Annotation 17 - First Amendment

Governmental Regulation of Communications Industries

As in the previous section, the governmental regulations here considered may have only the most indirect relation to freedom of expression, or may clearly implicate that freedom even though the purpose of the particular regulation is not to reach the content of the message. First, however, the judicially-formulated doctrine distinguishing commercial expression from other forms is briefly considered.

Commercial Speech .--In recent years, the Court's treatment of ''commercial speech'' has undergone a transformation, from total nonprotection under the First Amendment to qualified protection. The conclusion that expression proposing a commercial transaction is a different order of speech was arrived at almost casually in Val entine v. Chrestensen, 1 in which the Court upheld a city ordinance prohibiting distribution on the street of ''commercial and business advertising matter,'' as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city's refusal of certain docking facilities. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free. 2 The doctrine lasted in this form for more than twenty years.

''Commercial speech,'' the Court has held, is protected ''from unwarranted governmental regulation,'' although its nature makes such communication subject to greater limitations than can be imposed on expression not solely related to the economic interests of the speaker and its audience. 3 Overturning of this exception in free expression doctrine was accomplished within a brief span of time in which the Justices haltingly but then decisively moved to a new position. Reasserting the doctrine at first in a narrow five-to-four decision, the Court sustained the application of a city's ban on employment discrimination to bar sex-designated employment advertising in a newspaper. 4 Granting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, found the placing of want-ads in newspapers to be ''classic examples of commercial speech,'' devoid of expressions of opinions with respect to issues of social policy; the ad ''did no more than propose a commercial transaction.'' But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal. 5  

Next, the Court overturned a conviction under a state statute making it illegal, by sale or circulation of any publication, to encourage or prompt the obtaining of an abortion, as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another State and detailing the assistance that would be provided state residents in going to and obtaining abortions in the other State. 6 The Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the State could not prevent its residents from obtaining abortions in the other State or punish them for doing so.

Then, all these distinctions were swept away as the Court voided a statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. 7 Accepting a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value as to be entitled to protection. Consumers' interests in receiving factual information about prices may even be of greater value than political debate, but in any event price competition and access to information about it is in the public interest. State interests asserted in support of the ban, protection of professionalism and the quality of prescription goods, were found either badly served or not served by the statute. 8  

Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The Court voided a municipal ordinance which barred the display of ''For sale'' and ''Sold'' signs on residential lawns, purportedly so as to limit ''white flight'' resulting from a ''fear psychology'' that developed among white residents following sale of homes to nonwhites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event could not be achieved by restricting the free flow of truthful information. 9 Similarly, deciding a question it had reserved in the Virginia Pharmacy case, the Court held that a State could not forbid lawyers from advertising the prices they charged for the performance of routine legal services. 10 None of the proffered state justifications for the ban was deemed sufficient to overcome the private and societal interest in the free exchange of this form of speech. 11 Nor may a state categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems, 12 or prohibit an attorney from holding himself out as a certified civil trial specialist, 13 or prohibit a certified public accountant from holding herself out as a certified financial planner. Supp.28 However, a State has been held to have a much greater countervailing interest in regulating person-to-person solicitation of clients by attorneys; therefore, especially since in-person solicitation is ''a business transaction in which speech is an essential but subordinate component,'' the state interest need only be important rather than compelling. 14 The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally ''trained in the art of persuasion,'' and that the typical business executive client of a CPA is ''far less susceptible to manipulation'' than was the accident victim in Ohralik. Supp.29 To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection ''almost to nothing.'' Supp.30  

Moreover, a statute prohibiting the practice of optometry under a trade name was sustained because there was ''a significant possibility'' that the public might be misled through deceptive utilization of the same or similar trade names. 15 But a state regulatory commission prohibition of utility advertisements ''intended to stimulate the purchase of utility services'' was held unjustified by the asserted interests in energy consumption and avoidance of subsidization of additional energy costs by all consumers. 16  

While commercial speech is entitled to First Amendment protection, the Court has clearly held that it is not wholly undifferentiable from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties. 17 The Court has developed a four-pronged test to measure the validity of restraints upon commercial expression.

Under the first prong of the test as originally formulated, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if it does not accurately inform the public about lawful activity, it can be suppressed. 18  

Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. 19  

Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose. 20 Instead, the regulation must ''directly advance'' the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant. Supp.31  

Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive. 21 The Court has rejected the idea that a ''least restrictive means'' test is required. Instead, what is now required is a ''reasonable fit'' between means and ends, with the means ''narrowly tailored to achieve the desired objective.'' 22  

The ''reasonable fit'' standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc., Supp.32 striking down a city's prohibition ondistribution of ''commercial handbills'' through freestanding newsracks located on city property. The city's aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited ''commercial'' publications and permitted ''newspapers'' bore ''no relationship whatsoever'' to this legitimate interest. Supp.33 The city could not, the Court ruled, single out commercial speech to bear the full onus when ''all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.'' Supp.34 On the other hand, the Court upheld a federal law that prohibited broadcast of lottery advertisements by a broadcaster in a state that prohibits lotteries, while allowing broadcast of such ads by stations in states that sponsor lotteries. There was a ''reasonable fit'' between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries. Supp.35 The prohibition ''directly served'' the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state's lottery. Supp.36  

In a 1986 decision the Court asserted that ''the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.'' Supp.37 Subsequently, however, the Court has eschewed reliance on Posadas, Supp.38 and it seems doubtful that the Court would again embrace the broad principle that government may ban all advertising of an activity that it permits but has power to prohibit. Indeed, the Court's very holding in 44 Liquormart, Inc. v. Rhode Island, Supp.39 striking down the State's ban on advertisements that provide truthful information about liquor prices, is inconsistent with the general proposition. A Court plurality in 44 Liquormart squarely rejected Posadas, calling it ''erroneous,'' declining to give force to its ''highly deferential approach,'' and proclaiming that a state ''does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate.'' Supp.40 Four other Justices concluded that Posadas was inconsistent with the ''closer look'' that the Court has since required in applying the principles of Central Hudson. Supp.41  

The ''different degree of protection'' accorded commercial speech has a number of consequences. Somewhat broader times, places, and manner regulations are to be tolerated. Supp.42 The rule against prior restraints may be inapplicable, Supp.43 and disseminators of commercial speech are not protected by the overbreadth doctrine. Supp.44  

Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception. Supp.45 But even truthful, non-misleading commercial speech may be regulated, and the validity of such regulation is tested by application of the remaining prongs of the Central Hudson test. The test itself does not make further distinctions based on the content of the commercial message or the nature of the governmental interest (thatinterest need only be ''substantial''). Recent decisions suggest, however, that further distinctions may exist. Measures aimed at preserving ''a fair bargaining process'' between consumer and advertiser Supp.46 may be more likely to pass the test Supp.47 than regulations designed to implement general health, safety, or moral concerns. Supp.48 As the governmental interest becomes further removed from protecting a fair bargaining process, it may become more difficult to establish the absence of less burdensome regulatory alternatives and the presence of a ''reasonable fit'' between the commercial speech restriction and the governmental interest. Supp.49  

Taxation .--Disclaiming any intimation ''that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government,'' the Court voided a state two-percent tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week. 29 In the Court's view, the tax was analogous to the Eighteenth Century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population. 30 The tax at issue focused exclusively upon newspapers, it imposed a serious burden on the distribution of news to the public, and it appeared to be a discriminatorily selective tax aimed almost solely at the opposition to the state administration. 31 Combined with the standard that government may not impose a tax directly upon the exercise of a constitutional right itself, 32 these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues. 33  

Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. This is so, the Court explained in 1983, because such ''a powerful weapon'' to single out a small group carries with it a lessened political constraint than do those measures affecting a broader based constituency, and because ''differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression.'' 34 The state's interest in raising revenue is not sufficient justification for differential treatment of the press. Moreover, the Court refused to adopt a rule permitting analysis of the ''effective burden'' imposed by a differential tax; even if the current effective tax burden could be measured and upheld, the threat of increasing the burden on the press might have ''censorial effects,'' and ''courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation.'' 35  

Also difficult to justify is taxation that targets specific subgroups within a segment of the press for differential treatment. An Arkansas sales tax exemption for newspapers and for ''religious, professional, trade, and sports journals'' published within the state was struck down as an invalid content-based regulation of the press. 36 Entirely as a result of content, some magazines were treated less favorably than others. The general interest in raising revenue was again rejected as a ''compelling'' justification for such treatment, and the measure was viewed as not narrowly tailored to achieve other asserted state interests in encouraging ''fledgling'' publishers and in fostering communications.

The Court seemed to change course somewhat in 1991, upholding a state tax that discriminated among different components of the communications media, and proclaiming that ''differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas.'' 37  

The general principle that government may not impose a financial burden based on the content of speech underlay the Court's invalidation of New York's ''Son of Sam'' law, which provided that a criminal's income from publications describing his crime was to be placed in escrow and made available to victims of the crime. 38 While the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, the law was not narrowly tailored to those ends. It applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature (e.g., the Confessions of Saint Augustine and Thoreau's Civil Disobedience) ''that did not enable a criminal to profit from his crime while a victim remains uncompensated.'' 39  

Labor Relations .--Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB, 40 the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. ''The publisher of a news paper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. . . . The regulation here in question has no relation whatever to the impartial distribution of news.'' Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours. 41  

Antitrust Laws .--Resort to the antitrust laws to break up restraints on competition in the newsgathering and publishing field was found not only to present no First Amendment problem but to comport with government's obligation under that Amendment. Said Justice Black: ''It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.'' 42  

Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack, 43 even though it may be contended that freedom of the press may thereby be preserved. 44  

Radio and Television .--Because there are a limited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to utilize them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity. 45 Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting, 46 although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast. 47  

In certain respects, however, governmental regulation does implicate First Amendment values to a great degree; insistence that broadcasters afford persons attacked on the air an opportunity to reply and that they afford a right to reply from opposing points of view when they editorialize on the air was unanimously found to be constitutional. 48 In Red Lion, Justice White explained that differences in the characteristics of various media justify differences in First Amendment standards applied to them. 49 Thus, while there is a protected right of everyone to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee ''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.'' Further, said Justice White, ''[b]ecause of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.'' 50 The broadcasters had argued that if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice White thought this possibility ''at best speculative,'' but if it should materialize ''the Commission is not powerless to insist that they give adequate and fair attention to public issues.'' 51  

In Columbia Broadcasting System v. Democratic National Committee, 52 the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court's multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC, 53 the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress' power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.

In FCC v. League of Women Voters, 54 the Court took the same general approach to governmental regulation of public broadcast ing, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion. ''[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. . . . [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest.'' 55 However, the earlier cases were distinguished. ''[I]n sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, Sec. 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.'' 56 The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes--protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming ''vehicles for governmental propagandizing,'' and also keeping the stations ''from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints.'' 57 Expression of editorial opinion was described as a ''form of speech . . . that lies at the heart of First Amendment protection,'' 58 and the ban was said to be ''defined solely on the basis of . . . content,'' the assumption being that editorial speech is speech directed at ''controversial issues of public importance.'' 59 Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government's purposes.

Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated ''barnyard'' words, considered ''indecent'' but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities. 60 ''First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, 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 an intruder. . . . Second, broadcasting is uniquely accessible to children, even those too young to read. . . . The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting.'' 61 The purport of the Court's new theory is hard to divine; while its potential is broad, the Court emphasized the contextual ''narrowness'' of its holding, which ''requires consideration of a host of variables.'' 62 Time of day of broadcast, the likely audience, the differences between radio, television, and perhaps closed- circuit transmissions were all relevant in the Court's view. It may be, then, that the case will be limited in the future to its particular facts; yet, the pronunciation of a new theory sets in motion a tendency the application of which may not be so easily cabined.

Governmentally Compelled Right of Reply to Newspapers .--However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper. 64 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, while desirable, ''is not mandated by the Constitution,'' while freedom is. The compulsion exerted by government on a newspaper to print that which it would not otherwise print, ''a compulsion to publish that which 'reason tells them should not be published,''' runs afoul of the free press clause. 65  

Regulation of Cable Television .--The Court has recognized that cable television ''implicates First Amendment interests,'' since a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion indetermining which stations to include in its offering. Supp.50 Moreover, ''settled principles of . . . First Amendment jurisprudence'' govern review of cable regulation; cable is not limited by ''scarce'' broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting. Supp.51 Cable does, however, have unique characteristics that justify regulations that single out cable for special treatment. Supp.52 The Court in Turner Broadcasting System v. FCC Supp.53 upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these ''must-carry'' requirements ''distinguish between speakers in the television programming market,'' they do so based on the manner of transmission and not on the content the messages conveyed, and hence are ''content neutral.'' Supp.54 The regulations could therefore be measured by the ''intermediate level of scrutiny'' set forth in United States v. O'Brien. Supp.55 Two years later, however, a splintered Court could not agree on what standard of review to apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area Educational Telecommunications Consortium v. FCC, Supp.56 found it unnecessary to determine whether strict scrutiny or some lesser standard applies, since the restriction was deemed invalid under any of the alternative tests. There was no opinion of the Court on the other two holdings in the case, Supp.57 and a plurality Supp.58 rejected assertions that public forum analysis, Supp.59 or a rule giving cable operators' editorial rights ''general primacy'' over the rights of programmers and viewers, Supp.60 should govern.


[Footnote 1]   316 U.S. 52 (1942). See also Breard v. City of Alexandria, 341 U.S. 622 (1951). The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff'd per curiam, 405 U.S. 1000 (1972).

[Footnote 2] Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474 -75 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 265 -66 (1964), motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 -02 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved.

[Footnote 3] Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561 (1980).

[Footnote 4] Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973).

[Footnote 5] Id. at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563 -64 (1980).

[Footnote 6] Bigelow v. Virginia, 421 U.S. 809 (1975).

[Footnote 7] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Justice Rehnquist dissented. Id. at 781.

[Footnote 8] Id. at 763-64 (consumers' interests), 764-65 (social interest), 766-70 (justifications for the ban).

[Footnote 9] Linmark Ass'n v. Township of Willingboro, 431 U.S. 85 (1977).

[Footnote 10] Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Chief Justice Burger and Justices Powell, Stewart, and Rehnquist dissented. Id. at 386, 389, 404.

[Footnote 11] Id. at 368-79. See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the State could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints).

[Footnote 12] Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988). Shapero was distinguished in Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995), a 5-4 decision upholding aprohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. The ban struck down in Shapero was far broader, both in scope and in duration, the Court explained, and was not supported, as Florida's was, by findings describing the harms to be prevented by the ban. DissentingJustice Kennedy disagreed that there was a valid distinction, pointing out the Court's previous reliance on the mode of communication (in-person solicitation versus mailings) as ''mak[ing] all the difference.'' 115 S. Ct. at 2382 (quoting Shapero, 486 U.S. at 475).

[Footnote 13] Peel v. Illinois Attorney Registration and Disciplinary Comm'n, 496 U.S. 91 (1990).

[Footnote 28 (1996 Supplement)] Ibanez v. Florida Bd. of Accountancy, 114 S. Ct. 2084 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfuly listing her CPA credentials in advertising for her law practice).

[Footnote 14] Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). But compare In re Primus, 426 U.S. 412 (1978). The distinction between in- person and other attorney advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (''print advertising . . . in most cases . . . will lack the coercive force of the personal presence of the trained advocate'').

[Footnote 29 (1996 Supplement)] Edenfield v. Fane, 507 U.S. 761, 775 (1993).

[Footnote 30 (1996 Supplement)] Id. at 1803.

[Footnote 15] Friedman v. Rogers, 440 U.S. 1 (1979).

[Footnote 16] Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980). See also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980) (voiding a ban on utility's inclusion in monthly bills of inserts discussing controversial issues of public policy). However, the linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

[Footnote 17] Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 -72 n.24 (1976); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455 -56 (1978). It is, of course, important to develop distinctions between commercial speech and other speech for purposes of determining when broader regulation is permissible. The Court's definitional statements have been general, referring to commercial speech as that ''proposing a commercial transaction,'' Ohralik v. Ohio State Bar Ass'n, supra, or as ''expression related solely to the economic interests of the speaker and its audience.'' Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561 (1980). It has simply viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as ''inextricably intertwined with otherwise fully protected speech.'' Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a ''Tupperware'' party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989).

[Footnote 18] Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 563 , 564 (1980). Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973).

[Footnote 19] Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 564 , 568-69 (1980). The Court deemed the State's interests to be clear and substantial. The pattern here is similar to much due process and equal protection litigation as well as expression and religion cases in which the Court accepts the proffered interests as legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC's exclusive use of word ''Olympic'' is substantial); Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (government's interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state restrictions on lotteries. ''Unlike the situation in Edge Broadcasting,'' the Coors Court explained, ''the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders.'' 115 S. Ct. at 1591. However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. For deferential treatment of the governmental interest, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto Rico's ''substantial'' interest in discouraging casino gambling by residents justifies ban on ads aimed at residents even though residents may legally engage in casino gambling, and even though ads aimed at tourists are permitted).

[Footnote 20] Id. at 569. The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), where the restraints were deemed indirect or ineffectual; Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government's interest in curbing strength wars among brewers, given the inconsistencies and ''overall irrationality'' of the regulatory scheme); Edenfield v. Fane, 507 U.S. 761 (1993) (Florida's ban on in-person solicitation by certified publicaccountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients).

[Footnote 31 (1996 Supplement)] United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) (''this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity'').

[Footnote 21] Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 565 , 569-71 (1980). This test is, of course, the ''least restrictive means'' standard. Shelton v. Tucker, 364 U.S. 479, 488 (1960). In Central Hudson, the Court found the ban more extensive than was necessary to effectuate the governmental purpose. And see Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), where the Court held that the governmental interest in not interfering with parental efforts at controlling children's access to birth control information could not justify a ban on commercial mailings about birth control products; ''[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox,'' id. at 74; Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (there are less intrusive alternatives--e.g., direct limitations on alcohol content of beer--to prohibition on display of alcohol content on beer label). Note, however, that in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987), the Court applied the test in a manner deferential to Congress: ''the restrictions [at issue] are not broader than Congress reasonably could have determined to be necessary to further these interests.''

[Footnote 22] Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). In a 1993 opinion the Court elaborated on the difference between ''reasonable fit'' and least restrictive alternative. ''A regulation need not be 'absolutely the least severe that will achieve the desired end,' but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the 'fit' between ends and means is reasonable.'' City of Cincinnati v. DiscoveryNetwork, Inc., 507 U.S. 410, 417 n.13 (1993).

[Footnotes 23-28] Deleted in 1996 Supplement.

[Footnote 32 (1996 Supplement)] 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), decided the same Term, relying onthe ''directly advance'' third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants.

[Footnote 33 (1996 Supplement)] Id. at 1514.

[Footnote 34 (1996 Supplement)] Id. at 1515. The Court also noted the ''minute'' effect of removing 62 ''commercial'' newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 1510.

[Footnote 35 (1996 Supplement)] United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).

[Footnote 36 (1996 Supplement)] Id. at 2704.

[Footnote 37 (1996 Supplement)] Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345-46 (1986). For discussion of the case, see P. Kurland, Posadas de Puerto Rico v. Tourism Company: '''Twas Strange, 'Twas Passing Strange; 'Twas Pitiful, 'Twas Wondrous Pitiful,'' 1986 Sup. Ct. Rev. 1.

[Footnote 38 (1996 Supplement)] In Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (invalidating a federal ban on revealing alcoholcontent on malt beverage labels), the Court rejected reliance on Posadas, pointing out that the statement in Posadas had been made only after a determination that theadvertising could be upheld under Central Hudson. The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding through application of Central Hudson principles a ban on broadcast of lottery ads.

[Footnote 39 (1996 Supplement)] 116 S. Ct. 1495 (1996).

[Footnote 40 (1996 Supplement)] 116 S. Ct. at 1511-14 (opinion of Stevens, joined by Justices Kennedy, Thomas, and Ginsburg). TheStevens opinion also dismissed the Posadas ''greater-includes-the-lesser argument'' as ''inconsistent with both logic and well-settled doctrine,'' pointing out that theFirst Amendment ''presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.'' Id. at 1512.

[Footnote 41 (1996 Supplement)] 116 S. Ct. at 1522 (concurring opinion of O'Connor, joined by Chief Justice Rehnquist and by JusticesSouter and Breyer).

[Footnote 42 (1996 Supplement)] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976); Batesv. State Bar of Arizona, 433 U.S. 350, 384 (1977). But in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93-94 (1977), the Court refused to accept a times, places,and manner defense of an ordinance prohibiting ''For Sale'' signs on residential lawns. First, ample alternative channels of communication were not available, and second,the ban was seen rather as a content limitation.

[Footnote 43 (1996 Supplement)] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976);Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S. 557, 571 n.13 (1980).

[Footnote 44 (1996 Supplement)] Bates v. State Bar of Arizona, 433 U.S. 350, 379-81 (1977); Central Hudson Gas & Electric Co. v. PublicService Comm'n, 477 U.S. 557, 565 n.8 (1980).

[Footnote 45 (1996 Supplement)] Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977); Ohralik v. Ohio State Bar Ass'n, 436 U.S.447, 456 (1978). Requirements that advertisers disclose more information than they otherwise choose to are upheld ''as long as [they] are reasonably related to the State'sinterest in preventing deception of consumers,'' the Court explaining that ''[t]he right of a commercial speaker not to divulge accurate information regarding his services is not. . . a fundamental right'' requiring strict scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney's contingent fees ad mention that unsuccessful plaintiffs might still be liable for court costs).

[Footnote 46 (1996 Supplement)] 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507 (1996) (opinion of Justice Stevens, joined byJustices Kennedy and Ginsburg).

[Footnote 47 (1996 Supplement)] See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 465 (1978) (upholding ban on in-personsolicitation by attorneys due in part to the ''potential for overreaching'' when a trained advocate ''solicits an unsophisticated, injured, or distressed lay person'').

[Footnote 48 (1996 Supplement)] Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (upholding federal law supporting state interest in protecting citizens from lottery information) and Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2379 (1995) (upholding a 30-day ban on targeted, direct-mailsolicitation of accident victims by attorneys, not because of any presumed susceptibility to overreaching, but because the ban ''forestall[s] the outrage and irritation with the. . . legal profession that the [banned] solicitation . . . has engendered'') with Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (striking down federal statute prohibitingdisplay of alcohol content on beer labels) and 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996) (striking down state law prohibiting display of retailprices in ads for alcoholic beverages).

[Footnote 49 (1996 Supplement)] Justice Stevens has criticized the Central Hudson test because it seemingly allows regulation of anyspeech propounded in a commercial context regardless of the content of that speech. ''[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech's potential to mislead.'' Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1595 (1995) (concurring opinion). The Justice repeated these views in 1996: ''when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.'' 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507 (1996) (a portion of the opinion joined by Justices Kennedy and Ginsburg).

[Footnote 29] Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).

[Footnote 30] Id. at 245-48.

[Footnote 31] Id. at 250-51. Grosjean was distinguished on this latter basis in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983).

[Footnote 32] Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944) (license taxes upon Jehovah's Witnesses selling religious literature invalid).

[Footnote 33] Cf. City of Corona v. Corona Daily Independent, 115 Cal. App. 2d 382, 252 P.2d 56 (1953), cert. den., 346 U.S. 833 (1953) (Justices Black and Douglas dissenting). And see Cammarano v. United States, 358 U.S. 498 (1959) (no First Amendment violation to deny business expense tax deduction for expenses incurred in lobbying about measure affecting one's business); Leathers v. Medlock, 499 U.S. 439 (1991) (no First Amendment violation in applying general gross receipts tax to cable television services while exempting other communications media).

[Footnote 34] Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983) (invalidating a Minnesota use tax on the cost of paper and ink products used in a publication, and exempting the first $100,000 of such costs each calendar year; Star & Tribune paid roughly two-thirds of all revenues the state raised by the tax). The Court seemed less concerned, however, when the affected group within the press was not so small, upholding application of a gross receipts tax to cable television services even though other segments of the communications media were exempted. Leathers v. Medlock, 499 U.S. 439 (1991).

[Footnote 35]   460 U.S. at 588 , 589.

[Footnote 36] Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).

[Footnote 37] Leathers v. Medlock, 499 U.S. 439, 453 (1991) (tax applied to all cable television systems within the state, but not to other segments of the communications media).

[Footnote 38] Simon & Schuster v. New York Crime Victims Bd., 112 S. Ct. 501 (1991).

[Footnote 39] 112 S. Ct. at 511.

[Footnote 40]   301 U.S. 103, 132 (1937).

[Footnote 41] Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

[Footnote 42] Associated Press v. United States, 326 U.S. 1, 20 (1945).

[Footnote 43] Lorain Journal Co. v. United States, 342 U.S. 143 (1951) (refusal of newspaper publisher who enjoyed a substantial monopoly to sell advertising to persons also advertising over a competing radio station violates antitrust laws); United States v. Radio Corporation of America, 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); United States v. Greater Buffalo Press. Inc., 402 U.S. 549 (1971) (monopolization of color comic supplements). See also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding FCC rules prospectively barring, and in some instances requiring divesting to prevent, the common ownership of a radio or television broadcast station and a daily newspaper located in the same community).

[Footnote 44] Citizen Publishing Co. v. United States, 394 U.S. 131 (1969) (pooling arrangement between two newspapers violates antitrust laws; First Amendment argument that one paper will fail if arrangement is outlawed rejected). In response to this decision, Congress enacted the Newspaper Preservation Act to sanction certain joint arrangements where one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C. Sec. Sec. 1801-1804.

[Footnote 45] NBC v. United States, 319 U.S. 190 (1943); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375 -79, 387-89 (1969); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 798 -802 (1978).

[Footnote 46] NBC v. United States, 319 U.S. 190 (1943); Federal Radio Comm. v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266 (1933); FCC v. Pottsville, 309 U.S. 134 (1940); FCC v. ABC, 347 U.S. 284 (1954); Farmers Union v. WDAY, 360 U.S. 525 (1958).

[Footnote 47] ''But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views or upon any other capricious basis. If it did, or if the Commission by these regulations proposed a choice among applicants upon some such basis, the issue before us would be wholly different.'' NBC v. United States, 319 U.S. 190, 226 (1943).

[Footnote 48] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). ''The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, . . . .'' Id. at 369. The two issues passed on in Red Lion were integral parts of the doctrine.

[Footnote 49] Id. at 386.

[Footnote 50] Id. at 388-90.

[Footnote 51] Id. at 392-93.

[Footnote 52]   412 U.S. 94 (1973).

[Footnote 53]   453 U.S. 367 (1981). The dissent argued that the FCC had assumed, and the Court had confirmed it in assuming, too much authority under the congressional enactment. In its view, Congress had not meant to do away with the traditional deference to the editorial judgments of the broadcasters. Id. at 397 (Justices White, Rehnquist, and Stevens).

[Footnote 54]   468 U.S. 364 (1984), holding unconstitutional Sec. 399 of the Public Broadcasting Act of 1967, as amended. The decision was 5-4, with Justice Brennan's opinion for the Court being joined by Justices Marshall, Blackmun, Powell, and O'Connor, and with Justices White, Rehnquist (joined by Chief Justice Burger and by Justice White), and Stevens filing dissenting opinions.

[Footnote 55]   468 U.S. at 380 . The Court rejected the suggestion that only a ''compelling'' rather than ''substantial'' governmental interest can justify restrictions.

[Footnote 56]   468 U.S. at 385 .

[Footnote 57]   468 U.S. at 384 -85. Dissenting Justice Stevens thought that the ban on editorializing served an important purpose of ''maintaining government neutrality in the free marketplace of ideas.'' Id. at 409.

[Footnote 58]   468 U.S. at 381 .

[Footnote 59]   468 U.S. at 383 .

[Footnote 60] FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

[Footnote 61] Id. at 748-51. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. Justice Stevens' opinion was joined by Chief Justice Burger and Justices Rehnquist, Powell, and Blackmun. Justices Powell and Blackmun, id. 755, concurred also in a separate opinion, which reiterated the points made in the text. Justices Brennan and Marshall dissented with respect to the constitutional arguments made by Justices Stevens and Powell. Id. at 762. Justices Stewart and White dissented on statutory grounds, not reaching the constitutional arguments. Id. at 777.

[Footnote 62] Id. at 750. See also id. at 742-43 (plurality opinion), and id. 755-56 (Justice Powell concurring) (''Court reviews only the Commission's holding that Carlin's monologue was indecent 'as broadcast' at two o'clock in the afternoon, and not the broad sweep of the Commission's opinion.'').

[Footnote 63] Deleted in 1996 Supplement.

[Footnote 64] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).

[Footnote 65] Id. at 256. The Court also adverted to the imposed costs of the compelled printing of replies but this seemed secondary to the quoted conclusion. The Court has also held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. While a plurality opinion adhered to by four Justices relied heavily on Tornillo, there was not a Court majority consensus as to rationale. Pacific Gas & Elec. v. Public Utilities Comm'n, 475 U.S. 1 (1986). See also Hurley v. Irish-American Gay Group, 115 S. Ct. 2338 (1995) (state may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).

[Footnote 50 (1996 Supplement)] City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986) (leaving for futuredecision how the operator's interests are to be balanced against a community's interests in limiting franchises and preserving utility space); Turner Broadcasting System v.FCC, 114 S. Ct. 2445, 2456 (1994).

[Footnote 51 (1996 Supplement)] Turner Broadcasting System v. FCC, 114 S. Ct. 2445, 2456-57 (1994).

[Footnote 52 (1996 Supplement)] Id. at 2468 (referring to the ''bottleneck monopoly power'' exercised by cable operators in determining which networks and stations to carry, and to the resulting dangers posed to the viability of broadcast television stations). See also Leathers v. Medlock, 499 U.S. 439 (1991) (application of state gross receipts tax to cable industry permissible even though other segments of the communications media were exempted).

[Footnote 53 (1996 Supplement)] 114 S. Ct. 2445 (1994).

[Footnote 54 (1996 Supplement)] Id. at 2460. ''Deciding whether a particular regulation is content-based or content-neutral is not always a simple task,'' the Court confessed. Id. at 2459. Indeed, dissenting Justice O'Connor, joined by Justices Scalia, Ginsburg, and Thomas, viewed the rules as content-based. Id. at 2475-79.

[Footnote 55 (1996 Supplement)] 391 U.S. 367, 377 (1968). The Court remanded Turner for further factual findings relevant to the O'Brien test.

[Footnote 56 (1996 Supplement)] 116 S. Ct. 2374, 2391 (1996) (invalidating Sec. 10(b) of the Cable Television Consumer Protection andCompetition Act of 1992).

[Footnote 57 (1996 Supplement)] Upholding Sec. 10(a) of the Act, which permits cable operators to prohibit indecent material on leasedaccess channels; and striking down Sec. 10(c), which permits a cable operator to prevent transmission of ''sexually explicit'' programming on public access channels.

[Footnote 58 (1996 Supplement)] This section of Justice Breyer's opinion was joined by Justices Stevens, O'Connor, and Souter. 116 S. 2384.

[Footnote 59 (1996 Supplement)] Justice Kennedy, joined by Justice Ginsburg, advocated this approach. 116 S. Ct. at 2409, and took the plurality to task for its ''evasion of any clear legal standard.'' Id. at 2405.

[Footnote 60 (1996 Supplement)] Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, advocated this approach.