Amdt1.7.12.2 Access and Editorial Discretion in Broadcast Media

In cases recognizing a general right to editorial discretion, the Supreme Court has held that government may not force a media outlet to provide space for views that are not its own.1 The Supreme Court has upheld access requirements for broadcast radio and television due to the attributes of the medium. In Red Lion Broadcasting Co. v. FCC, the Court upheld FCC regulations requiring a broadcaster to afford individuals an on-air opportunity to respond to personal attacks aired by the broadcaster.2 The Court justified the FCC regulations based on the unique characteristics of broadcast, which warranted government action to protect the free speech rights of “viewers and listeners.” 3 The Red Lion Court nonetheless observed that First Amendment problems might arise should government regulation constrain a station’s ability to carry programming reflecting its own views.4

The Court confronted such an issue in a subsequent decision. In FCC v. League of Women Voters of California, the Supreme Court struck down a total ban on editorializing by broadcast stations receiving public funding.5 In contrast to the regulations upheld in Red Lion, which the Court averred “left room for editorial discretion and simply required broadcast editors to grant others access to the microphone,” the ban in League of Women Voters “directly prohibit[ed]” stations from speaking on public issues.6 The Court recognized that restrictions permitted in broadcast but not other media—such as those upheld in Red Lion—have an effect of denying “the absolute freedom to advocate one’s own positions without also presenting opposing viewpoints” that other media enjoy.7 But the Court required that any such restrictions be “narrowly tailored to further a substantial government interest.” 8

Restrictions on Editorializing
, >https://constitution.congress.gov/browse/essay/amdt1-7-13-5/ALDE_00001277/.

Because of broadcast’s unique attributes, private parties have advanced the theory that the First Amendment does not merely permit, but requires a right of access to secure the free speech rights of the public. The Supreme Court’s cases addressing this theory affirm the general principle that broadcasters have a free speech interest in selecting their programming and that these interests are not outweighed by the public’s. In Columbia Broadcasting System, Inc. v. Democratic National Committee, political organizations argued that a broadcaster’s policy of not selling advertising time for editorial purposes violated the First Amendment and the Communications Act, which obliges broadcasters to act in the “public interest.” 9 The Supreme Court rejected this argument, holding that private parties had no right to purchase air time from broadcasters.10 The Court described broadcasters in language similar to Miami Herald Publishing Co. v. Tornillo, saying that broadcasters retain “journalistic discretion.” 11 Though it declined to require broadcasters to give political organizations access based on the language of the Communications Act, the Court left open the possibility that “at some future date Congress or the [Federal Communications Commission]—or the broadcasters—may devise some kind of limited right of access that is both practicable and desirable.” 12

The Court upheld one such right in CBS, Inc. v. FCC, a case involving a challenge to a law requiring “reasonable access” to a broadcast station for candidates seeking election to federal office.13 Citing constitutional protections for journalistic freedom, the Court noted that earlier precedents, such as Tornillo and Democratic National Committee, had foreclosed a general right of access.14 The Court held that the right to “reasonable” access for federal candidates, which was limited in terms of who could invoke the right, when it could be invoked, and for what purpose, properly balanced the free speech interests of broadcasters with those of the public and federal candidates.15

The Supreme Court subsequently rejected a First Amendment challenge brought by a candidate for office who was excluded from a public broadcast station’s televised debate in Arkansas Educational Television Commission v. Forbes.16 Relying on its decisions in Democratic National Committee and League of Women Voters, the Court held that “broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.” 17 However, the Court concluded the station’s debate—which was, by design, a forum for candidate speech—could be subject to additional First Amendment scrutiny.18 Applying public forum doctrine, the Court concluded the debate was a nonpublic forum from which the station could exclude candidates, given that the debate was subject to selection criteria established by the station and never designated as open to all candidates.19

Public and Nonpublic Forums
, >https://constitution.congress.gov/browse/essay/amdt1-7-7-2/ALDE_00013543. After determining that the debate was not a general access public forum, the court concluded that the station’s exclusion of the candidate seeking access was based on the candidate’s lack of popular support and therefore “was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.” 20

Footnotes
1
See generally Overview of Access and Editorial Discretion. back
2
Red Lion Broad. Co. v. FCC, 395 U.S. 367, 373 (1969). For more discussion of Red Lion and regulation of broadcast media generally, see [broadcast radio and television]. back
3
Red Lion, 395 U.S. at 390. back
4
Id. at 396. back
5
468 U.S. 364, 398–99 (1984). back
6
Id. at 385. back
7
Id. at 380. back
8
Id. For further discussion, see
Restrictions on Editorializing
, >https://constitution.congress.gov/browse/essay/amdt1-7-13-5/ALDE_00001277/. back
9
412 U.S. 94, 98 (1973). back
10
Id. at 125. The Court was divided on the question of whether a broadcaster’s role qualified as state action for First Amendment purposes, but resolved the case on statutory grounds without deciding this question. Compare id. at 121 (plurality opinion) (determining that broadcaster’s policy was not state action), with id. at 148 (Blackmun, J., concurring) (determining that the case could be resolved without reaching the state action issue and “therefore refrain[ing] from deciding it” ), and id. at 180–81 (Brennan, J., dissenting) (determining that First Amendment should apply to broadcaster’s policy). back
11
Id. at 111 (majority opinion). For more discussion of Tornillo and the general right of editorial discretion, see Overview of Access and Editorial Discretion. back
12
Democratic Nat’l Comm, 412 U.S. at 131. back
13
453 U.S. 367, 371 (1981). back
14
Id. at 395–96. back
15
Id. back
16
523 U.S. 666, 669 (1998). back
17
Id. at 673. back
18
Id. at 675–76. back
19
Id. at 678–80. For more discussion of public and nonpublic forums generally, see
Public and Nonpublic Forums
, >https://constitution.congress.gov/browse/essay/amdt1-7-7-2/ALDE_00013543. back
20
Forbes, 523 U.S. at 683. back