Press topic

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

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 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 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 it.

Although 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 children.”

While the FCC still restricts over-the-air broadcasts of indecent speech to between 10 p.m. and 6 a.m., 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 Turner 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.

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 Arkansas 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 broadcasters.

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.

Revised March 2007