Friday, September 13, 2002

Although the authors of the First Amendment did not foresee the days when
radio microphones and television cameras would revolutionize the news and
entertainment industries, courts generally have had little problem extending the
freedom of the press to broadcasters.

Like print journalists, broadcasters enjoy freedom from prior restraint, the
right of access to court proceedings, and protections against chilling
defamation and privacy lawsuits. As occupiers of the public airwaves, however,
broadcasters also are required to bear responsibilities inconsistent with the
First Amendment.

The original justification for regulating broadcasters was set forth by the
U.S. Supreme Court in 1969 in
href=”″>Red Lion
Broadcasting Co. v. FCC.
In Red Lion, broadcasters challenged the
Fairness Doctrine, a Federal Communications Commission rule that required them
to give each side of an issue fair coverage. The Court upheld the rule, saying
the government, because it was allocating a finite number of broadcast
frequencies, could regulate the licensees of those frequencies.

Broadcasters strongly resisted this premise, but the “spectrum scarcity”
rationale was used by the Court again in 1978, in
href=”″>FCC v.
Pacifica Foundation.
In Pacifica, a New York radio station
broadcast George Carlin’s “Filthy Words” monologue during an afternoon program.
In the monologue, Carlin used many words the FCC had deemed indecent but not
obscene. After a listener complained, the FCC issued orders holding that such
speech could be broadcast only when children likely would not be exposed to

Though the Court did not find Carlin’s monologue obscene (and thus without
any First Amendment protection), it did find the monologue indecent. Relying in
part on the spectrum-scarcity rationale, the Court said the FCC could restrict
when indecent speech is broadcast. The FCC’s power to regulate, the Court said,
also rested on the facts that broadcasters, unlike print publishers, enjoy “a
uniquely pervasive presence in the lives of all Americans” and that
broadcasting, unlike newspapers and magazines, is “uniquely accessible to

No more spectrum scarcity
The FCC still restricts over-the-air
broadcasts of indecent speech to between 10 p.m. and 6 a.m., but the number of
special regulations for broadcasters has decreased. This decrease is
attributable in large part to the collapse of the spectrum-scarcity rationale.
As even the FCC has recognized, advances in technology have made the number of
frequencies now almost limitless. Moreover, as the Court noted in
Broadcasting System, Inc. v. FCC,
the spectrum-scarcity rationale is
irrelevant in the cable industry. The FCC’s regulation of indecency thus does
not apply to programming aired on cable-only channels.

One broadcasting regulation that no longer exists is the Fairness Doctrine.
Unsupported by the spectrum-scarcity rationale and politically unpopular in the
anti-regulation era of President Ronald Reagan, the Fairness Doctrine was
dissolved by the FCC in August 1987. Congressional attempts to legislate the
doctrine were vetoed by both Presidents Reagan and George H. Bush, in 1987 and
1991, respectively.

Corollaries to the Fairness Doctrine — the “personal attack” and “political
editorializing” rules — were thrown out in October 2000 by the U.S. Circuit
Court of Appeals for the District of Columbia. Under the “personal attack” rule,
broadcasters were required to notify persons whose character was attacked on the
air and to give them an opportunity to respond. Under the “political
editorializing” rule, stations that endorsed a candidate for office were
required to give the candidate’s opponents free rebuttal time. The court issued
its decision after the FCC failed to comply with the court’s request to justify
the rules.

‘Stealth Fairness Doctrine’?
In February 2008, the FCC issued its

on Broadcast Localism and Notice of Proposed Rulemaking,”
concluding that a
significant number of broadcasters had not devoted enough time to locally
responsive programming. The FCC proposed changes to current rules to promote
localism and diversity in broadcasting.

Recommendations include reintroducing renewal-application processing
guidelines to ensure that broadcasters are providing some programming directed
to local issues; creating local advisory boards composed of officials and
community leaders to alert stations to important local issues; and producing
guidelines for stations to ensure they receive community views through town-hall
meetings, and conducting listener surveys. The FCC is seeking public comment on
the proposed changes.

The proposals ignited a firestorm of debate over what some call an effort to
create a “stealth Fairness Doctrine.” Opponents of the proposed changes argue
that the FCC will be able to determine the content of some programming, as under
the Fairness Doctrine. FCC Commissioner Robert McDowell has publicly stated his
concerns that if the FCC required stations to fill out content-disclosure forms
— coupled with shorter license-renewal terms and advisory boards empowered to
shape programming — then the government could control political and
issue-oriented speech. McDowell characterized such a result as achieving
Fairness Doctrine objectives of “viewpoint balancing” through a new route.

Proponents of the FCC’s suggestions argue that communications policy has
always focused on broadcasters’ perceived obligation to provide programming that
benefits the public. They say they are troubled by stations that hold free
licenses to airwaves yet provide no programming on issues of local public

Talk radio, most of it espousing conservative viewpoints, has led the attack
on the FCC proposals as a stealth Fairness Doctrine. Radio-show hosts say the
public interest is best served by treating radio and TV as a free marketplace
where opposing viewpoints can compete for audiences. Religious broadcasters also
have expressed concern. Rep. Mike Pence, R-Ind., noted that Christian stations
were particularly sensitive to anything resembling a new Fairness Doctrine
because it would require them to give airtime to competing views on issues such
as marriage and the sanctity of life that could undercut their ministries.

Many observers agree that there will be no re-emergence of the Fairness
Doctrine, at least not as it existed before 1985. President Barack Obama has
stated that he is not interested in reviving it. The Obama administration,
however, and FCC Chairman Julius Genachowski, have said that programming
diversity will be a priority in communications policy. Whether the proposals in
the FCC report would amount to a stealth Fairness Doctrine is the center of the

Equal time
Still in place, though considerably watered down, is the
FCC’s “equal time” rule. As originally adopted, the rule required broadcast
stations that allowed one candidate to use the airwaves to offer all other
candidates for that office comparable airtime. In 1959, Congress amended the
rule to exempt coverage of candidates in newscasts, news interviews and
documentaries in which the candidate’s inclusion is incidental to the subject of
the documentary. In 1983, the FCC exempted broadcaster-sponsored debates from
the rule. Five years later, the U.S. Supreme Court confirmed in
Educational Television Commission v. Forbes,
that public television
stations enjoy the same right to limit participation in candidate debates.

Even with these victories for broadcasters, the electoral process remains
fertile ground for legislative and agency efforts to impose special rules on

Part of the fallout from the 2000 presidential election, for example, were
ultimately unsuccessful bills to prohibit broadcasters from announcing election
projections before all polls had closed. Efforts also have been made to regulate
exit polling, but most of those have been overturned by courts.

Special rules in campaign-finance reform legislation, however, have proven
harder to avoid, though broadcasters and interest groups continue to challenge
them. Until the U.S. Supreme Court comprehensively resolves these issues, the
legal landscape for broadcasters will remain somewhat unsettled.

Ellen D’Angelo, a legal intern in 2009, contributed to this article.

Updated January 2010