.  If  that is so, then the petitioners in these cases cannot reasonably assert  that the Court should strictly scrutinize the provisions at issue in a  way that maximizes their ability to speak over leased and public access  channels and, by necessity, minimizes the operators' discretion.

B.

214
It makes no difference that the leased access restrictions may  take the form of common carrier obligations.  See Midwest Video II, 440  U. S., at 701; see also Brief for Federal Respondents 23.  But see 47 U.  regulation as a common carrier or utility by reason of providing any  cable service").  That the leased access provisions may be described in  common-carrier terms does not demonstrate that access programmers have  obtained a First Amendment right to transmit programming over leased  access channels.  Labeling leased access a common carrier scheme  has no real First Amendment consequences.  It simply does not follow from common carrier status that cable operators may not,  with Congress'  blessing, decline to carry indecent speech on their leased access  channels.  Common carriers are private entities and may, consistent with  the First Amendment, exercise  editorial discretion in the absence of a  specific statutory prohibition. Concurring in Sable, Justice Scalia  explained: "I  note that while we hold the Constitution prevents Congress  from  banning indecent speech in this fashion, we do not hold that the Constitution requires public utilities to carry it."  492 U. S., at 133.  See also Information Providers' Coalition for Defense of First Amendment  v. FCC, 928 F. 2d 866, 877 (CA9 1991) ("[A] carrier is free under the  Constitution to terminate service to dial-a-porn operators altogether");  Carlin Communications, Inc. v. Mountain States Telephone and Telegraph  Co., 827 F. 2d 1291, 1297 (CA9 1987) (same), cert. denied, 485 U. S.  1029 (1988); Carlin Communication, Inc. v. Southern Bell Telephone and Telegraph Co., 802 F. 2d 1352, 1357 (CA11 1986) (same).


215
Nothing about common carrier status per se constitutionalizes the asserted interests of the petitioners in  these cases, and Justice  Kennedy provides no authority for his assertion that common carrier  regulations "should be reviewed under the same standard as content-based  restrictions on speech  in a public forum."  Ante, at 19.  Whether viewed  as the creation of a common carrier scheme or simply as a regulatory  restriction on cable operators' editorial discretion, the net effect is  the same: operators' speech rights are restricted to make room for  access programmers.  Consequently, the fact that the leased access provisions impose a form of common carrier obligation on cable operators  does not alter my view that Congress' leased access scheme burdens the  constitutionally protected speech rights of cable operators in order to  expand the speaking opportunities of access programmers, but does not  independently burden the First Amendment rights of programmers or  viewers.

C.

216
Petitioners argue that public access channels are public fora in  which they have First Amendment rights to speak and that Section(s)  rights.  Brief for Petitioners New York Citizens Committee for  Responsible Media et al., in No. 95-227, pp. 8-23; Brief for Petitioners  Alliance for Community Media et al., in No. 95-227, pp. 32-35.  Though I  agree that content-based prohibitions in a public forum "must be  narrowly drawn to effectuate a compelling state interest," Perry Ed.  Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 46 (1983), I do not   agree with petitioners' antecedent assertion that public access channels are public fora.


217
We have said that government may designate public property for  use by the public as a place for expressive activity and that, so  designated, that property becomes a public forum.  Id., at 45.  Petitioners argue that "[a] local government does exactly that by  requiring as a condition of franchise approval that the cable operator  set aside a public access channel for the free use of the general public  on a first-come, first-served, nondiscriminatory basis."18  Brief for  Petitioners Alliance for Community Media et al., in No. 95-227, p. 33.  I disagree.


218
Cable systems are not public property.19  Cable systems are privately owned and privately managed, and petitioners point to no case  in which we have held that government may designate private property as  a public forum.  The public forum doctrine is a rule governing claims of  "a right of access to public property," Perry Ed. Assn., supra, at 44,  and has never been thought to extend beyond property generally  understood to belong to the government. See International Soc. for  Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 681 (1992) (evidence   of expressive activity at rail stations, bus stations, wharves, and  Ellis Island was "irrelevant to public fora analysis, because sites such  as bus and rail terminals traditionally have  had private ownership" (emphasis in original)).  See also id.,  at 678 (public forum is "government" or "public" property); Perry Ed. Assn., supra, at 45 (designated public forum "consists of public property").


219
Petitioners point to dictum in Cornelius v. NAACP Legal Defense  & Educ. Fund, 473 U. S. 788, 801 (1985), that a public forum may consist  of "private property dedicated to public use," but that statement has no  applicability here.  That statement properly refers to the common  practice of formally dedicating land for streets and parks when  subdividing real estate for developments.  See 1A C. Antieau & J.  Antieau, Antieau's Local Government Law Section(s) 9.05 (1991); 11A E.  McQuillin, Law of Municipal Corporations Section(s) 33.03 (3d ed. 1991).  Such dedications may or may not transfer title, but they at least create enforceable public easements in the dedicated land.  1A Antieau,  supra, Section(s) 9.15; 11A McQuillin, supra, Section(s) 33.68.  To the  extent that those easements create a property interest in the underlying  land, it is that government-owned property interest that may be  designated as a public forum.


220
It may be true, as petitioners argue, that title is not dispositive of the public forum analysis, but the nature of the regulatory restrictions placed on cable operators by local franchising  authorities are not consistent with the kinds of governmental property  interests we have said may be formally dedicated as public fora.  Our  public forum cases have involved property in which the government has  held at least some formal easement or other property interest permitting  the government to treat the property as its own in designating the  property as a public forum.  See, e. g., Hague v. CIO, 307 U. S. 496,  515 (1939) (streets and parks); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972) (sidewalks adjoining public school); Southeastern  Promotions, Ltd. v. Conrad, 420 U. S. 546, 555 (1975) (theater under  long-term lease to city); Carey v. Brown, 447 U. S. 455, 460-462 (1980)  (sidewalks in front of private residence); Widmar v. Vincent, 454 U. S.  263, 267-268 (1981) (university facilities that had been opened for  student activities). That is simply not true in these cases.  Pursuant  to federal and state law, franchising authorities require cable operators to create public access channels, but nothing in the record  suggests that local franchising authorities take any formal easement or  other property interest in those channels that would permit the  government to designate that property as a public forum.20


221
Similarly, assertion of government control over private property  cannot justify designation of that property as a public forum.  We have  expressly stated that neither government ownership nor government  control will guarantee public access to property.  See Cornelius, supra,  at 803; Postal Service v. Council of Greenburgh Civic Assns., 453 U. S.  114, 129 (1981). Government control over its own property or private  property in which it has taken a cognizable property interest, like the theater in Southeastern Promotions, is consistent with designation of a  public forum.  But we have never even hinted that regulatory control,  and particularly direct regulatory control over a private entity's First  Amendment speech rights, could justify creation of a public forum.  Properly construed, our cases have limited the government's ability to  declare a public forum to property the government owns outright, or in which the government holds a significant property interest consistent  with the communicative purpose of the forum to be designated.


222
Nor am I convinced that a formal transfer of a property interest  in public access channels would suffice to permit a local franchising  authority to designate those channels as a public forum.  In no other  public forum that we have recognized does a private entity, owner or  not, have the obligation not only to permit another to speak, but to  actually help produce and then transmit the message on that person's  behalf.  Cable operators regularly retain some level of managerial and  operational control over their public access channels, subject only to  the requirements of federal, state, and local law and the franchise agreement.  In more traditional public fora, the government shoulders  the burden of administering and enforcing the openness of the expressive  forum, but it is frequently a private citizen, the operator, who  shoulders that burden for public access channels.  For instance, it is  often the operator  who must accept and schedule an access programmer's  request for  time on a channel.21  And, in many places, the operator  is actually obligated to provide production facilities and production assistance to persons seeking to produce access programming.22 Moreover, unlike a park picketer, an access programmer cannot transmit  its own message.  Instead, it is the  operator who must transmit, or  "speak," the access programmer's  message.  That the speech may be  considered the operator's is driven home by 47 U. S. C. Section(s) 559,  which authorizes a fine of up to $10,000 and two years' imprisonment for  any person who "transmits over any cable system any matter which is  obscene."  See also Section(s) 558 (making operators immune for all  public access programming, except that which is obscene).23


223
Thus, even were I inclined to view public access channels as public property, which I am not, the numerous additional obligations  imposed on the cable operator in managing and operating the public  access channels convince me that these channels share few, if any, of  the basic characteristics of a public forum.  As I have already  indicated, public access requirements, in my view, are a regulatory  restriction on the exercise of cable operators' editorial discretion,  not a transfer of a sufficient property interest in the channels to  support a designation of that property as a public forum.  Public access channels are not public fora, and, therefore, petitioners' attempt to  redistribute cable speech rights in their favor must fail. For this  reason, and the other reasons articulated earlier, I would sustain both  Section(s) 10(a) and Section(s) 10(c).

III.

224
Most sexually oriented programming appears on premium or pay-per-view channels that are naturally blocked from nonpaying customers by market forces, see First Report and Order, 8 FCC Rcd 998,  1001, n. 20 (1993), and it is only governmental intervention in the  first instance that requires access channels, on which indecent  programming may appear, to be made part of the basic cable package.  Section 10(b) does nothing more than adjust the nature of  government-imposed leased access requirements in order to emulate the  market forces that keep indecent programming primarily on premium  channels (without permitting the operator to charge subscribers for that  programming).


225
Unlike Section(s) 10(a) and (c), Section(s) 10(b) clearly implicates petitioners' free speech rights.  Though Section(s) 10(b) by  no means bans indecent speech, it clearly places content-based  restrictions on the transmission of private speech by requiring cable  operators to block and segregate indecent programming that the operator  has agreed to carry.  Consequently, Section(s) 10(b) must be subjected  to strict scrutiny and can be upheld only if it furthers a compelling  governmental interest by the least restrictive means available.   See  Sable, 492 U. S., at 126.  The parties agree that Congress has a  "compelling interest in protecting the physical and psychological  well-being of minors" and that its interest "extends to shielding minors  from the influence of [indecent speech] that is not obscene by adult standards."  Ibid.  See Ginsberg v. New York, 390 U. S. 629, 639 (1968)  (persons "who have th[e] primary responsibility for children's  well-being are  entitled to the support of laws designed to aid discharge  of that responsibility").  Because Section(s) 10(b) is narrowly tailored  to achieve that well-established compelling interest, I would uphold it.  I therefore dissent from the Court's decision to the contrary.


226
Our precedents establish that government may support parental authority to direct the moral upbringing of their children by imposing a  blocking requirement as a default position.  For example, in Ginsberg,  in which we upheld a State's ability to prohibit the sale of indecent  literature to minors, we pointed out that the State had simply imposed  its own default choice by noting that "the prohibition against sales to   minors does not bar parents who so desire from purchasing the magazines  for their children."  390 U. S., at 639.  Likewise, in Sable we set  aside a complete ban on indecent dial-a-porn messages in part because  the FCC had previously imposed certain default rules intended to prevent  access by minors, and there was no evidence that those rules were  ineffective.  492 U. S., at 128-130.24


227
The Court strikes down Section(s) 10(b) by pointing to alternatives, such as reverse-blocking and lockboxes, that it says are  less restrictive than segregation and blocking.  Though these methods  attempt to place in parents' hands the ability to  permit their children  to watch as little, or as much, indecent programming as the parents  think proper, they do not effectively support parents' authority to  direct the moral upbringing of their children.  See First Report and  Order, 8 FCC Rcd, at 1000-1001.25  The FCC recognized that  leased-access programming comes "from a wide variety of independent  sources, with no single editor controlling [its] selection and  presentation."  Id., at 1000.  Thus, indecent programming on leased  access channels is "especially likely to be shown randomly or  intermittently between non-indecent programs." Ibid.  Rather than being  able to simply block out certain channels at certain times, a subscriber  armed with only a lockbox must carefully monitor all leased-access programming and constantly reprogram the lockbox to keep out undesired  programming.  Thus, even assuming that cable subscribers generally have  the technical proficiency to properly operate a lockbox, by no means a  given, this distinguishing characteristic of leased access channels  makes lockboxes and reverse-blocking largely ineffective.


228
Petitioners argue that Section(s) 10(b)'s segregation and blocking scheme is not sufficiently narrowly tailored because it requires the viewer's "written consent," 47 CFR Section(s) 76.701(b)  (1995); it permits the cable operator 30 days to respond to the written  request for access, Section(s) 76.701(c); and it is impermissibly  underinclusive because it reaches only leased access programming.


229
Relying on Lamont v. Postmaster General, 381 U. S. 301 (1965),  petitioners argue that forcing customers to submit a written request for  access will chill dissemination of speech. In Lamont, we struck down a  statute barring the mail delivery of "`communist political propaganda'"  to persons who had not requested the Post Office in writing to deliver  such propaganda. Id., at 307.  The law required the Post Office to keep  an official list of persons desiring to receive communist political propaganda, id., at 303, which, of course, was intended to chill demand  for such materials.  Here, however, petitioners' allegations of an  official list "of those who wish to watch the `patently offensive'  channel," as the majority puts it, ante, at 24, are pure hyperbole.  The  FCC regulation implementing Section(s) 10(b)'s written request  requirement, 47 CFR Section(s) 76.701(b) (1995), says nothing about the  creation of  a list, much less an official government list.  It requires  only that the cable operator receive written consent.  Other statutory provisions make clear that the cable operator may not share that, or any  other, information with any other person, including the Government.  Section 551 mandates that all personally identifiable information  regarding a subscriber be kept strictly confidential and further  requires cable operators to destroy any information that is no longer  necessary for the purpose for which it was collected.  47 U. S. C.  Section(s) 551.  None of the circumstances that figured prominently in  Lamont exists here.


230
Though petitioners cannot reasonably fear the specter of an officially published list of leased-access indecency viewers, it is true  that the fact that a subscriber is unblocked is ascertainable, if only  by the cable operator.  I find no legally significant stigma in that  fact.  If a segregation and blocking scheme is generally permissible,  then a subscriber's access request must take some form, whether written  or oral, and I see nothing nefarious in Congress' choice of a written,  rather than an oral, consent.26  Any request for access to blocked programming-by whatever method-ultimately will make the subscriber's  identity knowable.27  But this is hardly the kind of chilling effect  that implicates the First Amendment.


231
Though making an oral request for access, perhaps by telephone,  is slightly less bothersome than making a written request, it is also  true that a written request is less subject to fraud "by a determined  child." Ante, at 29.  Consequently, despite the fact that an oral  request is slightly less restrictive in absolute terms, it is also less  effective in supporting parents' interest in denying enterprising, but parentally unauthorized, minors access to blocked programming.


232
The segregation and blocking requirement was not intended to be  a replacement for lockboxes, V-chips, reverse-blocking, or other  subscriber-initiated measures.  Rather, Congress enacted in Section(s)  10(b) a default setting under which a subscriber receives no blocked  programming without a written request.  Thus, subscribers who do not  want the blocked programming are protected, and subscribers who do want  it may request access. Once a subscriber requests access to blocked  programming, however, the subscriber remains free to use other methods,  such as lockboxes, to regulate the kind of programming shown on those channels in that home.28  Thus, petitioners are wrong to portray Section(s) 10(b) as a highly ineffective method of screening individual  programs, see Brief for Petitioners in No. 95-124, p. 43, and the  majority is similarly wrong to suggest that a person cannot "watch a  single program . . . without letting the `patently offensive' channel in  its entirety invade his household for days, perhaps weeks, at a time,"  ante, at 24; see  ante, at 26.  Given the limited scope of Section(s)  10(b) as a default setting, I see nothing constitutionally infirm about  Congress' decision to permit the cable operator 30 days to unblock or reblock the segregated channel.


233
Petitioners also claim that Section(s) 10(b) and its implementing regulations are impermissibly underinclusive because they  apply only to leased access programming.  In R. A. V. v. St. Paul, 505  U. S. 377 (1992), we rejected the view that a content-based restriction  is subject to a separate and independent "underinclusiveness"  evaluation.  Id., at 387 ("In our view, the First Amendment imposes not  an `underinclusiveness' limitation but a `content discrimination'  limitation upon a State's prohibition of proscribable speech").   See  also ante, at 28 ("Congress need not deal with every problem at once").   Also, petitioners' claim is in tension with the constitutional principle that Congress may not impose a remedy that is more restrictive than  necessary to satisfy its asserted  compelling interest and with their own  arguments pressing that very principle.  Cf. R. A.  ., supra, at 402   (White, J., concurring in judgment) (though the "overbreadth doctrine  has the redeeming virtue of attempting to avoid the chilling of  protected expression," an underbreadth challenge "serves no desirable  function").


234
In arguing that Congress could not impose a blocking requirement  without also imposing that requirement on public access and nonaccess  channels, petitioners fail to allege, much less argue, that doing so  would further Congress' compelling interest.  While it is true that  indecent programming appears on nonaccess channels, that programming  appears almost exclusively on "per-program or per channel services that  subscribers must specifically request in advance, in the same manner as  under the blocking approach mandated by section 10(b)."  First Report  and Order, 8 FCC Rcd, at 1001, n. 20.29  In contrast to these premium services, leased access channels are part of the basic cable package,  and the segregation and blocking scheme Congress imposed does nothing  more than convert sexually oriented leased access programming into a  free "premium service."30  Similarly, Congress' failure to impose  segregation and blocking requirements on public access channels may have  been based on its judgment that those channels presented a less severe  problem of unintended indecency-it appears that most of the anecdotal  evidence before Congress involved leased access channels.  Congress may  also have simply decided to permit the States and local franchising authorities to address the issue of indecency  on public access channels  at a local level, in accordance with the local rule policies evinced in  47 U. S. C. Section(s) 531.   In any event, if the segregation and  blocking scheme established by Congress is narrowly tailored to achieve  a compelling governmental interest, it does not become constitutionally  suspect merely because Congress did not extend the same restriction to  other channels on which there was less of a perceived problem (and  perhaps no compelling interest).


235
The United States has carried its burden of demonstrating that  Section(s) 10(b) and its implementing regulations are narrowly tailored  to satisfy a compelling governmental interest. Accordingly, I would  affirm the judgment of the Court of Appeals in its entirety.  I  therefore concur in the judgment upholding Section(s) 10(a) and  respectfully dissent from that portion of the judgment striking down



*
 Together with No. 95-227, Alliance for Community Media et al. v. Federal Communications Commission et al., also on certiorari to  the same court.


1
 Our precedents recognize that reasonable restraints may be placed on access to certain well-regulated fora.  There is no reason why  cable television should be treated differently.  See Rosenberger v.  Rector and Visitors of Univ. of Va., 515 U. S. ___ (1995) (slip. op., at  8); id., at ___ (slip op., at 31-34, 39) (Souter, J., dissenting); see  also Widmar v. Vincent, 454 U. S. 263, 278 (1981) (Stevens, J.,  concurring in judgment) ("I should think it obvious, for example, that  if two groups of 25 students requested the use of a room at a particular  time-one to view Mickey Mouse cartoons and the other to rehearse an  amateur performance of Hamlet-the First Amendment would not require that the room be reserved for the group that submitted its application first"); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 394 (1969)  (approving access requirement limited to "matters of great public  concern").


2
 For purposes of this case, canons of constitutional  avoidance require us to assume that the Government has the authority to impose leased access requirements on cable operators.  Indeed, no party  to this litigation contends to the contrary.  Because petitioners'  constitutional claim depends for its success on the constitutionality of  the underlying access rights, they certainly cannot complain if we  decide the case on that assumption.


3
 Although in 1984 Congress essentially barred cable  operators from exercising editorial control over PEG channels, see 47 U.  S. C. Section(s) 531(e), Section 10(c) does not merely restore the status quo ante.  Section 10(c) authorizes private operators to exercise  editorial discretion over "indecent" programming even if the franchising  authority objects.  Under the pre-1984 practice, local franchising  authorities were free to exclude operators from exercising any such  control on PEG channels.


4
 See, e.g., Blasi, The Pathological Perspective and the  First Amendment, 85 Colum. L. Rev. 449, 474 (1985) (arguing that "courts . . . should place a premium on confining the range of discretion left  to future decisionmakers who will be called upon to make judgments when  pathological pressures are most intense").


5
 Our indecency cases since Pacifica have likewise turned as  much on the context or medium of the speech as on its content.  See, e.g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 127-128   (1989) (distinguishing Pacifica in part on the ground that the  telephonic medium at issue was less intrusive than broadcast  television); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 47, 54   (1986) (permitting zoning regulation of adult theatres based on their  "secondary effects"); Bethel School Dist. No. 403 v. Fraser, 478 U. S.  675, 685-686 (1986) (upholding restriction on indecent speech in a  public school).


6
 Our analysis of another important strand of the present  case, the right of owners of the means of communication to refuse to serve as conduits for messages they dislike, has been equally contextual. Compare Red Lion Broadcasting Co. v. FCC, 395 U. S. 367   (1969) (upholding a right-of-reply requirement in the broadcasting  context), with Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241   (1974) (rejecting such a requirement for print journalism).


7
 See, e.g., Lynch, Speedier Access: Cable and Phone  Companies Compete, at http://www.usatoday.com/life/cyber/bonus/cb006.htm (June 17, 1996) (describing cable modem technology); Gateway 2000 ships  first Destination big screen TV-PCs, at http://www.gw2k.com/corpinfo/press/1996/destin.htm (April 29, 1996)  (describing computer with both cable TV and Internet reception  capability).


8
 See, e.g., Sunstein, On Analogical Reasoning, 106 Harv. L.  Rev. 741, 786 (1993) (observing that analogical reasoning permits "greater flexibility . . . over time"); Sullivan, Post-Liberal Judging:  The Roles of Categorization and Balancing, 63 U. Colo. L. Rev. 293, 295,  n. 6 (1992) (noting that "once the categories are established . . . the  categorical mode leads to briefs and arguments that concentrate much  more on threshold characterization than on comparative analysis").


9
 The Telecommunications Act of 1996, Pub. L. 104-104,  Section(s) 506(a), (b), 110 Stat. 136, 137, permits a cable operator to refuse to transmit any leased or public access program or portion thereof which contains "obscenity, indecency, or nudity."  The constitutionality of the 1996 amendments, to the extent they differ from  the provisions here, is not before us.


10
 See Turner Broadcasting System, Inc. v. FCC, 512 U. S. __,  __, and n. 5 (1994) (slip op., at 13-14, and n. 5).


11
 See United States v. Southwestern Cable Co., 392 U. S. 157 (1968); United States v. Midwest Video Corp., 406 U. S. 649 (1972) (Midwest Video I).  Our decisions in Southwestern Cable and Midwest  Video I were purely regulatory and gave no indication whether, or to  what extent, cable operators were protected by the First Amendment.


12
 Curiously, the plurality relies on "changes taking place  in the law, the technology, and the industrial structure, relating to telecommunications," ante, at 11, to justify its avoidance of traditional First Amendment standards.  If anything, as the plurality  recognizes, ante, at 15, those recent developments-which include the  growth of satellite broadcast programming and the coming influx of video  dialtone services-suggest that local cable operators have little or no monopoly power and create no programming bottleneck problems, thus effectively negating the primary justifications for treating cable operators differently from other First Amendment speakers.


13
 Because indecent programming on PEG channels appears  primarily on public access channels, I will generally refer to PEG  access as public access.


14
 Even in PruneYard Shopping Center v. Robins, 447 U. S. 74, 87-88 (1980), for instance, we permitted California's compelled access  rule only because it did not burden or conflict with the mall owner's  own speech.


15
 Following Turner, some commentators have questioned the constitutionality of leased and public access.  See, e. g., J. Goodale,  All About Cable Section(s) 6.04[5], pp. 6-38.6 to 6-38.7 (1995) ("In the  wake of the Supreme Court's decision in the Turner Broadcasting case,  the constitutionality of both PEG access and leased access requirements  would seem open to searching reexamination. . . . To the extent that an  access requirement . . . is considered to be a content-based restriction on the speech of a cable system operator, it seems clear, after Turner  Broadcasting, that such a requirement would be found to violate the  operator's First Amendment rights"); Ugland, Cable Television, New  Technologies and the First Amendment After Turner Broadcasting System,  Inc. v. F. C. C., 60 Mo. L. Rev. 799, 837 (1995) ("PEG requirements are  content-based on their face because they force cable system operators to  carry certain types of programming" (emphasis in original)); Perritt,  Access to the National Information Infrastructure, 30 Wake Forest L.  Rev. 51, 66 (1995) (leased access and public access requirements "were called into question in Turner").  Moreover, as Justice O'Connor noted  in Turner, Congress' imposition of common carrier-like obligations on  cable operators may raise Takings Clause questions.  512 U. S., at __   (slip op., at 11-12) (concurring in part and dissenting in part).  Such  questions are not at issue here.


16
 The plurality, in asserting that Section(s) 10(c) "does  not restore to cable operators editorial rights that they once had," ante, at 31, mistakes inability to exercise a right for absence of the  right altogether.  That cable operators "have not historically exercised  editorial control" over public access channels, ibid., does not diminish  the underlying right to do so, even if the operator's forbearance is  viewed as a contractual quid pro quo for the local franchise.


17
 Turner recognized that the must-carry rules burden  programmers who must compete for space on fewer channels.  512 U. S., at  __ (slip op., at 12). Leased access requirements may also similarly  burden programmers who compete for space on nonaccess channels.


18
 In Rosenberger v. Rector and Visitors of Univ. of Va., 515  U. S. __, __ (1995) (slip op., at 8-9), we found the university's student activity fund, a nontangible channel of communication, to be a  limited public forum, but generally we have been quite reluctant to find  even limited public fora in such channels of communication.  Cornelius  v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 804 (1985)  (Combined Federal Campaign not a limited public forum); Perry Ed. Assn.  v. Perry Local Educators' Assn., 460 U. S. 37, 47-48 (1983) (school mail facilities not a limited public forum).  In any event, we certainly have  neverz held that public access channels are a fully designated public  forum that entitles programmers to freedom from content-based  distinctions.


19
 See G. Shapiro, P. Kurland, & J. Mercurio, "CableSpeech":  The Case for First Amendment Protection 119 (1983) ("Because cable systems are operated by private rather than governmental entities, cable  television cannot be characterized as a public forum and, therefore,  rights derived from the public forum doctrine cannot be asserted by  those who wish to express themselves on cable systems").


20
 Petitioners' argument that a property right called "the  right to exclude" has been transferred to the government is not persuasive. Though it is generally true that, excepting Section(s) over public access channels, that prohibition is not absolute. Section  531(e) provides that the prohibition on the exercise of editorial  discretion is subject to Section(s) 544(d)(1), which permits operators  and franchising authorities to ban obscene or other constitutionally  unprotected speech.  Some states, however, have not permitted exercise  of that authority.  See, e. g., Minn. Stat. Section(s) 238.11 (1994)  (prohibiting any censorship of leased or public access programming); N.  Y. Pub. Serv. Law Section(s) 229 (McKinney Supp. 1996) (same).  At any  rate, the Court has never recognized a public forum based on a property interest "taken" by regulatory restriction.


21
 See D. Brenner, M. Price & M. Meyerson, Cable Television  and Other Nonbroadcast Video Section(s) 6.04[7] (1996) (hereinafter Brenner).  Some States and local governments have formed nonprofit organizations to perform some of these functions.  See D. C. Code Ann.  Section(s) 43-1829(a) (1990 and Supp. 1996) (establishing Public Access  Corporation "for the purpose of facilitating and governing  nondiscriminatory use" of public access channels).


22
 See, e. g., 47 U. S. C. Section(s) 541(a)(4)(B)  (authorizing franchise authorities to "require adequate assurance that  the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support"); Conn. Gen. Stat. Section(s) 16-331c (1995) (requiring cable  operators to contribute money or resources to cable advisory councils  that monitor compliance with public access standards); id., Section(s)  regulations "establishing minimum standards for the equipment supplied  . . . for the community access programming"); D. C. Code Ann. Section(s)  shall provide use of the production facilities and production assistance  at an amount set forth in the request for proposal"); Minn. Stat. Section(s) 238.084.3(b) (1994) (requiring cable operators to "make readily available for public use at least the minimal equipment necessary for the production of programming and playback of prerecorded  programs"). That these activities are "partly financed with public  funds," ante, at 32, does not diminish the fact that these activities  are also "partly financed" with the operator's money.  See Brenner Section(s) 6.04[7], at 6-48 ("Frequently, access centers receive money  and equipment from the cable operator"); id., Section(s) 6.04[3][c], at  6-41 (discussing cable operator financing of public access channels and  questioning its constitutionality as "forced subsidization of speech").


23
 Petitioners argue that Section(s) 10(d) of the 1992 Act,  47 U. S. C. Section(s) 558, which lifts cable operators' immunity for obscene speech, forces or encourages operators to ban indecent speech.  Because Congress could directly impose an outright ban on obscene  programming, see Sable Communications of Cal., Inc. v. FCC, 492 U. S.  115, 124 (1989), petitioners' encouragement argument is meritless.


24
 After Sable, Congress quickly amended the statute and the  FCC again promulgated those "safe harbor" rules.  Those rules were later  upheld against a First Amendment challenge.  See Dial Information Servs.  Corp. of N. Y. v. Thornburgh, 938 F. 2d 1535 (CA2 1991), cert. denied,  502 U. S. 1072 (1992); Information Providers' Coalition for Defense of  First Amendment v. FCC, 928 F. 2d 866 (CA9 1991).  In promulgating  regulations pursuant to Section(s) 10(b), the FCC was well aware that  the default rules established for dial-a-porn had been upheld and  asserted that similar rules were necessary for leased access channels.  See First Report and Order, 8 FCC Rcd 998, 1000 (1993) ("The blocking scheme upheld in these cases is, in all relevant respects, identical to  that required by section 10(b)"); ibid. ("[J]ust as it did in section  223 relating to `dial-a-porn' telephone services-Congress has now  determined that mandatory, not voluntary, blocking is essential").


25
 In the context of dial-a-porn, courts upholding the FCC's mandatory blocking scheme have expressly found that voluntary blocking  schemes are not effective.  See Dial Information Servs., supra, at 1542;  Information Providers' Coalition, supra, at 873-874.


26
 Because, under the circumstances of these cases, I see no constitutionally significant difference between a written and an oral  request to see blocked programming, I also see no relevant distinction  between Section(s) 10(b) and the blocking requirement enacted in the  1996 Act, on which the majority places so much reliance.  See ante, at  26-27.


27
 Indeed, persons who request access to blocked programming pursuant to 47 CFR Section(s) 76.701(c) (1995) are no more identifiable  than persons who subscribe to sexually oriented premium channels,  because those persons must specially request that premium service.


28
 The lockbox provision, originally passed in 1984, was unaffected by the 1992 Act and remains fully available to every subscriber.  47 U. S. C. Section(s) 544(d)(2).


29
 In examining the restrictions imposed by the 1996 Act, the majority is probably correct to doubt that "sex-dedicated channels are  all (or mostly) leased channels," ante, at 27, but surely the majority  does not doubt that most nonleased sex-dedicated channels are premium  channels that must be expressly requested. I thus disagree that the  provisions of the 1996 Act address a "highly similar problem."  Id., at  28.


30
 Unlike Congress' blocking scheme, and the market norm of requiring viewers to pay a premium for indecent programming, lockboxes  place a financial burden on those seeking to avoid indecent programming  on leased access channels. See 47 U. S. C. Section(s) 544(d)(2) ("[A]  cable operator shall provide (by sale or lease) a device by which the  subscriber can prohibit viewing of a particular cable service during  periods selected by that subscriber").


