Governmental Regulation of Communications Industries

Labor Relations.—Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,903 the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. “The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.... The regulation here in question has no relation whatever to the impartial distribution of news.” Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.904

Antitrust Laws.—Resort to the antitrust laws to break up restraints on competition in the newsgathering and publishing field was found not only to present no First Amendment problem but to comport with government’s obligation under that Amendment. Said Justice Black: “It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.”905

Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack,906 even though it may be contended that freedom of the press may thereby be preserved.907

903 301 U.S. 103, 132 (1937).

904 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

905 Associated Press v. United States, 326 U.S. 1, 20 (1945).

906 Lorain Journal Co. v. United States, 342 U.S. 143 (1951) (refusal of newspaper publisher who enjoyed a substantial monopoly to sell advertising to persons also advertising over a competing radio station violates antitrust laws); United States v. Radio Corp. of America, 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); United States v. Greater Buffalo Press, 402 U.S. 549 (1971) (monopolization of color comic supplements). See also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding FCC rules prospectively barring, and in some instances requiring divesting to prevent, the common ownership of a radio or television broadcast station and a daily newspaper located in the same community).

907 Citizen Publishing Co. v. United States, 394 U.S. 131 (1969) (pooling arrangement between two newspapers violates antitrust laws; First Amendment argument that one paper will fail if arrangement is outlawed rejected). In response to this decision, Congress enacted the Newspaper Preservation Act to sanction certain joint arrangements where one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C. §§ 1801-1804.

Radio and Television.—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 utilize 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 scarcity.908 Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting,909 although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.910

In certain respects, however, governmental regulation does implicate First Amendment values to a great degree; insistence that broadcasters afford persons attacked on the air an opportunity to reply and that they afford a right to reply from opposing points of view when they editorialize on the air was unanimously found to be constitutional.911 In Red Lion, Justice White explained that differences in the characteristics of various media justify differences in First Amendment standards applied to them.912 Thus, while there is a protected right of everyone to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee “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.” Further, said Justice White, “[b]ecause 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.”913 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 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.”914

908 NBC v. United States, 319 U.S. 190 (1943); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-79, 387-89 (1969); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 798-802 (1978).

909 NBC v. United States, 319 U.S. 190 (1943); Federal Radio Comm. v. Nelson Brothers 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).

910 “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 v. United States, 319 U.S. 190, 226 (1943).

911 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). “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.

912 395 U.S. at 386.

913 395 U.S. at 388-90.

914 395 U.S. at 392-93.

In Columbia Broadcasting System v. Democratic National Committee,915 the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court’s multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC,916 the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress’ power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.

915 412 U.S. 94 (1973).

916 453 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 (Justices White, Rehnquist, and Stevens).

In FCC v. League of Women Voters,917 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. “[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern… [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest.”918 However, the earlier cases were distinguished. “[I]n 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, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.”919 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.”920 Expression of editorial opinion was described as a “form of speech . . . that lies at the heart of First Amendment protection,”921 and the ban was said to be “defined solely on the basis of . . . content,” the assumption being that editorial speech is speech directed at “controversial issues of public importance.”922 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.

917 468 U.S. 364 (1984), holding unconstitutional § 399 of the Public Broadcasting Act of 1967, as amended. The decision was 5-4, with Justice Brennan’s opinion for the Court being joined by Justices Marshall, Blackmun, Powell, and O'Connor, and with Justices White, Rehnquist (joined by Chief Justice Burger and by Justice White), and Stevens filing dissenting opinions.

918 468 U.S. at 380. The Court rejected the suggestion that only a “compelling” rather than “substantial” governmental interest can justify restrictions.

919 468 U.S. at 385.

920 468 U.S. at 384-85. Dissenting Justice Stevens thought that the ban on editorializing served an important purpose of “maintaining government neutrality in the free marketplace of ideas.” Id. at 409.

921 468 U.S. at 381.

922 468 U.S. at 383.

Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated “barnyard” words, considered “indecent” but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities.923 “First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, 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.... Second, broadcasting is uniquely accessible to children, even those too young to read.... The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting.”924 The purport of the Court’s new theory is hard to divine; while its potential is broad, the Court emphasized the contextual “narrowness” of its holding, which “requires consideration of a host of variables.”925 Time of day of broadcast, the likely audience, the differences between radio, television, and perhaps closed-circuit transmissions were all relevant in the Court’s view.*

923 FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

924 438 U.S. at 748-51. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. Justice Stevens’ opinion was joined by Chief Justice Burger and Justices Rehnquist, Powell, and Blackmun. Justices Powell and Blackmun, id. at 755, concurred also in a separate opinion, which reiterated the points made in the text. Justices Brennan and Marshall dissented with respect to the constitutional arguments made by Justices Stevens and Powell. Id. at 762. Justices Stewart and White dissented on statutory grounds, not reaching the constitutional arguments. Id. at 777.

925 438 U.S. at 750. See also id. at 742-43 (plurality opinion), and id. at 755- 56 (Justice Powell concurring) (”Court 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.”).

* 438 U.S. 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., 129 S. Ct. 1800 (2009). See also CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, 129 S. Ct. 2176 (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. Decisions regarding legislation to ban “indecent” expression in broadcast and cable media as well as in other contexts are discussed under “Non-obscene But Sexually Explicit and Indecent Expression,” infra.

Governmentally Compelled Right of Reply to Newspapers.—However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.927 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, while desirable, “is not mandated by the Constitution,” while freedom is. The compulsion exerted by government on a newspaper to print that which it would not otherwise print, “a compulsion to publish that which ‘reason tells them should not be published,”’ runs afoul of the free press clause.928

927 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).

928 418 U.S. at 256. The Court also adverted to the imposed costs of the compelled printing of replies but this seemed secondary to the quoted conclusion. The Court has also held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. While a plurality opinion adhered to by four Justices relied heavily on Tornillo, there was not a Court majority consensus as to rationale. Pacific Gas & Elec. v. Public Utilities Comm'n, 475 U.S. 1 (1986). See also Hurley v. Irish-American Gay Group, 514 U.S. 334 (1995) (state may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).

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Last modified: June 9, 2014