Constitutional substantial-evidence review? Lessons from the Supreme Court's Turner Broadcasting decisions

The Supreme Court's twin decisions in Turner Broadcasting System, Inc. v. FCC purport to set forth a new variant on First Amendment intermediate scrutiny, tied to the evidentiary foundation supporting Congress's decisions. But the Court's approach-''constitutional substantial-evidence'' review-is vague and confused, replete with contradictory invocations of deference and independent judgment, and impressionistic borrowing from administrative law. The Comment suggests that Turner is best understood as the Court's attempt to retain meaningful judicial scrutiny while still leaving Congress room to maneuver through the uncharted waters of telecommunications law. As applied in Turner II, however, the Court's near abdication of independent judgment leaves open the possibility of serious First Amendment harms.