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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



Online symposium: TV violence & the FCC

FCC: Howard Stern's show is 'bona fide news interview' program
Decision allows shock jock to put Arnold Schwarzenegger on air without offering time to other California governor candidates. 09.10.03

FCC chairman to Congress: TV, radio must clean up act
Spurred by Super Bowl halftime show, House and Senate hold hearings on broadcast indecency. 02.11.04

3rd Circuit denies Tribune media-merger request
Appeals court says no to Chicago Tribune publisher, which had asked to allow mergers between newspapers, broadcasters in big markets; tighter limits on radio station ownership also OK'd. 09.07.04

FCC raids Knoxville pirate radio station
Agents confiscate all equipment from Knoxville First Amendment Radio, operating without a license out of a trailer. 09.16.04

Republicans urge satellite, cable indecency rules
National Association of Broadcasters, representing over-the-air TV, also wants same restrictions extended to all television programming. 03.02.05

Indecency complaint leads to limit on blind broadcast service
Single call about nighttime reading from Tom Wolfe novel prompts TV station's pullback out of fear of hefty fine. 03.04.05

Kentucky high court reinstates verdict against WHAS-TV
Court finds Louisville station damaged amusement park by reporting erroneously that state inspectors thought its roller coaster was dangerous. 08.30.05

TV networks, stations challenge FCC indecency ruling
Broadcasters call federal enforcement of rules on profane language vague, inconsistent. 04.17.06

Senate approves 10-fold increase for TV, radio indecency fines
Broadcast networks would be subject to higher penalties; policy wouldn't apply to cable or satellite channels. 05.23.06

Congress votes to increase indecency fines 10-fold
Broadcast Decency Enforcement Act passes House, 379-35; president expected to sign it. 06.07.06

Bush signs broadcast-decency law
Large increase in fines will force broadcasters to 'take seriously their duty to keep the public airwaves free of obscene, profane and indecent material,' president says. 06.16.06

Some stations hesitate to air 9/11 documentary
CBS affiliates wary of possible fines over firefighters' foul language as decency group vows to flood FCC with complaints. 09.05.06

Hearing attendees tell FCC to tighten media-ownership rules
Commission to hold several more hearings before it makes new rules, which will include limits on how many radio stations one company can own in single market. 10.10.06

FCC suggests framework for restricting TV violence
Report says Congress could regulate cable, satellite and broadcast television without violating First Amendment. 04.26.07

House votes to prevent Fairness Doctrine revival
By Courtney Holliday Republicans lead effort to prohibit FCC from using funds to implement doctrine after hearing Democratic rumblings about attempts to resurrect it. 07.02.07

Court allows lawsuit on NBC 'Predator' story to go to trial
Federal judge says jury might conclude NBC 'crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement.' 02.27.08

The FCC's Regulation of Indecency

Do we really want to watch everything on tape delay?
By Paul K. McMasters Incidents like NASCAR driver's expletive on national TV keeps broadcasters scrambling to avoid fines by sanitizing the airwaves. 10.10.04

Censorship by any other name is so much easier
By Paul K. McMasters If we think expression is indecent, the easy way is to get government to ban it or regulate it; the hard way is to engage it, decry it, discourage it, present a better alternative. 08.14.05

FCC chairman pans common-sense ruling on ‘fleeting expletives’
By Gene Policinski In case involving Cher, Nicole Richie, 2nd Circuit decision won't unleash torrent of televised indecency that agency says it fears. 06.17.07

NBC ‘Predator’ lawsuit: journalism on trial
By Douglas Lee Judge cites SPJ, RTNDA ethical standards in finding that jury should hear case involving TV news sting operation that ended in suicide. 03.04.08

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