Broadcast Radio and Television

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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 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 broadcast scarcity.1 Thus, the Federal Communications Commission (FCC) has broad authority to determine the right of access to broadcasting,2 although, to avoid heightened constitutional scrutiny, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.3

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.4 In Red Lion, Justice Byron White explained that “differences in the characteristics of [various] media justify differences in First Amendment standards applied to them.” 5 In contrast to speaking or publishing, the Court noted that broadcast frequencies are limited and some few must be given the privilege over others. The Court held that a particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. The Court ruled that the government could require that a licensee to “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.” 6 Furthermore, Justice Byron White explained that by helping expand access to different ideas, these restrictions furthered the “collective right” of the viewers and listeners, “to have the medium function consistently with the ends and purposes of the First Amendment.” 7 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 Byron 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.” 8

In Columbia Broadcasting System v. Democratic National Committee,9 the Court rejected claims of political groups that a broadcaster’s policy of not running “editorial” advertisements violated the First Amendment. Though it declined to require broadcaster access based on the First Amendment or existing federal law, the Court left open the possibility that “at some future date Congress or the [FCC]—or the broadcasters—may devise some kind of limited right of access that is both practicable and desirable.” 10 Consequently, in CBS v. FCC,11 the Court upheld a federal law requiring “reasonable access” to broadcast stations for candidates seeking federal elective office. The constitutional analysis restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.

In FCC v. League of Women Voters,12 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, saying broadcast “restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues.” 13 The Court said that “in 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, [the challenged federal law] directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.” 14 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.” 15 Expression of editorial opinion was described as a “form of speech . . . that lies at the heart of First Amendment protection,” 16 and the ban was said to be “defined solely on the basis of . . . content,” since it had been interpreted as speech directed at “controversial issues of public importance.” 17 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 articulated additional justifications allowing greater regulation of indecent broadcasting.18 The Court noted first that broadcast was “uniquely pervasive,” confronting individuals “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.” 19 Second, the Court emphasized that, “broadcasting is uniquely accessible to children, even those too young to read. . . . amply justify[ing] special treatment of indecent broadcasting.” 20 The Court emphasized the “narrowness” of its holding, which “requires consideration of a host of variables.” 21 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.22

1: NBC v. United States, 319 U.S. 190, 226–27 (1943) (saying “[t]he right of free speech does not include . . . the right to use the facilities of radio without a license,” but noting that a “different” issue would be presented if Congress had authorized licensing on “the basis of [applicants'] political, economic or social views, or . . . any other capricious basis” ); accord Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375–79, 387–89 (1969); FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 798–802 (1978).
2: NBC, 319 U.S. 190 (1943); Fed. 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).
3: “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, 319 U.S. at 226.
4: 395 U.S. at 373. “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.
5: Id. at 386.
6: Id. at 389.
7: Id. at 390.
8: Id. at 392–93.
9: 412 U.S. 94 (1973).
10: Id. at 131.
11: 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 (White, Rehnquist & Stevens, JJ.).
12: 468 U.S. 364 (1984) (holding unconstitutional § 399 of the Public Broadcasting Act of 1967, as amended).
13: 468 U.S. at 380. The Court rejected the suggestion that only a “compelling” rather than “substantial” governmental interest can justify restrictions.
14: Id. at 38.
15: Id. at 384–85. Dissenting Justice John Paul Stevens thought that the ban on editorializing served an important purpose of “maintaining government neutrality in the free marketplace of ideas.” Id. at 409.
16: Id. at 381.
17: Id. at 383.
18: FCC v. Pacifica Found., 438 U.S. 726 (1978).
19: Id. at 748.
20: Id. at 749–50. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. In Denver Area Educ. Telecommc’ns 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.”
21: 438 U.S. at 750. See also id. at 742–43 (plurality opinion), and id. at 755–56 (Powell, J., 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.” ).
22: Id. 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. 502 (2009). See also CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, 556 U.S. 1218 (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.