39
can shape the structure of broadcasting to encourage a general diversity of viewpoints. Yet the
FCC is unable to show empirically that there in fact is a viable connection between ownership
policy and actual viewpoint diversity. Although the Court has recognized an interest in obtaining
diverse broadcasting viewpoints as a legitimate basis for the FCC to adopt measures designed to
increase the number of competing licensees and encourage licensees to present varied views on
issues of public concern, the Court, according to Justice O’Connor, has never upheld a measure
designed to amplify a distinct set of views or the views of a particular class of speakers.
93
Moreover, the dissenting opinion in another closely divided case, Turner Broadcasting v. FCC,
shows that at least four members of the Court believe that government regulation designed to
ensure access to a multiplicity of voices is based on content and is thus constitutionally suspect.
94
Justice O’Connor essentially suggested that if the FCC wanted to pursue diversity (given her
equal protection analysis, it’s doubtful she would even contemplate a category of “minority
programming”), the Commission should return to its old methods: develop an effective
ascertainment policy (mentioned supra at footnote 56), or evaluate applicants upon their ability to
provide, and commitment to offer, whatever programming the FCC believes would reflect
underrepresented viewpoints – but do so on a race-neutral basis.
95
Of course, there is widespread
agreement that these methods didn’t really work in the past. And the closer the FCC gets to
requiring broadcasters to program specific material the closer it gets to violating the First
Amendment’s content neutrality doctrine.
IV.
93
Id., at 617.
94
512 U.S. 622 (1994).
95
497 U.S. 547, 623 (1990).
Convention