Broadcast Radio and Television.

Because there are a lim-ited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to use 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.1150 Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting,1151 although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.1152

In certain respects, however, governmental regulation does implicate First Amendment values, and, in Red Lion Broadcasting Co. v. FCC, the Court upheld an FCC regulation that required broadcasters to afford persons an opportunity to reply if they were attacked on the air on the basis of their “honesty, character, integrity or like personal qualities,” or if they were legally qualified candidates and a broadcast editorial endorsed their opponent or opposed them.1153 In Red Lion, Justice White explained that “differences in the characteristics of [various] media justify differences in First Amendment standards applied to them.”1154 Thus, although everyone has a right 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.”1155 Furthermore, said Justice White, “[b]e-cause 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.”1156 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.”1157

In Columbia Broadcasting System v. Democratic National Committee,1158 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,1159 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’s 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,1160 the Court took the same general approach to governmental regulation of broadcasting, 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.”1161 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, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.”1162 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.”1163 Expression of editorial opinion was described as a “form of speech . . . that lies at the heart of First Amendment protection,”1164 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.”1165 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.1166 “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.”1167 The Court emphasized the “narrowness” of its holding, which “requires consideration of a host of variables.”1168 The use of more than “an occasional expletive,” the time of day of the broadcast, the likely audience, “and differences between radio, television, and perhaps closed-circuit transmissions” were all relevant in the Court’s view.1169

Footnotes

1150
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). [Back to text]
1151
NBC v. United States, 319 U.S. 190 (1943); Federal Radio Comm’n v. Nelson Bros. 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). [Back to text]
1152
“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). [Back to text]
1153
395 U.S. 367, 373 (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. [Back to text]
1154
395 U.S. at 386. [Back to text]
1155
395 U.S. at 389. [Back to text]
1156
395 U.S. at 390. [Back to text]
1157
395 U.S. at 392–93. [Back to text]
1158
412 U.S. 94 (1973). [Back to text]
1159
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). [Back to text]
1160
468 U.S. 364 (1984), holding unconstitutional § 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. [Back to text]
1161
468 U.S. at 380. The Court rejected the suggestion that only a “compelling” rather than “substantial” governmental interest can justify restrictions. [Back to text]
1162
468 U.S. at 385. [Back to text]
1163
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. [Back to text]
1164
468 U.S. at 381. [Back to text]
1165
468 U.S. at 383. [Back to text]
1166
FCC v. Pacifica Foundation, 438 U.S. 726 (1978). [Back to text]
1167
438 U.S. at 748–51. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. In Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 748 (1996), the Court noted that spectrum scarcity “has little to do with a case that involves the effects of television viewing on children.” [Back to text]
1168
438 U.S. at 750. See also id. at 742–43 (plurality opinion), and id. at 755–56 (Justice Powell concurring) (“The Court today 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.”). [Back to text]
1169
438 U.S. at 750. Subsequently, the FCC began to apply its indecency standard to fleeting uses of expletives in non-sexual and non-excretory contexts. The U.S. Court of Appeals for the Second Circuit found this practice arbitrary and capricious under the Administrative Procedure Act, but the Supreme Court disagreed and upheld the FCC policy without reaching the First Amendment question. FCC v. Fox Television Stations, Inc., 556 U.S. ___, No. 07–582 (2009). See also CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, 129 S. Ct. 2176 (2009) (invalidating, on non-constitutional grounds, a fine against CBS for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenths of a second during a Super Bowl halftime show). The Supreme Court vacated and remanded this decision to the Third Circuit for further consideration in light of FCC v. Fox Television Stations, Inc. Decisions regarding legislation to ban “indecent” expression in broadcast and cable media as well as in other contexts are discussed under “Non-obscene But Sexually Explicit and Indecent Expression,” infra. [Back to text]