Course No.: 9200 710 801
Course ID: 17261
Tu 6:30-9:30 p.m.
|Professor Jay Dratler, Jr.||
Room 231D (IP Alcove)
|Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 Jay Dratler, Jr.|
|For permission, see CMI.|
Red Lion Broadcasting Co. v. Federal Communications Commission
395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969)
Justices Warren, Black, Harlan, Brennan, Stewart,
White, Marshall decided the case; Justice Douglas took no part in the
The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "GoldwaterExtremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a "book to smear and destroy Barry Goldwater." When Cook heard of the broadcast he [*372] concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, the [*373] FCC's position was upheld as constitutional and otherwise proper.
B.Not long after the Red Lion litigation was begun, the FCC issued a Notice of Proposed Rule Making, with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. After considering written comments supporting and opposing the rules, the FCC adopted them substantially as proposed . . . . Twice amended, the rules were held unconstitutional in the RTNDA litigation by the Court of Appeals for the Seventh Circuit, on review of the rule-making proceeding, as abridging the freedoms of speech and press.
As they now stand amended, the regulations read as follows:
"(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the [*374] attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.
* * *
C.Believing that the specific application of the fairness doctrine in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance rather than abridge the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional[.]
II.The history of the emergence of the fairness doctrine and of the related legislation shows that the Commission's action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own.
A.Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. [*376] It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard. Consequently, the Federal Radio Commission was established [*377] to allocate frequencies among competing applicants in a manner responsive to the public "convenience, interest, or necessity."
Very shortly thereafter the Commission expressed its view that the "public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies . . . to all discussions of issues of importance to the public." Great Lakes Broadcasting Co., 3 F. R. C. Ann. Rep. 32, 33 (1929), rev'd on other grounds, 37 F.2d 993 (D.C. Cir.), cert. dismissed 281 U.S. 706 (1930). This doctrine was applied through denial of license renewals or construction permits, both by the FRC and its successor FCC . . . . After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others, but also to refrain from expressing his own personal views, the latter limitation on the licensee was abandoned and the doctrine developed into its present form.
There is a twofold duty laid down by the FCC's decisions . . . . The broadcaster must give adequate coverage to public issues, and coverage must be fair in that it accurately reflects the opposing views. This must be done at the broadcaster's own expense if sponsorship is unavailable. [*378] Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source. The Federal Radio Commission had imposed these two basic duties on broadcasters since the outset, and in particular respects the personal attack rules and regulations at issue here have spelled them out in greater detail.
When a personal attack has been made on a figure involved in a public issue, both [case law and] . . . the 1967 regulations at issue in RTNDA require that the individual attacked himself be offered an opportunity to respond. Likewise, where one candidate is endorsed in a political editorial, the other candidates must themselves be offered reply time to use personally or through a spokesman. These obligations differ from the general fairness requirement that issues be presented, and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attacked party's side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from the preceding fairness doctrine. The simple fact that the attacked men or unendorsed candidates may respond themselves or through [*379] agents is not a critical distinction, and indeed, it is not unreasonable for the FCC to conclude that the objective of adequate presentation of all sides may best be served by allowing those most closely affected to make the response, rather than leaving the response in the hands of the station which has attacked their candidacies, endorsed their opponents, or carried a personal attack upon them.
The statutory authority of the FCC to promulgate these regulations derives
from the mandate to the "Commission from time to time, as public convenience,
interest, or necessity requires" to promulgate "such rules and regulations
and prescribe such restrictions and conditions . . . as may be necessary
to carry out the provisions of this chapter . . . ." 47 U. S. C.
§ 303 and § 303(r). The Commission is specifically directed to consider
the demands of the public interest in the course of granting licenses,
47 U. S. C. §§ 307 (a), 309 (a); [*380] renewing them, 47 U. S.
C. § 307; and modifying them. Ibid. Moreover, the FCC
has included among the conditions of the Red Lion license itself the requirement
that operation of the station be carried out in the public interest, 47
U. S. C. § 309 (h). This mandate to the FCC to assure that broadcasters
operate in the public interest is a broad one, . . . whose validity we
have long upheld. It is broad enough to encompass these regulations.
* * * [*386] * * *
III.The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.
A.Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them. . . . [*387] . . . For example, the ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the sound level, and on the hours and places of use, of sound trucks so long as the restrictions are reasonable and applied without discrimination.
Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others.
When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is [*388] incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology.
It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, as the Court has noted at length before. It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.
Where 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. If 100 persons want broadcast [*389] licenses but there are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.
This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech. " By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and 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.
This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in § 326, which forbids FCC interference with "the right [*390] of free speech by means of radio communication." Because 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. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. * * * It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.
Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that [*391] each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert that under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.
In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equal-time provision of § 315, a specific enactment of Congress requiring stations to set aside reply time under specified circumstances and to which the fairness doctrine and these constituent regulations are important complements. That provision, which has been part of the law since 1927, has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned.
[*392] Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." Associated Press v. United States, 326 U.S. 1, 20 (1945).
C.It is strenuously argued, however, that if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression [*393] to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship and their coverage of controversial public issues will be eliminated or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stifled.
At this point, however, as the Federal Communications Commission has indicated, that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard. It would be better if the FCC's encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect.
That this will occur now seems unlikely, however, since if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. [*394] It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.
Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. 47 U. S. C. § 301. * * * The statute mandates the issuance of licenses if the "public convenience, interest, or necessity will be served thereby." 47 U. S. C. § 307 (a). In applying this standard the Commission for 40 years has been choosing licensees based in part on their program proposals. * * * In determining how best to allocate frequencies, the Federal Radio Commission considered the needs of competing communities and the programs offered by competing stations to meet those needs; moreover, if needs or programs shifted, the Commission could alter its allocations to reflect those shifts. * * * [*395] * * * Three years later the Court considered the validity of the Commission's chain broadcasting regulations, which among other things forbade stations from devoting too much time to network programs in order that there be suitable opportunity for local programs serving local needs. The Court upheld the regulations, unequivocally recognizing that the Commission was more than a traffic policeman concerned with the technical aspects of broadcasting and that it neither exceeded its powers under the statute nor transgressed the First Amendment in interesting itself in general program format and the kinds of programs broadcast by licensees. National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
D.The litigants embellish their First Amendment arguments with the contention that the regulations are so vague that their duties are impossible to discern. Of this point it is enough to say that, judging the validity of the regulations on their face as they are presented here, we cannot conclude that the FCC has been left a free hand to vindicate its own idiosyncratic conception of the public interest or of the requirements of free speech. Past adjudications by the FCC give added precision to the regulations; there was nothing vague about the FCC's specific ruling in Red Lion that Fred Cook should be provided an opportunity to reply. The regulations at issue in RTNDA could be employed in precisely the same way as the fairness doctrine was in Red Lion. Moreover, the FCC itself has recognized that [*396] the applicability of its regulations to situations beyond the scope of past cases may be questionable, and will not impose sanctions in such cases without warning. We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable but will deal with those problems if and when they arise.
We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials.
It is argued that even if at one time the lack of available frequencies
for all who wished to use them justified the Government's choice of those
who would best serve the public interest by acting as proxy for those
who would present differing views, or by giving the latter access directly
to broadcast facilities, this condition no longer prevails so that continuing
control is not justified. To this there are several answers.
"(2) bona fide news interview,
3. [Court's footnote 26] RTNDA argues that
these regulations should be held invalid for failure of the FCC to make
specific findings in the rule-making proceeding relating to these factual
questions. Presumably the fairness doctrine and the personal attack
decisions themselves, such as Red Lion, should fall for the same
reason. But this argument ignores the fact that these regulations
are no more than the detailed specification of certain consequences of
long-standing rules, the need for which was recognized by the Congress
on the factual predicate of scarcity made plain in 1927, recognized by
this Court in the 1943 National Broadcasting Co. case, and reaffirmed
by the Congress as recently as 1959. "If the number of radio and
television stations were not limited by available frequencies, the committee
would have no hesitation in removing completely the present provision
regarding equal time and urge the right of each broadcaster to follow
his own conscience . . . . However, broadcast frequencies are limited
and, therefore, they have been necessarily considered a public trust."
S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). In light
of this history; the opportunity which the broadcasters have had to address
the FCC and show that somehow the situation had radically changed, undercutting
the validity of the congressional judgment; and their failure to adduce
any convincing evidence of that in the record here, we cannot consider
the absence of more detailed findings below to be determinative.
4. [Court's footnote 28] We need not deal
with the argument that even if there is no longer a technological scarcity
of frequencies limiting the number of broadcasters, there nevertheless
is an economic scarcity in the sense that the Commission could or does
limit entry to the broadcasting market on economic grounds and license
no more stations than the market will support. Hence, it is said,
the fairness doctrine or its equivalent is essential to satisfy the claims
of those excluded and of the public generally. A related argument,
which we also put aside, is that quite apart from scarcity of frequencies,
technological or economic, Congress does not abridge freedom of speech
or press by legislation directly or indirectly multiplying the voices
and views presented to the public through time sharing, fairness doctrines,
or other devices which limit or dissipate the power of those who sit astride
the channels of communication with the general public. Cf.
Citizen Publishing Co. v. United States, 394 U.S. 131 (1969).