CRS Annotated Constitution
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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[p.1123]
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[p.1124]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[p.1125]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.[p.1126]
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.
The Court has ruled that cable television “implicates First Amendment interests,” since a franchisee communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering, but has left for future decision how these interests are to be balanced against a community’s interests in limiting franchises and preserving utility space.63
Supplement: [P. 1127, add to n.65:]
See also Hurley v. Irish–American Gay Group, 515 U.S. 557 (1995) (State may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).
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