Compared to print media, government has played a more active role in regulating broadcast radio and television. The federal government has administered a system for licensing radio broadcasting since 1912.1 By contrast, the licensure of printed media is among the historical practices that inspired the earliest formations of the free speech and free press rights,2 and modern courts presume that such licensing systems would be unconstitutional.3 The Supreme Court recognized in National Broadcasting Co. v. United States that broadcast is unique among media because electromagnetic spectrum is a scarce and finite resource, and this scarcity justifies government involvement to allocate the use of those frequencies and mitigate interference between broadcast signals.4 The Court suggested, however, that this government authority does not permit regulation based on the content or viewpoint of materials being broadcast.5

The Supreme Court relied on the scarcity of radio spectrum to justify certain aspects of the Federal Communications Commission’s (FCC’s) “fairness doctrine” in Red Lion Broadcasting Co. v. FCC.6 The fairness doctrine refers to the FCC’s practice for many years of requiring radio and television broadcasters to provide coverage of contrasting viewpoints when discussing public issues.7 Red Lion involved FCC regulations requiring a broadcaster to afford individuals an on-air opportunity to respond to personal attacks aired by the broadcaster. Broadcasters argued these rules abridged their First Amendment right to broadcast whatever they choose, citing the general right of an individual to “say[] or publish[] what he thinks.” 8 .

The Supreme Court in Red Lion held that “differences in the characteristics of new media justify differences in the First Amendment standards applied to them.” 9 The Court identified scarcity as a rationale for different treatment because “[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” 10 In comparison to other types of media, the then-current state of technology would cause “chaos” if any person were allowed “to use any frequency at whatever power level he wished” —limiting overcrowding on the spectrum was necessary for effective communication.11

Beyond merely justifying a federal licensing scheme for radio spectrum, as had been the case in National Broadcasting Co., the Court used scarcity in Red Lion to uphold the government’s ability to regulate the content being broadcast on licensed stations. The Court reasoned that just as government may grant or deny a broadcast license as “the public interest” requires, so too may government require a licensee to act in the public interest in selecting the content to be broadcast.12 The Red Lion court understood this government power as necessary to effect the First Amendment interests of “viewers and listeners,” whose rights outweighed those of broadcasters.13 The Court dismissed as “at best speculative” arguments that the FCC’s regulations would result in self-censorship by broadcasters, but admitted that “there will be time enough to reconsider the constitutional implications” if such an outcome occurred.14

The government power to regulate broadcast recognized in Red Lion is not boundless, and the Court has recognized that broadcasters retain “the widest journalistic freedom consistent with [their] public obligations.” 15 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.16 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,17 but articulated limits on this power: namely, that regulations on broadcast content must be “narrowly tailored to further a substantial governmental interest.” 18

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695. The ban on editorializing at issue in League of Women Voters was considered too severe and restrictive to satisfy this narrow tailoring test.19

The Court pivoted from the reasoning of Red Lion in FCC v. Pacifica Foundation, a case sustaining FCC discipline of a radio broadcaster for broadcasting indecent material at a time when children could hear the material.20 The FCC’s enforcement action relied on a statute that prohibits the broadcast of “obscene, indecent, or profane language.” 21 The FCC had interpreted this provision to cover the broadcast of a satiric monologue that was the subject of a consumer complaint before the FCC.22 In seeking judicial review of the FCC’s enforcement action, the broadcaster argued that the FCC could not constitutionally regulate “indecent” speech.23

, >https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812/.

Rather than relying on the scarcity of spectrum, the Supreme Court in Pacifica identified two distinct features of broadcast that justified government regulation. First, broadcasting is “uniquely pervasive” and may reach individuals in public as well as their homes.24 Second, “broadcasting is uniquely accessible to children,” and a broadcaster has limited control over whether a child receives a particular broadcast.25

The FCC has not enforced the fairness doctrine since the 1980s, but has continued to impose monetary penalties for indecent broadcasting.26

, 556 U.S. 502 (2009) (upholding FCC enforcement actions taken for indecent broadcasting against statutory challenges). These particular actions were later held unconstitutional under the Due Process Clause of the Fifth Amendment. FCC v. Fox Television Stations, Inc., 567 U.S. 239, 258 (2012). See generally

Laws That Define Criminal Offenses and the Requirement of Definiteness

, >https://constitution.congress.gov/browse/essay/amdt5-8-2/ALDE_00013740. Throughout the Supreme Court’s history, various Justices have expressed the view that Red Lion and Pacifica were wrongly decided and broadcast media should not be subject to unique First Amendment standards.27 The Supreme Court has declined to revisit either Red Lion or Pacifica.

Footnotes

1

Radio Act of 1912, Pub. L. No. 62-264, 37 Stat. 302.

2

See, e.g., 4 William Blackstone, Commentaries *150.

3

See generally Prior Restraints on Speech, >https://constitution.congress.gov/browse/essay/amdt1-7-2-3/ALDE_00013540/.

4

319 U.S. 190, 226 (1943).

5

Id.

6

395 U.S. 367, 373 (1969).

7

See generally id. at 369, 377 (identifying the Federal Radio Commission, an FCC precursor, as first articulating the principles of the fairness doctrine in 1929).

8

Id. at 386.

9

Id.

10

Id. at 388.

11

Id. at 388–89.

12

Id. at 389.

13

Id. at 390. For discussion on weighing these First Amendment interests with respect to other media, see Governmentally Required Access and Editorial Discretion.

14

Red Lion, 395 U.S. at 392–93. The Court further suggested that if stations chose to self-censor and such self-censorship hindered the effective coverage of controversial public issues, the FCC might be empowered to compel stations to provide additional coverage. Id.

15

Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 110 (1973); see also, e.g., Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 674 (1998) ( “When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity.” ).

16

468 U.S. 364, 398–99 (1984).

17

Id. at 376–377. The League of Women Voters Court appeared willing to reconsider the scarcity rationale articulated in Red Lion in light of technological advances such as cable and satellite television, but declined to do so “without some signal from Congress or the FCC.” Id. at 376 n.11.

18

Id. at 380. This language mirrors the “intermediate scrutiny” standard that courts apply to content-neutral restrictions on speech. See generally

Overview of Content-Based and Content-Neutral Regulation of Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695.

19

League of Women Voters, 468 U.S. at 384–86.

20

438 U.S. 726 (1978).

21

18 U.S.C. § 1464.

22

Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94, 98–99 (1975).

23

The FCC’s statutory authority also prohibits broadcasting “obscene” material, which is subject to greater government regulation due to being a so-called “unprotected” category of speech. The FCC conceded that its definition of “indecent” material would extend beyond the constitutional category of obscenity. Id. at 98. See generally

Obscenity

, >https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812/.

24

Pacifica, 438 U.S. at 748.

25

Id. at 749.

26

See, e.g.,

FCC v. Fox Television Stations, Inc.

, 556 U.S. 502 (2009) (upholding FCC enforcement actions taken for indecent broadcasting against statutory challenges). These particular actions were later held unconstitutional under the Due Process Clause of the Fifth Amendment. FCC v. Fox Television Stations, Inc., 567 U.S. 239, 258 (2012). See generally

Laws That Define Criminal Offenses and the Requirement of Definiteness

, >https://constitution.congress.gov/browse/essay/amdt5-8-2/ALDE_00013740.

27

E.g., Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 148, 155–56 (1973) (Douglas, J., concurring) (concluding that “TV and radio stand in the same protected position under the First Amendment as do newspapers and magazines” and that Red Lion was wrongly decided); FCC v. Fox Television Stations, Inc., 567 U.S. at 259 (Ginsburg, J., concurring) (concluding that “[t]ime, technological advances, and the [FCC’s] rulings . . . show why Pacifica bears reconsideration” ); FCC v. Fox Television Stations, Inc., 556 U.S. at 530–35 (Thomas, J., concurring) (analyzing Pacifica and Red Lion and suggesting that “changes in factual circumstances might well support a departure from precedent” ).