The Evolution of the Intermediate Scrutiny Standard and the Rise of the Bottleneck "Rule" in the Turner Decisions

Document Type


Publication Date

June 2010

Publication Title

Communication Law and Policy


The so-called "bottleneck" standard or monopoly rule was developed by the Supreme Court of the United States in Turner Broadcasting v. FCC (1997) and allowed the Court to uphold legislation that favored the economic and speech interests of the broadcast industry over those of the cable industry. The Court's formation of the bottleneck standard is supported by a set of judicial opinions, including plurality decisions, that have adopted a revisionist reading of the intermediate scrutiny standard enunciated in United States v. O'Brien. This reading has resulted in a splintering of established precedent defining the O'Brien standard and supports the contention that law is a function of the analogies used, definitions applied and assumptions employed by those who have participated and prevailed in the adjudication process.