*1 INC. SYSTEM, BROADCASTING COLUMBIA COMMITTEE DEMOCRATIC NATIONAL 29, Mаy 1973* Argued October 1972 Decided 71-863. No. *Together 71-864, with Federal Communications Commission Nos. al.; et al. v. Vietnam Peace et 71- Business Executives’ Move for Capital Area, Inc. Stations, v. Business Execu- Post-Newsweek 71-866, Broadcasting Peace; tives’ Move American Vietnam Cos., Committee, Inc. v. also on certiorari to Democratic National the same court. *2 Burger, J., judgment and an C. announced the Court’s delivered II,
opinion respect I, IV, in with to Parts and which Court JJ., joined, and and White, Blacicmun, Powell, Rehnquist, I, II, JJ., and III Rehnquist, in which as to Stewart Parts joined. II, J., opinion concurring I, an Stewart, filed Parts post, III, p. J., opinion concurring White, 132. filed an post, I, II, IV, p. J., opinion Blacicmun, Parts 146. filed an *3 concurring I, II, IV, J., joined, post, in Powell, Parts and which p. J., opinion concurring judgment, 147. filed an in the Douglas, post, p. J., dissenting opinion, a 148. in which Brennan, filed J., joined, post, p. 170. Marshall, Roger Wollenberg
J. argued petitioner the cause for in No. him Lloyd 71-863. With on the were N. briefs Cutler, B. Timothy Dyk, Marcus, Daniel Robert V. Evans, John D. Appel, Joseph and DeFranco. Solicitor General Griswold argued petitioners cause for in No. 71-864. With him on the Acting brief were Assistant Attorney General Comegys, Howard E. Shapiro, and John W. Pettit. Ernest W. Jennes argued the cause for petitioner in No. 71-865. With him on the briefs were Charles A. Miller and Michael Boudin. Vernon L. Wilkinson argued petitioner the cause for in No. 71-866. With him on the brief were A. McKenna, Jr., James Carl R. Ramey. A.
Joseph Jr., ano, argued the cause for respondent Calif Democratic National Committee in Nos. 71-864, 71-863, and 71-866. With him on the brief John was Kester. G. Thomas R. Asher argued the respondent cause for Busi 71- for Vietnam Peace in Nos. Executives’
ness Move PL. him on the brief was Albert 864 and 71-865. With Kramer.† Burger
MR. opinion Chief Justice delivered the (Parts IV) opinion the Court with an I, II, together (Part Mr. Mr. which Justice III), Stewart Rehnquist joined. Justice We writs granted the of certiorari these cases to consider general-policy whether broadcast licensee’s not selling time to individuals or advertising groups they wishing speak important out on issues consider violates Federal Communications Act of amended, seq., Stat. 1064, as U. C. 151 &t § S. or the First Amendment.
In two orders announced same day, the Federal Communications Commission ruled broadcaster who meets his obligation provide full and fair coverage public issues required is not to accept edi- torial Committee, advertisements. Democratic National 25 F. C. C. 2d Executives’ 216; Business Move for Peace, Vietnam 25 F. C. 2d 242. A C. divided Court of Appeals reversed the Commission, that a holding policy broadcaster’s fixed of refusing editorial advertise- ments violates the Amendment; First court remanded *4 to the cases develop Commission to procedures and guidelines for First administering Amendment right a of access. Business Executives’ Move For Peace Vietnam FCC, App. 146 U. S. D. C. F. 2d complainants in these actions are the Democratic
†Floyd Cory Abrams and don B. Dunham filed a brief for National Broadcasting Inc., Co., urging as amicus curiae reversal. Woll,
J. Albert Gold, Laurence E. Thomas Harris filed a brief for the American Congress Federation of Labor and of Industrial Organizations urging as amicus curiae affirmance. Execu- Business and the (DNC) National Committee national or- (BEM), Peace for Vietnam Move tives' in- to United States opposed businessmen of ganization January 1970, In conflict. Vietnam in the volvement charging with the Commission complaint BEM filed a had C., D. Washington, in WTOP radio station that one-minute a series of it to broadcast to sell time refused on Vietnam. BEM views expressing spot announcements broadcasters, all, but not many, in with WTOP, common for spot an- to sell time policy refusing followed a wished to groups who to individuals and nouncements WTOP controversial issues. expound their views on and fair full presented it since position took including the important public questions, coverage accept justified refusing conflict, it was Vietnam also evi- editorial WTOP submitted advertisements. had the views of showing dence the station aired policy Vietnam on numerous occasions. critics our coverage BEM of WTOP’s challenged fairness evidence in presented criticism of that but it no policy, support that claim. May filed with later,
Four months DNC declaratory ruling: for a request Commission First “That under the Amendment Consti- tution and the Communications aAct, broadcaster may not, general policy, as a refuse to sell time to responsible such as solici- entities, DNC, tation of funds and for on public comment issues.” DNC claimed that to purchase intended time from radio television stations and from the national net- works present order to views the Democratic Party and to solicit funds. Unlike BEM, DNC did not object policies any to the particular broadcaster but claimed prior “experiences its in this area make it *5 clear difficulty that it will encounter considerable not —if total of its efforts —in carrying plans frustration out its in the event the Commission should to issue a decline Lion ruling requested.” Broadcasting as Red cited DNC FCC, Co. v. U. S. 367 limited establishing a (1969), constitutional right access to the airwaves.
In two separate opinions, rejected Commission respondents’ “responsible” claims that individuals and groups purchase have right a to time advertising comment regard issues without whether broadcaster complied has with the Fairness Doctrine. The Commission viewed the major sig- issue as one of nificance in administering regulatory relating scheme to the electronic one media, “to the heart of the going system of which broadcasting developed in this coun- try . . . .” F. C. 2d, C. 221. After reviewing legislative history of the pro- Communications Act, itself, visions the Act the Commission’s under decisions the Act, and the problems difficult inherent in administer- ing right of access, rejected the Commission the de- mands BEM and DNC. rejected Commission also BEM’s claim that
WTOP had violated the by failing Doctrine air Fairness views such by as those held BEM; members of the Com- pointed mission out that BEM only had “general made allegation” of unfairness WTOP’s coverage the Viet- nam conflict and that the station had adequately rebutted the charge by affidavit. The Commission did, however, uphold position DNC’s the statute recognized a right political parties purchase broadcast time for purpose Commission soliciting funds. The noted that Congress has special accorded consideration for by access political parties, see 47 U. S. §C. 315 (a), and that solicitation of funds political parties is both *6 time space gen- in the short appropriate feasible spot advertisements.1 to erally allotted the Com- Appeals reversed of the Court majority A paid public issue “a flat ban on holding mission, Amendment, of the First in violation is announcements ac- announcements are paid other sorts least when at 450 F. at 646. D. at 185, 2d, App. C., 146 ü. S. cepted.” a scarce are frequencies the broadcast Recognizing the court never- inherently unavailable to all, resource mandated Amendment the First concluded that theless editorial advertise- right present to “abridgeable” an policy broadcaster's The court reasoned ments. but not editorial commercial advertisements of airing discrimina- unconstitutional advertisements constitutes not, order that either however, court did tion. The must be ac- proposed announcements or BEM's DNC’s broadcasters; rather, it remanded the cases cepted by the develop procedures “reasonable to Commission to ‘edi- determining many which and how and regulations will Ibid. put torial advertisements' be the air.” First dissented; view, McGowan his Judge compel Amendment did not the Commission to under- by majority: to it assigned take the task presently “It is of a to obligation licensee public’s by advance the to know right devoting a presentation substantial amount time public importance, controversial views on issues of striking always subject which is to redress balance to the reference fairness doctrine. Failure to puts do so continuation of the license risk —a sanction of tremendous potency, and one which the pressure Commission under increasing employ. rulings against The Commission’s BEM’s Fairness Doctrine com plaint political parties favor of DNC’s claim that should purchase permitted ap air time for were solicitation funds pealed Appeals to the Court of and are not before here. us system wisely Congress has,
“This which not, provided alternative owner- operation ship of radio and communi- television approach cations facilities. This has never been thought permissible to be other than within the lim- its constitutional choice.” 146 U. D. App. C., S. *7 F. 2d, at 666. Judge McGowan concluded the court’s decision to overrule the and development Commission to remand for implementation and right a constitutional of access put straitjacket” in a Commission “constitutional highly complex a far-reaching and issue.
I opinion for the Court in Red Justice White’s Mr. Lion Broadcasting FCC, Co. v. (1969), 395 U. S. makes clear pose unique the broadcast media and special problems present not in the speech traditional free case. Unlike broadcasting subject other media, is to an physical inherent frequencies limitation. Broadcast are a resource; they scarce portioned must be out ap- among plicants. All possess who the financial and the resources desire to by communicate or radio cannot television be satisfactorily spoke accommodated. The Court to this reality when, Lion, in Red posit we said “it is idle to an unabridgeable First Amendment com- right broadcast parable to the right every speak, write, individual Id., or publish.” at 388.
Because
broadcast media utilize a
and
valuable
public
limited
resource,
present
there is also
an unusual
order of First Amendment values. Red Lion dis-
cussed at
length
application
of the First Amend-
ment
to the broadcast
In
media.
analyzing the broad-
casters’ claim that
the Fairness Doctrine and
its
two of
component rules violated their
of expression,
freedom
we
to a
right
Amendment
a First
one
held
“[n]o
deny a
frequency;
a
monopolize
radio
or to
license
requires
interest’
‘the
because
license
station
”
Although
Id., at 389.
speech.’
of free
not
denial
‘is
First
under the
protection
is not without
broadcaster
Inc.,
Pictures,
Paramount
States v.
United
Amendment,
of the viewers
right
is the
(1948),
“[i]t
Thus, the evaluating First Amendment claims of re- spondents, we great weight must afford to the decisions Congress of and the experience of the Commission. Pro- aptly fessor Chafee observed: away we get “Once from the bare words of the we Amendment, must construe of part [First] a Constitution creates a government which the purpose of performing very several important tasks. interpreted
The Amendment should be so as [First] not to work cripple regular government. A part regulation this work is the of interstate foreign commerce, this has come our job modern to include the out the age parceling air among broadcasters, Congress which has entrusted to every free-speech problem the FCC. Therefore, in the radio to be considered with has reference satisfactory performance job as well as open the value of speech discussion. free Although heavily should weigh in the scale in the event conflict, still the Commission should be given ample scope job.” to do its 2 Z. Chafee, Government and Mass 640-641 Communications The judgment of Legislative Branch cannot be or ignored simply undervalued because one segment constituency broadcast casts its claims under the umbrella of the First say Amendment. That is not to we “defer” to the judgment of Congress and the on a Commission constitutional question, that we would hesitate to invoke the Constitution should we determine that Commission not fulfilled its task appropriate with sensitivity in free expression. interests point is, rather, that when we face a complex problem with many questions hard easy and few answers we do well pay careful attention to how the other branches Government have problem. addressed the same Thus, before confronting specific legal issues in these cases, *9 we turn to an examination of the legislative and admin- istrative development of system our broadcast over the century. last half
II This Court has on occasions numerous recounted the origins system of our modern of broadcast regulation. g., Lion, e. Red See, supra, at 375-386; National Broad- 190, 210-217 States, S. 319 U. Co. v. United casting Station, 309 Radio Brothers FCC v. Sanders (1943); Broadcast- Pottsville FCC v. (1940); 470, U. S. have We (1940). 134, 137-138 ing Co., S. 309 U. ofAct of the Radio prior passage to the noted chaos. marked 1162, broadcasting was 44 Stat. the new use private unregulated burgeoning situ- intolerable resulted an in the 1920’s had media action: congressional demanding ation fre- broadcast apparent quickly became “It whose use resource constituted scarce quencies only by the Gov- be rationalized regulated could control, the medium government ernment. Without cacaphony be of little use because would clearly be none of which could voices, competing Lion, Red supra, 376. predictably heard." subject accepted was But, broadcasting once was major confronted Congress was with regulation, proper pri- how to strike a balance between dilemma: WDAY, control. Cf. Union v. vate and Farmers (1959). 360 U. S. frequently quoted
One of the earliest and most state- Hoover, ments of this dilemma is that of when Herbert Secretary he Department was Commerce. While his was making exploratory attempts to deal infant with the industry early in the broadcasting 1920’s, he testified be- fore a House Committee:
“We can not allow any single person group place position themselves they where can [a] the material which censor shall be broadcasted I nor do believe that the Government public, should placed position ever censoring material.” on H. R. Hearings 7357 before the House Committee on the Merchant Fisheries, Marine and 68th 1st Sess., Cong., *10 aspects “tightrope” foreshadowed the
That statement prob- of the broadcast regulation media, Government Commission, lem the and the courts have Congress, have struggled Congress appears with since. to ever private concluded, however, that these two choices— censorship censorship or official would be —Government diffi- pervasive, self-serving, most the most the most cult to restrain and the one most to be avoided. hence legislative history the Radio Act of 1927, for FCC present statutory scheme, the model our see Co., Broadcasting supra, Pottsville at 137, reveals area of of public discussion issues Congress journalistic chose to leave broad discretion with the licensee. Congress specifically firmly dealt with —and rejected argument the broadcast facilities —the should open be persons nonselective basis to all wishing to talk public about issues. Some members of Congress ultimately whose views were rejected— —those strenuously objected to the unregulated power of broad- casters to reject applications for g., service. See, e. H. R. Rep. No. 404, 69th Cong., 1st Sess., (minority They report). regarded the exercise power of such “private censorship,” which should be controlled by treating public broadcasters as utilities.2 The provision that came closest imposing an unlimited right of access time part broadcast was reported bill to the Senate the Committee on Interstate Commerce. The 2Congressman Davis, example, stated on the floor of the House Congress the view that unacceptable: found “I any do think member of deny the committee will it is absolutely going inevitable regulate that we are to have to the radio just regulate utilities as we other utilities. We are going regulate service, to have to the rates and the and to force give equal them equal Cong. service and to all.” 67 treatment Rec. id., See also 5484. *11 contained the that from Committee emerged bill provision: following a sta- any permit broadcasting licensee shall
“[I]f to be candidate or for tion used a ... candidates any ques- or the discussion any public office, for affecting public, tion he no dis- shall make crimination to the use of sta- broadcasting as such respect and with to said matters the licensee tion, be deemed shall a common carrier interstate com- merce: Provided, that no such licensee shall have power to censor the material broadcast.” 67 Cong. Rec. 12503 (1926) (emphasis added). bill
When the came to the principal Senate floor, architect of the Radio Act of offered an 1927, Dill, Senator provision amendment to eliminate the common carrier obligation and to restrict right access candidates for office. Senator Dill explained the need for the amendment:
“When we recall that broadcasting today purely voluntary, and pays the listener-in nothing it, that the broadcaster gives it for the purpose of build- ing up his reputation, it seemed put unwise to broadcaster under the hampering control of being common carrier compelled accept anything everything was offered him long so as the price paid.” was Rec. Cong. 12502.
The Senators were also problems sensitive to the involved in legislating “equal opportunities” with respect to the discussion of public issues. Dill Senator stated: questions']
“[‘Public such a general term that probably there is no question any interest what- soever that could be discussed but that the other side of it could demand time; and thus a radio station placed position would be Senator from candidates, Iowa mentions about namely, they would have all kind their time to that give discussion, public question no could be dis- Id., cussed.” at 12504. The adopted Senate amendment. Senator Dill’s
provision finally 18 of Act of the Radio enacted, § (a) § Stat. was later re-enacted Act 1934,3 Communications but after only Congress rejected proposal another imposed that would have *12 limited obligation on turn broadcasters to over their microphones persons to wishing speak to out on certain (a)
3 Section 315 now reads: any “If permit any person legally qualified licensee shall a who is any public station, broadcasting candidate for he office to use a equal opportunities shall afford all to other such candidates for in broadcasting Provided, office such use of such station: That power censorship licensee shall have no material broad- of over the obligation provisions imposed under cast of this section. No upon any under this subsection licensee to allow use of its station by any by qualified Appearance legally such candidate. candidate any—on-
“(1) newscast, bona fide
“(2) interview, bona fide news
“(3) documentary (if bona appearance fide news of the candi- subject subjects presentation date incidental to or by documentary), covered the news or “(4) coverage on-the-spot (including fide events of bona news political but limited to incidental conventions and activities thereto), broadcasting
“shall not be deemed to be use of a station within meaning Nothing foregoing in this subsection. sentence relieving broadcasters, shall be construed as in connection with presentation newscasts, interviews, documentaries, and news news on-the-spot coverage events, obligation imposed of news from the upon chapter operate public them under in the interest conflicting opportunity afford for the discussion of reasonable (a). importanсe.” public C. views issues of U. S. §315 con prolonged after public Instead, Congress issues.4 adopted specifically provides which §3(h), sideration person broadcasting “a in engaged not, radio shall stating passed, provision The Senate that: any any broadcasting permit person licensee shall use a “[I]f public support opposition any station of or in candidate for office, presentation public question or in the on a to be views upon opportunity election, equal to an voted at an he shall afford equal persons support an number other to use such station office, reply person opposing candidate for such or to to a broadcasting support opposi- such of or in who used station candidate, opposite presentation views on to a tion public questions such Hearings on Interstate See on S. before the Senate Committee Cong., added). Commerce, Sess., (1934) (emphasis 'The 73d 2d provision was the House- for discussion of issues deleted Rep. 73d Conference. See H. R. 1918 on S. Senate Conf. No. Sess., Cong., 2d 49. noteworthy bills in 1934 that would have
Also are two offered discussion certain restricted the control of broadcasters over the Congressman proposed have issues. McFadden a bill that would spon- against programs discriminate forbidden broadcasters to by religious, charitable, or educational H. R. sored associations. reported of com- Cong., 73d 2d bill was not out Sess. *13 Wagner during Act, And, mittee. debates on the 1934 Senators have and Hatfield offered an amendment that would ordered only educational, reli- “reserve and to Commission to allocate non-profit-making gious, agricultural, cooperative, labor, and similar broadcasting all facilities within associations one-fourth of the radio jurisdiction.” Cong. explained 78 Rec. 8828. Dill its Senator rejected amendment, why proposed had indicat- Committee censorship dangers ing practical of were that the difficulties and the crucial: percent provide 25 of time
“MR. DILL. ... If we should nonprofit organizations, have to someone would be allocated shall Congress somebody much else—how of 25 or to determine — religion, education, go much it to and percent to how should labor, much agriculture, much of it how to much it to how how organizations, this so forth. When we enter it to fraternal
109 be deemed a com person engaged, as such is so insofar 5 mon carrier.” the 1934 Act also evince a provisions legis- Other private journalism preserve lative desire to values which would fulfillment regulatory under a scheme insure public obligations. Although of certain the Commission three-year authority to issue renewable given was rules and promulgate to broadcasters6 and to licenses both con- licenses,7 the use those regulations governing give probably much field we must determine how Catholics much and how much to the Jews.” how to the Protestants Cong. 78 Rec. 8843. determining say problem
Senator Dill went on to subjects should be proper time for discussion of these allocation of rejected by Id., at 8844. The worked out the Commission. Senate Id., the amendment. at 8846. 5 (h) provides Section 3 as follows: “ engaged any person as a ‘Common carrier’ ‘carrier’ means or hire, foreign common carrier for interstate or communication foreign energy, wire or radio or in interstate or radio transmission of subject except where made common carriers not reference is not, engaged broadcasting chapter; person shall but a radio engaged, carrier.” person as be deemed a common insofar such so (h). 1066, amended, as 47 U. S. C. 153 Stat. § 1083, amended, 47 as U. S. C. 307. Stat. § 1082, amended, provides as U. Section 48 Stat. C.S. § part: in relevant
“Except provided chapter, in this as otherwise the Commission necessity time, public convenience, interest, re- from time to quires, shall—
“(b) by each Prescribe the nature of the service to be rendered any class; class and each station within of licensed stations “(r) regulations prescribe Make such restric- such rules and *14 conditions, lаw, may necessary be tions not inconsistent with carry .” provisions chapter to out the of this . . . or neces- convenience, interest, “public with
sistent that: specifically provides 326 of the Act § sity,” be understood chapter shall in this “Nothing power to the Commission give construed signals communications or radio censorship over the no by any regulation radio station, transmitted by or fixed promulgated or condition shall be right with the which shall interfere Commission of radio communication.” speech free means C. 326. § U. S. Congress
From
clear that
provisions
these
seems
develop with
permit private broadcasting
intended to
pub-
with
journalistic
freedom consistent
its
widest
public
lic
when the interests of the
obligations. Only
private journalistic
are found to
interests
outweigh
power
of the
will
be
government
broadcasters
asserted
pro-
within
framework of the
Act. License renewal
which the
can
are
ceedings,
listening
heard,
principal
Com-
regulation.
of such
See
means
Office of
FCC,
munication
United Church
Christ v.
123 U. S.
App. D.
F. 2d 994 (1966),
C.
and 138 U. S.
328,
App. D.
112,
(1969).
C.
Subsequent developments regulation broadcast illus- trate how this regulatory par- scheme has evolved. Of ticular importance, light Congress’ flat refusal impose a “common carrier” of access for right persons all speak wishing out on issues, is the Commis- sion’s Doctrine,” “Fairness which gradually evolved over years spanning federal regulation of the broadcast media.8 Formulated under the power Commission’s 1959, Congress In give amended statutory- 315 of the Act to § approval Sept. 14, to the Fairness 1959, 1, Doctrine. Act of § 4yU. (a). Stat. S. C. §315 summary development
For a and nature of the Fairness Broadcasting Doctrine, FCC, Red Lion see Co. 395 U. S. 375-386
Ill “public interest,” with consistent regulations issue responsibilities affirmative imposes two the doctrine impor- of public on of issues coverage the broadcaster: fairly reflect differ- be and must adequate tance must In Lion, Red at 377. viewpoints. 395 U. ing See S., obligations, Fairness Doctrine the broad- fulfilling the provide presentation caster must free time for the Cullman opposing paid sponsor views if a is unavailable, Co., Broadcasting P F Reg. (1963), 25 & Radio must on if public initiate issues no one programming else do John J. P & F Dempsey, seeks to so. See (1950); Lion, supra, Radio Red Reg. at 378. physically impossible provide Since it time for is all viewpoints, however, right to exercise editorial judgment granted was to the broadcaster. broad- caster, therefore, significant journalistic is allowed discre- tion deciding how to fulfill best the Fairness Doctrine obligations,9 although that discretion is bounded rules designed to assure that in fairness interest In furthered. its decision in cases, instant Commission described the boundaries as follows:
“The most basic consideration respect the licensee cannot off rule the air coverage of important issues or views private because of his ends or beliefs. As a trustee, must present he 9 Madalyn Murray, See F Reg. (1965). 5 P & Radio 2d 263 Factors that exercising broadcaster must take into account following: his discretion include the determining “In specific requests time, whether to honor inevitably will station questions be confronted with such as whether subject considering, is worth viewpoint whether the of the re- questing party already received sufficient amount of broadcast time, may or groups whether there not be other available individ- might appropriate spokesmen uals who particular more for the point person making request.” group] view than the [or Report Editorializing by Licensees, Broadcast 13 F. C. C. 1251-1252 on con- community views voices
representative importance to his which are of troversial issues . . This also some listeners. . means of exclud- policy A licensee partisan. voices must be *16 always presenting itself ing partisan voices and run manner would in a inoffensive bland, views commitment ‘profound counter the national robust, public debate on should uninhibited, issues Sullivan, New Go. v. wide-open.' and York Times Red Lion Broad- 376 U. 270 also 254, (1964); S. see casting Co., C., 18) F. C. (n. Inc. v. 395 U. S. 392 (1969) . . 2d, . 25 F. C. C. at 222-223. are Thus, under the Fairness Doctrine broadcasters responsible the providing listening viewing public and presеntation with access to a balanced of information importance.10 on issues of The public principle basic underlying that responsibility right is “the any to be rather than on the informed, right part the regula The adopted component Commission has also various Doctrine, tions under the Fairness which are the most notable of editorializing” “personal “political the and which we attack” rules upheld “personal provides in Red rule Lion. The attack” “[w]hen, during presentation issue the of views on controversial character, public importance, upon honesty, an attack is made integrity qualities personal person,” or like an identified give notify person oppor licensee must and him an attacked tunity respond. g., Similarly, “political E. CFR 73.123. § editorializing” that, provides political rule when a licensee endorses a editorial, give candidate in an he other candidates or their must g., id., respond. spokesmen opportunity an E. 73.123. § Commission, course, beyond steps has taken other diversity expression expand Fairness Doctrine to on radio broadcasting multiple ownership rules chain television. The g., id., 73.131, E. re- examples. 73.240. are established More §§ limiting cently, promulgated network Commission rules television syndication practices reserving prime non- time for 25% Id., (k). programs. 73.658 (j), network §§ any Government, any broadcast licensee individual member of particular to broadcast his own any on . Report views matter . . on Editorializing by Broadcast Licensees, F. C. 1249 (1949). C. Consistent with philosophy, the Commission on sev- eral occasions has ruled private that no individual or group a right to command the use of broadcast See, g., facilities.11 e. Dowie A. Crittenden, 18 C. F. C. Margaret 2d 499 (1969); Scherbina, Z. 21 F. C.C. 2d 141 (1969); Assn., Boalt Hall Student 20 F. C. C. 2d 612 (1969); Madalyn Murray, 40 F. C. C. 647 (1966); Democratic State Central Committee California, 19 F. C. C. 2d (1968); Broadcasting U. S. Cory., 2 F. C. C. 208 (1935). Congress yet has not seen fit to alter that although since policy, 1934 it has amended Act several occasions12 and considered various
11 Appeals, respondents, The Court of the dissent this case Broadcasting Co., dictum in United have relied on 10 F. C. C. 515 (1945), illustrating approval right as private pur Commission of a to air chase time the of discussion controversial In issues. that case complaint alleged, only policy not that the station had a refus of ing public issues, to sell time for the discussion of but also that applied policy discriminatory manner, station had its a a factor presently Furthermore, not shown in the cases us. before the decision years fully was handed down four before the had Commission de veloped Report and articulated the Fairness Doctrine. See on Edi by torializing Licensees, (1949). Thus, 13 C. 1246 Broadcast F. C. even if allegation the decision is read without reference to of discrimination, merely statement, during it stands as an isolated made period working prob in which the Commission was still out the public issues; lems associated with the discussion of the dictum has by not been followed since and has been modified Fairness Doctrine. 12 1959, earlier, In Congress (a) noted of as amended 315 § give statutory approval Act to to the Commission’s Fairness Doc Sept. 14, 1959, 1, 557, trine. Act 73 Stat. 47 U. S. C. 315 § § (a). Very recently, Congress (a) amended Act § to authorize the to Commission revoke a station license “for willful with individuals private vested would have proposals access.13 right a proceed next mind, we background
With this accept edi- refusal a broadcaster’s whether consider violative action governmental advertisements torial Amendment. the First
Ill
.
abridging
no law . .
shall make
“Congress
That
on
press”
gov-
is a restraint
speech,
or of the
freedom
Public
private persons.
that of
action,
ernment
Poliak,
(1952).
Utilities Gomm’n v.
115 presents holding The under review thus Amendment. implications. novel with question, far-reaching one the Broad- Responsibility The Editorial of Jaffe, See Access, caster: Harv. Reflections on Fairness 85 L. 768, (1972). Rev. 782-787 Appeals of held in- Court that broadcasters are strumentalities the Government for First Amendment purposes, relying thesis, on familiar in other con- texts, granted that broadcast licensees are use of part “proxies” domain regulated are as 'and “ ‘fiduciaries’ people.” App. U. S. D. atC., 191, F. 2d, at 652. These characterizations are validity they without for some purposes, do not but resolve the sensitive constitutional issues inherent deciding particular whether a subject licensee action is .to First Amendment restraints.14
In dealing with the broadcast in other media, con- texts, private line between conduct and governmental action cannot be defined reference any general for- mula unrelated to particular exercises governmental authority. When governmental alleged action is there must analysis quality cautious degree relationship Government particular to the acts in ques- “Only by tion. sifting facts and weighing circumstances can the nonobvious private involvement State conduct be attributed its significance.” true Burton v. Wilmington Parking Authority, 365 U. (1961). S. analysis The dissent offers the same Appeals. as the Court of distinguished As one recognized, commentator has line of rea soning concept very Jaffe, of state action far.” “stretchfes] Responsibility The Editorial of the Broadcaster: Reflections Access, Fairness and 85 Harv. L. Rev. The notion engaged “governmental that broadcasters are action” because they “public” frequencies they are licensed to utilize and because regulated superficially but, appealing are as Professor Jaffe ob serves, entirely satisfactory.” Id., “not at 783. *19 encom- Amendment the First whether deciding In kept must be here, challenged conduct passes the system of our part with a vital dealing we are mind that swiftly be- media have The electronic communication. ideas and factor the dissemination major come a broadcast sta- 7,000 than licensed information. More function. To important this perform undertake to tions media role they printed with the a extent share large people informed. keeping a half cen- As we have with the advent of radio seen, a fundamental choice tury Congress was faced with ago, ownership total and control of between Government countries —or new medium —the choice of most other impact po- Long some other alternative. before the opted was realized, Congress tential of the medium system private broadcasters and regulated a licensed by history The legislative suggests Government. only by choice was influenced not traditional atti- private enterprise, by tudes toward but desire to main- necessary tain for so far as cоnsistent with licensees, regulation, journalistic a traditional role. The historic censorship aversion to led Congress to enact 326 of § the Act, explicitly prohibits which the Commission from with the interfering speech exercise of free over the frequencies. broadcast pointedly Congress refrained from divesting broadcasters of their control over the selection of voices; (h) § 3 of the Act stands firm as a congressional statement broadcast are not to be treated licensees as common carriers, obliged accept whatever is ten- dered public. members provisions Both these clearly manifest intention of Congress to maintain journalistic substantial measure of independence for the broadcast licensee.15 dissenting appear view would to “want to have it both
ways” question on the of Government control media. broadcast finding governmental action, In per- the dissent stresses what is *20 very early slowly, but scheme evolved regulatory “public developed role in terms a the licensee’s fairly duty impartially the and charged trustee” with In structure the public audience. informing the but the “overseer,” acts in essence as an Commission responsibility for primary fairness, initial and balance, role of objectivity and rests with the licensee. This the an “overseer” and ultimate arbiter Government as and and guardian the interest the role journalistic as a “free call agent” licensee for a delicate balancing competing interests. The maintenance of for years this balance more than 40 on both called the and the walk regulators “tightrope” licensees to a preserve the First values into Amendment written the Act and Radio its Act. the Communications successor, The tensions inherent a such regulatory structure more emerge clearly compare when private we a news- paper awith broadcast power pri- licensee. The of a vately owned newspaper political, advance its own social, economic by views is bounded two only factors: first, acceptance of a sufficient number of readers— and hence advertisers —to assure financial and, success; second, journalistic integrity of its and pub- editors A lishers. broadcast licensee has a large measure of journalistic freedom but not as large as that exercised ceived as an statutory virtually “elaborate governing scheme all aspects of industry.” “Indeed,” broadcast suggests, the dissent agency guidance “federal review and of broadcaster conduct auto- matic, continuing, pervasive.” Post, at 176-177. Yet later in dissent, discussing when right constitutional a need for access, objects the dissent independence the substantial afforded covering broadcasters importance. Thus, issues of said that “broadcasters retain almost exclusive over control viewpoints covered, selection issues and to be the manner of presentation and, perhaps important, Post, speak.” most who shall at 187. what it might balance A must newspaper.
a licensee with what it is entrepreneur prefer private to do as perform To its “public trustee.” required to do as oversee without Commission must statutory duties, the difficulty and suggests something of censoring. This Act—a Communications delicacy administering capacity adjust flexibility and the function calling chang- to meet readjust regulatory mechanism problems and needs. ing *21 intimately case is policy challenged
The licensee journalistic related to the role of a licensee which it responsibility by primary has been initial and given policy accepting The licensee’s edi- Congress. against an torial cannot be abstract advertising examined proposition, but must be viewed in context of its journalistic It help press role. does not on us the idea that ads, editorial ads are “like” commercial for the policy spot expressly licensee’s ads is against editorial journalistic spot based on judgment a that 10- 60-second announcements are ill-suited to intelligible intelli- gent treatment of issues; the broadcaster has рrovide chosen to a balanced treatment of controversial questions comprehensive in a Obviously more form. licensee’s journalistic evaluation is based on its own judg- ment of priorities and newsworthiness.
Moreover, the Commission has not fostered the licensee policy challenged here; it has simply declined to com- particular mand action it because fell within the area of journalistic discretion. The explicitly Commission em- phasized that “there course no Commission policy thwarting the sale of time to on public comment issues.” 25 F. C. C. 226. 2d, at The Commission’s reasoning, consistent with nearly 40 years of precedent, is that so a long as licensee “public meets its trustee” obligation provide balanced coverage of issues and events, it has broad discretion to decide how that obligation will be First whether question reach the We do not
met. Com- preclude read to Act can be Amendment or the situations some determining mission from their re-examine licensees to requires interest editorial advertisements. respect with policies yet determination; made such Commission has within policy found to be has, present least, for the Congress which sphere journalistic discretion left with the licensee. is a the Government
Thus, it cannot said that com- of the broadcast licensee “partner” to the action “symbiotic rela- plained of nor is it here, engaged from the invidious tionship” licensee, profiting with the Lodge No. proxy. Moose Compare discrimination of its Irms, Burton v. 107 v. 163,174-177 (1972), U. S. with Wilmington Parking Authority, S., 365 U. at 723-724. private The First Amendment does not reach acts parties in every instance where or the Congress merely permitted Commission has prohibit failed to such acts.
Our merely conclusion is not altered the Com- because rejected mission claims of BEM and DNC concluded that challenged policy licensee inconsistent public with in interest. It is true that Public Poliak, Utilities Comm’n (1952), U. S. 451 we found governmental action to trigger sufficient First protections Amendment on a agency record involving approval of the of public utility. conduct a Though we held that the decision of a District of Columbia bus company to install radio receivers public its was buses within the reach of the First Amendment, there Con- gress expressly had authorized the agency to undertake plenary intervention into the affairs of the carrier and it was pursuant to that authorization that the agency investigated the challenged policy and approved it on public Id., interest standards. at 462. a scheme regulatory not established
Here, Congress has pervasive regulation as as for broadcast licensees important, in Poliak. More transportation public affirmatively indicated noted, Congress we have journalistic de- Act that certain Communications only to the restric- subject are for the licensee, cisions performance by evaluation of its overall imposed tions was In Poliak there public under the interest standard. worthy of had considered suggestion Congress no discretion protection exercising the carrier's interest passengers. forced on over the content communications Poliak A between distinction, perhaps, more basic transporta- with that Poliak was concerned this case is utility protection tion itself derives no from the Pic- States v. Paramount First Amendment. See United tures, Inc., 334 U. S. out spell
Were we to read First Amendment here, governmental presented action in the circumstances few on the content of broadcasts or licensee decisions processes escape of editorial evaluation would constitu- scrutiny. tional In sweeping area sensitive so concept governmental go practical action would far in nearly effect to century undermine a half of unmistakable congressional purpose to maintain —no matter how dif- ficult the essentially private journalism broadcast task — only held broadly accountable stand- interest ards. To do this Congress, as its Commission agent, must posture remain in a flexibility to chart a workable “middle сourse” in quest preserve its a bal- ance between the essential accountability and the private desired control of the media.
More profoundly, *23 it would be anomalous for us hold, name promoting the constitutional guar- antees of free expression, that the day-to-day editorial decisions of broadcast licensees are subject to kind restraints urged by respondents. To do so in the name Jour- Amendment would be a contradiction. First many rigid to the ways
nalistic
would
be lost
discretion
imposes on Gov-
Amendment
limitations
First
Application
ernment.
of such
broadcast
standards
very
of vigor-
licensees would be antithetical
ideal
ous, challenging debate on issues
interest.
Every
already
totality
licensee is
held accountable for the
performance
obligations.
its
interest
concept
independent
jour-
of private,
broadcast
by
nalism, regulated
protection
Government
to assure
the public interest,
slowly
cautiously
has evolved
years
over more than 40
and has
by proc-
been nurtured
of adjudication.
concept
esses
That
of journalistic inde-
pendence could
with
co-exist
chal-
reading
lenged conduct of the
governmental
licensee as
action.
Nor could it exist without
flexibility
administrative
meet changing needs and swift
technological develop-
ments. We therefore conclude
policies
com-
plained of do not
governmental
constitute
action vio-
lative of the First Amendment. See Mclntire v. William
Penn Broadcasting Co., 151
(CA3
F. 2d
1945),
cert, denied,
IV
There remains for consideration the question whether
the “public interest” standard of the Communications
Act requires
to accept
broadcasters
editorial advertise-
or, whether,
ments
assuming governmental
broad-
action,
casters are required to
by
do so
reason of the First Amend-
ment.
In resolving
issues,
those
we are
guided
the “venerable principle that
the construction of a
statute by those charged with its execution should be
followed unless there are compelling indications that
. .
wrong
Lion,
.
Red
At the outset reiterate what was of the Communications Act language nothing history different legislative compels its conclusion have from that reached the Commission. As we seen, Congress rejected legis- has time and various again attempts variety lative that would have mandated a say forms of individual That is not to that Con- access. gress’ rejection proposals of such mean must be taken to opposed Congress private rights access under all circumstances. Rather, point is that Congress has chosen to such questions Commission, leave with the to which it given the flexibility experiment with new ideas as changing In require. conditions this case, the Commission has decided that on balance the undesir- able effects of the right of urged by access respondents would outweigh the asserted benefits. The Court of Appeals give weight failed to to the due Commission’s judgment these matters. *25 justified in the concluding
The Commission was marketplace public in the рroviding interest access to scarcely be experiences” “ideas and would served heavily a system financially so of the weighted in favor Lion, Red affluent, those with to wealth. access Cf.. supra, at 392. Even under a first-come-first-served system, proposed by dissenting Commissioner cases,16 these could prevail views affluent well others, they over those of since would have it within their power purchase to time more frequently. Moreover, there is the substantial as Court of danger, Appeals acknowledged, 203, 146 U. D. App. C., 2d, S. 450 F. at 664, that the allotted for advertising time editorial could be monopolized by political those of one persuasion. problems
These would necessarily by ap- be solved plying the Fairness Doctrine, the Cullman including doctrine, to editorial If advertising. broadcasters were required provide time, free necessary, when for the discussion of the various of opinion on the shades issue discussed in the advertisement, the affluent could still determine in part large the issues to Thus, be discussed. very premise of the Court Appeals’ holding —that a right necessary access to allow individuals and groups the opportunity for speech self-initiated —would have little meaning to those who could not afford to purchase time the first instance.17 216, See 230, 25 F. C. C. 2d (Johnson, dissenting). 23A-235 17To inconsistency overcome suggested it has been that a system” “submarket rate be established for unable those to afford the Note, normal cost for air time. See 85 Harv. L. Rev. 695-696 (1972). proposal criticized, That justifiably, has been we think as raising problems.” “incredible Jaffe, administrative The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Ac cess, 85 Harv. L. Rev. ad- editorial applied were
If Doctrine the Fairness danger the substantial there vertising, also jeopardized. be would doctrine operation effective fully with comply hardship financial minimize To well might a broadcaster responsibilities public its available programming time regular to make forced in an expressed from that a view different holding those has-suggested BEM advertisement; indeed, editorial erosion would be a further much in brief. The result its cover- of broadcasters journalistic discretion of control over public and a transfer issues, age who are from licensees issues treatment private indi- performance to accountable for broadcast longer would not. The interest no who are viduals *26 private whim to “paramount” but, rather, be subordinate Appeals’ decision, the of a especially since, under Court from largely precluded rejecting would be broadcaster trivial that dealt with matters editorial advertisements already fairly or the broad- insignificant or covered 36, D. n. App. C., caster. 146 U. S. n. If the at 657 658. Doctrine 2d, F. Fairness the Cullman allevi- suspended doctrine were these be problems, respondents suggest might ate question we appropriate, the arises whether would have more than we such gained. abandoned have Under a of regime congressional objective coverage the balanced seriously of be public would threatened. issues can accept Appeals’ Nor we the Court of view that every potential speaker is “the best of what judge” the public listening or ought judge hear indeed the best of his or her journalistic merits views. All tradi- and experience contrary. tion is to For the better worse, for; editors editing what are selec- editing is tion and of choice material. That newspaper editors — or broadcast —can power beyond and do abuse this deny but that is no reason doubt, the discretion Con- abuse taken risks of are Calculated gress provided. of presence preserve values. higher in order to Bill of the authors the new; risks is nothing these these were evils accepted reality risks Rights than a acceptable remedy no other for which there was responsibility spirit of moderation and sense —and civility part guaranteed who exercise the those —on expression. freedoms
It to conclude that Congress was reasonable for requirеs periodic ac- public being interest informed who are entrusted countability part those they with the scarce as frequencies, use broadcast historically are. In followed balancing the delicate and the Com- regulation broadcasting Congress could appropriately mission conclude that the alloca- journalistic priorities tion of be should concentrated many. pol- the licensee rather among than diffused This icy gives some assurance that broadcaster will be answerable if legitimate he fails its meet No needs. accountability private such attaches to individual, only qualifications whose for using broad- facility cast may be point funds and abundant of view. To agree that debate on issues should “robust, and wide-open” does not mean that we should exchange “public trustee” with broadcasting, all limitations, its *27 system a of self-appointed editorial commentators. of Appeals Court discounted those by difficulties stressing merely was mandating a “modest re- form,” requiring only that broadcasters be required to accept some editorial advertising. 146 App. U. D. C., S. at F. 202, 2d, 450 at 663. The court suggested that broadcasters place could an “outside limit the total amount of editorial advertising they will sell” and the Commission and the broadcasters could develop “ 'reasonable regulations’ designed prevent domina- by tion a groups few or a Id., few viewpoints.” at 202, 126 de- If 664. the Commission 2d, at F.
203, 450 ad- to editorial Fairness Doctrine apply the cided to financial suffered result broadcasters and as a vertisements could make the “Commission thought court harm, at Id., 2d, F. 664. at necessary adjustments.” any answers to the sub- providing specific without Thus, and the by raised the Commission objections stantial repeatedly its “con- express other than broadcasters, any ability to overcome in the fidence” Commission's Commis- the cases to the the court remanded difficulties, implement development regulations sion constitutional of access. right in im-
By involved minimizing problems the difficult Appeals plementing the Court right access, such problem with of critical grips failed to come to another importance regulation and the First Amend- to broadcast control enlargement ment —the risk of an of Government over the content of broadcast discussion issues. Island, See, g., (1953); e. Fowler Rhode v. 345 U. S. Niemotko This risk Maryland, U. S. requiring of Appeals’ inherent the Court remand regulations and to be procedures requests to sort out process very heard —a li- involving editing perform censees now as to Al- regular programming. though by use aof resource the broadcast permits a media limited degree of surveil- Government lance, as is not private media, true with respect see National Broadcasting Co. v. States, United 319 U. S., 216-219, power licensees, Government’s over we noted, by have no carefully means absolute and is circumscribed the Act itself.18 constitutionally Under a commanded Government supervised right-of-access system urged by respondents and mandated by Appeals, Court of the Commission 8, supra. See n. *28 day-to-day to oversee far more of the required would operations conduct, deciding ques- of broadcasters' such particular tions as whether a individual or has group had present viewpoint opportunity sufficient its particular viewpoint already whether a has been suffi- a ciently Regimenting aired. broadcasters too radical therapy respondents for the ailment of. complain
Under the Fairness Doctrine the Commission’s re- sponsibility a judge is to whether overall per- licensee’s formance a good-faith indicates sustained effort to meet fairly interest being fully informed.19 responsibilities The under a right-of-access Commission’s system would tend to a draw into case- continuing by-case determination of who should be heard and Indeed, when. the likelihood of Government involve- so great ment it has been suggested that accepted principles constitutional against control of speech content would need to be respect relaxed with to editorial advеrtisements.20 To sacrifice First Amend- protections speculative ment for so a gain is not war- ranted, and it was well within the Commission’s discretion to construe the Act so as avoid such a result.21
The Commission is also entitled to take into account reality very that in real sense listeners and viewers a “captive constitute audience.” Cf. Public Utilities Comm’n v. Poliak, S., 463; U. Kovacs Cooper, (1949). S. 77 “captive” U. nature of the broadcast audience was recognized early as
19 Report Editorializing by Licensees, See C., Broadcast 13 F. C. at 1251-1252. 20 Note, See 85 Harv. L. Rev. urged
21 DNC recognize right in this Court that we at least parties purchase of our purpose national air time for the of dis cussing public principled issues. We see no means under the First favoring by organized Amendment political parties access over groups other and individuals. *29 remarked Secretary Hoover
when Commerce lis- radio “the that Conference Radio National Fourth of reader option the same have does not tener not he is which advertising ignore has —to publications of his set.” may its invasion resent he interested —and in our pervasive more became media broadcast theAs In a recent acute. more become society, problem promul- power to the Commission’s upholding decision Bazelon, Judge cigarette advertising, gate regarding rules noted some Appeals, unanimous Court writing for a commercial: ubiquitous the effects unless messages are communicated “Written affirmative requires an they reading read, are 'in contrast, are messages, act. Broadcast scarcely there omnipresent radio, air.’ an age In part know citizen who does not some breathes Similarly, leading jingle by heart. cigarette ordinary an watcher can avoid habitual television only frequently leaving these commercials doing some other room, changing channel, such affirmative act. It is to calculate the difficult impact subliminal pervasive propaganda, may if to, which be heard even not listened but it may reasonably greater impact than the thought FCC, the written word.” 132 U. S. Banzhaf D. App. 14, 32-33, C. F. 2d 1082, 1100-1101 cert, (1968), denied, 396 (1969). U. S. 842 to say It is no answer pervasive because tolerate we commercial advertisements can its politi- we also live with counterparts. cal
The rationale for the of Appeals’ Court im- decision posing a constitutional right access on the broadcast media was impermissibly licensee discriminates
22Reprinted Hearings before the Senate Inter Committee on Control, state Cong., Commerce on Radio 69th Sess., 1st refusing while by accepting commercial advertisements relied on decisions editorial advertisements. court state-supported newspapers pub- holding that school prohibited by lic were Amend- companies transit First from excluding ment controversial editorial advertise- in favor of commercial advertisements.23 The ments *30 also of attempted court this case to some our analogize may constitutionally ban holding decisions that States protected speech permit- certain while at same time Louisiana, public Cox speech other areas. v. 379 ting Island, Fowler v. U. 536 Rhode 67 (1965); S. 345 S.U. (1953); Maryland,, Niemotko v. 340 U. (1951). S. 268 theme of pro- This “invidious discrimination” against speech tected is echoed the briefs of BEM and DNC Respondents rely this Court. also on our recent de- in Crayned Rockford, cisions v. City 408 104 U. S. of (1972), Dept, Chicago Police v. Mosley, 408 of 92 U. (1972), city S. where we held unconstitutional ordinances that permitted “peaceful any picketing of school involved in a labor dispute,” id., 93, pro- at but hibited demonstrations for any other purposes on the streets and within sidewalks 150 feet of the school.
Those provide decisions little guidance, in re- however, solving question whether the First re- Amendment quires the private Commission to right mandate of to the access broadcast media. In none of those cases did the forum sought expression have an affirmative and statutory independent obligation provide full and fair coverage public of issues, such as Congress imposed on 23 Regents Lee v. Board Colleges, State Supp. 306 F. 1097 of of (WD 1969), aff'd, (CA7 Wis. 441 Zucker v. 1971); F. 2d 1257 Panitz, (SDNY Kissinger Supp. 299 F. 102 v. New York 1969); City Transit Authority, Supp. (SDNY 274 F. Hillside 1967); 438 Community Church, City Tacoma, Inc. v. 63, 76 Wash. 2d District, Wirta Alameda-Contra Costa Transit (1969); P. 2d 350 2d 68 Cal. P. 2d “discrimina- there is no short, In licensees. broadcast
all case. in this speech present controversial against tion” to be discussion whether there is not here question The the broad- importance controversial issues are issues what determine rather who shall media, but cast and when. by whom, to be discussed asserted Appeals of the Court opinion broadcasters it allows insofar Doctrine, Fairness discussion over the judgments journalistic exercise certain inter- public’s to meet issues, inadequate court system, present informed. The being est in which paternalistic structure ... to a held, “conforms ‘im- are decide what issues and bureaucrats licensees format, and the ‘fully’ them, to cover and how portant,’ C.,D. App. style coverage.” 146 U. S. time and advertising F. The forced sale at 656. 2d, would, according announcements spot editorial time for remedy deficiency. Appeals majority, to the Court *31 ad- premised was on the notion that That conclusion involves opposed programming time, vertising time, as expression” because ad- separate a mode of “special and is content, programming gen- unlike vertising content, erally prepared Thus, the advertiser. edited policy a broadcaster’s ad- concluded, against using court vertising messages “may ignore time for editorial well opportunities public’s to enliven and enrich the overall Id., information.” F. 2d, at at 658. Court Appeals’ would holding large serve to transfer responsibility share of for balanced from broadcasting an identifiable, entity un- regulated licensee—to —the regulated speakers who could afford cost.
We reject the suggestion that the Fairness Doctrine permits preside “paternalistic” broadcasters over re- Lion, Red gime. See 395 U. atS., 390. That doctrine admittedly always has not brought public to the perfect indeed, consistently even or, high-quality treatment of all public remedy events and but the does not lie issues; responsibility. The Commission stressed diluting licensee obli- that, fulfilling while has discretion its licensee gations Doctrine, required under the Fairness “present representative community and voices on views importance lis- controversial issues which are [its] teners,” prohibited “excluding partisan and it is from always a bland, voices and views in presenting itself . inoffensive manner . . 25 F. C. 222. A C. at 2d, risk only broadcaster at the neglects obligation his losing license.
Conceivably at Com- Congress some future date may mission —or the kind devise some broadcasters — limited right of access and de- practicable is both sirable. Indeed, proceed- the Commission noted these ings that advent cable will afford in- television opportunities creased discussion issues. In proposed its rules on cable television the Commission has provided systems that cable in major television markets
“shall maintain at least one specially designated, noncommercial public access channel available on a first-come, system nondiscriminatory basis. The shall maintain and have available for use least minimal equipment and facilities neces- sary for production of programming for such a channel.” 37 Fed Reg. 3289, (a)(4). 76.251 § For the present, the Commission conducting a wide- *32 study ranging into the effectiveness of the Fairness Doc- trine to see what needs to be improve done to the cov- erage presentation and of public on issues the broadcast media. Notice of in Inquiry Docket 30 F. C. C. 19260, 2d 26, 36 Fed. Reg. 11825. Among study other things, the will attempt to determine whether any “there is feasible method of providing access for discussion of issues 132 fairness doctrine.” the requirements
outside the how- clear, made it The Commission 2d, F. 33. C. C. Fairness discard intend to it does not ever, that private accept all broadcasters require Doctrine or inquiry air The Commission’s time.24 demands of the prior to the decision this score was announced way. under hearings are in this case and Appeals Court of ma- Appeals by Court problems perceived The history new; no we have jority seen, are means as of the the activities Communications Act and continuing years of 40 reflect period over a Commission com- regulation achieve reasonable search for means to of the rights Amendment patible with First pending hearings and the The Commission’s licensees. very step process. At the continuing are one but necessarily dynamic least, courts should freeze this American process holding. into constitutional See Co., Lines, (cid:127)& R. Commercial Inc. v. Louisville N. 571, U. S. 590-593 Appeals judgment of the Court
Reversed. Stewart, concurring. Justice Mr. I II join
While of the Court’s opinion, Parts .1 my closely opinion III, approach Part views those Douglas by Mr. expressed concurring Justice judgment.
24Subsequent Appeals’ to the de announcement of the Court of cision, comply expanded scope inquiry the Commission of the Appeals’ Inquiry with the Court mandate. Further Notice of 19260, 554, Reg. in Docket C. C. 2d 3383. After F. Fed. granted stayed Ap we certiorari and mandate Court of peals, expanded inquiry withdrew notice of an the Commission study originally planned. its Order and Further continued Inquiry in C. 2d Notice Docket 33 F. C. Fed. Reg. 4980.
133 from the Government prohibits The First Amendment press.1 Private broadcasters upon controls imposing States v. Paramount surely part press. are United Pictures, Inc., here Court U. S. 166. Yet today that the Appeals agree, the dissenters held, requires to impose First Amendment the Government upon preserve private controls broadcasters —in order to appellate First Amendment “values.” The court accom- plished simple this convolution strange device private are holding that broadcasters Government. path eventually This is step along that could lead private proposition newspapers “are” Govern- press ment. Freedom of In gone. would then be place its we would such governmental have controls upon press majority any as a par- Court at ticular moment might consider First Amendment “val- require. ues” to specter. It is a frightening
I
There is
appeal
some first-blush
in seeking
analogies
out
from
areas
the law
governmental
where
involvement
part
private parties
of otherwise
has led the Court
to hold that certain activities of
parties
those
were tanta-
mount
governmental
action.2 The evolution of the
action”
“state
concept under the Fourteenth Amendment
is one
analogy.3
available
Another
the decision of this
Const.,
U.
I, provides,
S.
pertinent part,
Amdt.
that “Con
gress shall make no
abridging
law . .
speech,
.
the freedom of
or
press
.
. .”
.
Amalgamated
Employees
See
Logan
Food
Valley
v.
Plaza, 391
Railway
308;
Employes’
U. S.
Dept.
Hanson,
225;
351 U. S.
Public Utilities
Poliak,
Comm’n v.
451;
343 U. S.
Marsh v. Ala
bama,
When enacted Act of 44 Congress 1927, the Radio Stat. 1162, fóllowed with the Federal Communications Act of 47 1934, 1064, seq., 151§ Stat. U. S. C. et it was responding to then-evident need to regulate to access public every airwaves. Not member could air chose, broadcast over the as he since scarcity subject character as tо become constitutional limitations placed upon Newton, state action.” Evans v. 299. U. S. Earlier, Wilmington Parking Authority, Burton v. U. S. privately Court held that a owned restaurant located within public parking garage sufficiently was authority involved with state bring racially its discriminatory proscription actions within the of the Fourteenth Amendment. 4 See, g., e. United States v. Pictures, Inc., Paramount 334 U. S. 131, 166. The Federal prohibits Communications Act also Commission interfering from with right speech by of free “the means of radio communication.'’ 47 U. S. C. 326. § a sure frequencies sys- made this road to chaos.5 The by hybrid. tem selected was a Congress The Federal (succeeded Radio Commission Federal Communi- Commission), was to license cations broadcasters for no three-year periods. more than C. 307 (d). § U. S.
licensees, though subject regulation, some were companies. private
Scarcity meant more than a need to limit access. Be- cause access was to be limited, thought necessary it was for the regulatory apparatus to into account pub- take lic interest “the obtaining practicable best service to *35 community by reached his broad- [the licensee’s] FCG Station, v. Sanders casts.” Brothers Radio 309 U. S. 470, 475. Public regulation not, has then, merely been a matter electromagnetic engineering the sake of clear. keeping signals It has also regula- included some tion of programming. Writing defense of Commis- regulations sion regarding chain Mr. broadcasting, Jus- tice Frankfurter said: provisions “These the Act], [of individually and in preclude the aggregate, the notion empowered Commission is only deal to with technical and engineering impediments ‘larger ” and more effective use of radio in the interest.’ Broadcasting National Co. States, v. United 319 U. S. 217. 190, time,
Over federal regulation of broadcasting public interest has tanto, been extensive, and, pro rightly wrongly been held to be tolerable under the First Amendment. We now have the Fairness Doctrine, with personal-attack, its editorial-reply, and fair-coverage- requirements.6 of-controversial-issue In Red Lion Broad- history For regulatory legislation regarding broadcasters, Broadcasting see Red Lion FCC, Co. v. 367, 375-386; 395 U. S. Broadcasting National States, Co. v. United 190, S.U. 210-214. personal-attack editorial-reply appear rules at CFR 73.123, 73.300, 73.598, 73.679. The aspect §§ issue of the was held Doctrine FCC, 395 U. S. Co. v. casting regulation governmental permissible to constitute The Court Amendment. despite First broadcasters, said: individuals substantially more are there
“Where frequencies are there than to broadcast want who First unabridgeable an posit idle to is to allocate, to the comparable to broadcast right Amendment write, or speak, every individual right . . . publish. frequen- scarcity of radio
. . Because re- put permitted cies, the Government views whose in favor of others on licensees straints But medium. unique on this expressed should in free retain their interest people as whole have the right and their collective speech radio pur- consistently with the ends medium function right Amendment. It poses of the First broad- listeners, right the viewers and Id., 390. paramount.” which is casters, *36 paid applicable been held to Fairness Doctrine has v. advertising as well as to other programming, Banzhaf FCC, D. F. And App. 132 C. 405 2d 1082. the 14, U. S. broadcasting recognized interest has been as a part rationale for liberalized of listener standing requires adequate give coverage Doctrine to Fairness broadcaster public issues, fairly reflecting divergent United views. Broad- casting Co., 515; Broadcasting Co., F. 10 C. C. New P F& Radio Reg. 258; generally Applicability see of Fairness Doctrine in Handling Importance, of Controversial Issues of Public 29 Fed. Reg. coverage provided 10415. This be must at the broadcaster’s expense necessary, Broadcasting own Co., if Cullman P F 25 & Reg. 895, duty by providing Radio and the be programming must met obtained at the licensee’s own initiative if it is available from no Dempsey, other source. John Reg. J. 6 P & F Radio 615. licensing proceedings. in Commission groups Office of FCC, Church Christ Communication United D. F. 2d 994. App. U. S. C. history however,
Throughout long regulation, important recognized been that broadcastеrs retain has power freedoms, and that Commission's regulatory by Quite may required from apart limits. what itself, regulatory legislation First Amendment makes clear what are. some these freedoms Section 3 (h) Act, provides (h), U. C. 153§ S. broadcasters are not to be treated as common carriers. Were broadcasters common within meaning carriers they Act, subject would be to 47 §§ U. S. C. 202. pertinent Section 201 provides, that: part,
“(a) duty every It shall be the common car- rier engaged or foreign interstate communication or wire radio to furnish such communication service-upon reasonable . . .” request therefor . provides Section 202 that:
“(a) any It shall be unlawful for common carrier any unjust make or unreasonable discrimination in charges, practices, classifications, fa- regulations, cilities, or services for or in connection with like communication service, directly or indirectly, by any means or or device, to make or give any undue or preference unreasonable or advantage any par- ticular person, class of persons, or locality, or to subject any particular person, class persons, locality any undue or unreasonable prejudice or disadvantage.”
The Act also specifically gives licensees “freedom of speech”:
“Nothing in chapter this shall be understood or construed give power Commission the of cen- sorship over the radio communications signals or no regulation station, by any radio transmitted by the fixed or promulgated or shall condition right with interfere which shall Commission of radio communication.” by free speech means TJ. 326. § S. C. Federal Com- whole, as a when examined
Thus, owned system privately munications Act establishes though regulated licensees, These broadcast licensees. fairly “public broad interest” under a the Commission from whatever additional quite apart standard, have, may provide, important protections the First Amendment statutory conducting programming. their freedoms Lion, that, supra, despite
In Red this Court held may impose a so- Amendment, First the Commission upon broadcasters, requiring called Fairness Doctrine coverage of various and con- present them balanced I public importance. flicting agreed views issues Lion, in Red with although with Court considerablé I doubt, thought because Government much was lim- regulation program content within outer tolerability. its of First Amendment Were the Com- accept mission to broadcasters to some amount require part of editorial as interest advertising upon mandate which their are conditional, licenses issue in the posture before us would be same as was Lion, the Fairness Doctrine itself in Red and we would governmental have determine whether additional control of broadcasters was consistent with the statute under First Here, and tolerable Amendment. how- ever, imposed the Commission no such but requirement, private reject left free to accept broadcasters such they advertising Appeals saw fit. Court held compels the First Amendment the Commission require accept broadcasters to advertising, such because equated action with governmental broadcaster action.' *38 only statutory question holding This raises serious (h) Act, provides § under 3 of the which that broadcasters are not to me to reflect an carriers, common but seems extraordinarily odd view of the Amendment. First
The dissenting opinion today support argues, decision of the Court of a limited Appeals, only right by respondents access is sought required by the First and that such a limited Amendment, right turn would not broadcasters into common The carriers. respondents argue, differently, somewhat the Con- requires only “responsible” stitution individuals and groups right purchase given advertising. These positions by are said to be arrived at somehow balancing First if “competing private Amendment values.” But are broadcasters how Government, can the First Amend- give only ment a limited right to those who would speak? Since when has the First Amendment given Government the right speakers to silence all it does not “responsible?” consider
The First protects press Amendment govern- from mental interference; no protection confers analogous on the Government.7 To hold that action broadcaster is governmental action would simply strip thus broad- casters of their own First They Amendment rights. would be obligated to grant the demands of all citizens to be heard subject over the air, only regula- to reasonable tions as “time, place and manner.” Cf. Police Dept, of Chicago Mosley, 98; Louisiana, 92, U. S. Cox v.
7 Government is not restrained the First Amendment from controlling expression, its own cf. New York Times Co. v. United States, 403 U. S. J., 728-729 concurring). As Pro (Stewart, fessor Thomas written, purpose Emerson has “The of the First protect Amendment private expression is to nothing in the guarantee precludes government controlling from its own ex pression agents.” System that of its of Freedom Ex pression S. 345 U. Hampshire, v. New Poulos 554; 379 U. S. If, U. 569. Hampshire, New S. Cox v. 395; pub- proper analogy it, today would have dissent *39 for are Government if broadcasters is, lic forums8-—that are inevi- broadcasters purposes Amendment First —then For carriers. of common position to the tably drawn respect with of Government precisely the status First status mandated forums —a to Amendment.9 action governmental broadcaster action
To hold that wholly inimical to broad- a result produce thus would wholly at odds rights, Amendment and own First casters' by Congress system established broadcasting with many those approving legislative with our and decisions10 8 only speak operate if right to can flourish it is allowed to “[T]he schoolroom, public park, a a effective forum —whether in an frequency." hall, meeting soapbox, a or radio and television a town a Post, at 193. recognized scope Emerson has of the “access” Professor only argument: “The licensee therefore can be considered as agent government, public, process or trustee First Hence would have no direct further allocation. the licensee own, rights except expression.” as to own Amendment his his Supra, n. 663. say
Though
during
the licensee would be
to
what it wished
its
free
broadcasting,
mean,
might
own
whatever
it seems
clear
special
licensee
have
time
would
no
claim to broadcast
and would
entirely
program
according
lose
the freedom
and
its
schedule
judgment, values,
Dept,
Chicago
priorities.
own
Cf. Police
Mosley,
92, 98;
Louisiana,
536, 554;
v.
Cox
408 II. S.
v.
379 U. S.
Hampshire,
395;
Hampshire,
Poulos v. New
345 U.
v. New
S.
Cox
develop
procedurally
II
Part
IV of the
I
opinion,
it,
Court’s
understand
primarily
statutory
respondents’
seems
to deal with the
argument
operate
obligation
broadcasters
—that
*40
in
“public
supports
the
of the
judgment
interest”
the
of Appeals.
my
Court
Brethren
concurring
Yet two
understand
a
Part IY as
Amend-
discussion
First
issue that would
in
ment
exist
these cases
the action
were
equated
broadcasters to be
with governmental action.
So,
my
according to
Brother
“the
govern-
Blackmun,
mental action issue does not affect the
this
outcome of
Post,
Appeals
case.”
at 148.
The Court
also con-
statutory
flated the constitutional
issues
these
It
its
styled
cases.
reasoned that whether
decision “is
a 'First Amendment decision’ or
a
interpreting
as decision
public
the fairness and
interest
'in
requirements
light of
the First Amendment’
little.”
App.
matters
U. S.
D.
F. 2d,
at 649.
C.,
any
suggests
disagreement
my
None of
part
this
on
with the evo
lution of
recog
“state action” under the
I
Fourteenth Amendment.
Lodge
nize that
if
Irvis,
Moose
No. 107 v.
407 U. S.
were
relevant,
rеjected
the fact
that
the Commission considered and
challenge
policy might
to broadcaster
be sufficient
to constitute
This,
fact,
“state action.”
was the basis of the Court’s decision
Poliak,
Public Utilities Comm’n v.
“In in the fact that the interest’ encompasses presentation vigorous the debate of controversial importance issues of and to public; concern the the fact that the upon language very has that inception FCC rested from its a doc- discussed, trine that these issues must be fairly; and and the fact Congress acknowledged analogous that provisions that the preclusive area, 315 are not knowingly preserved and § complementary efforts, FCC’s think we the fairness doctrine its personal component political attack and editorializing regulations legitimate delegated are a congressionally authoritjC’ exercise of S.,U. at 385. on interference proscription and its discretion
broadcaster com- by means of radio speech free right “the with really nullity. Government munication,” a Were the would, my it Brother press, the electronic operating Douglas prevented by be the First Amend- points out, exer- from content and the ment selection broadcast permitted would not be judgment. cise of editorial It any deny person name of time to “fairness” heard on the that their views had been group grounds perform precisely Yet these “enough.” broadcasters precisely enjoy these under the functions freedoms statutory these Act. The constitutional issues in are quite cases thus different. statutory point
In evaluating claims, starting principle must be the “venerable that the construction by of a with charged statute those its execution should compelling followed unless are it there indications Lion, . Red wrong S., . . .” at 381. 395 U. I Though have no here respondents doubt they were attempting to communicate what considered important to be messages, does follow that Commission erred require every when it refused broad- caster communicate messages. Contrary those to what is said dissent it is not the case a seller today, of goods is granted instant access while media, someone to discuss “seeking war, peace, pollution, or the suffering poor right Post, denied this to speak.” at 200. There is no indication that the thousands of by broadcasters regulated the Commission have anything like a uniform policy of down turning “controversial” or “editorial” In advertising. us, the cases before Business spot Executives’ rejected were advertisements single radio station. Of the three television net- only works, one turned down the Democratic National Committee’s request air time. We are told that if not many, most, do accept broadcasters advertising of *42 in broadcaster variation here. This type issue competi- diversity kind of very policy rеflects sys- under a flow ideas free protects best tion that management.13 private on predicated broadcasting tem interest for public in the it would though Even it heard, to be does advertisements respondents’ every broadcaster requires interest follow that the certainly not follow does them. And it to broadcast every forcing by be served interest would advertising. accept any particular kind of broadcaster to policies In of these diverse broadcaster light —and contrary problem that First Amendment the serious surely no presented have “com- ruling would are —there Commission misunderstood pelling indications” statutory responsibility. its
Ill favor of limit- paucity arguments There never a Appeals con- ing press. the freedom of the Court press cluded Government control of freedom greater scarcity frequencies here acceptable because for broadcasting. many But there are more broadcast- daily than ing newspapers.14 stations are And it there very The Democratic National Committee cited this lack of uniformity seeking declaratory a reason ruling from the was diversity, thought, Commission. There too much it for it to plan effectively campaign. an advertising request In the DNC’s declaratory ruling for a Commission, before it stated: “In networks, addition to the three April 1, national commercial as of were, air, stations, there 509 commercial VHF television stations, 4,280 stations, commercial UHF standard broadcast 2,111 commercial FM stations. While several these stations owners, have necessarily common every does not follow that station owned individual group an would policies.” follow the same 1,792 daily newspapers There are Ayer in the United States. Directory (1973). Compare vm Publications the number of supra. broadcasters, n. *43 no to that news- require great ingenuity argue
would all, newspapers are After papers get too Government. a limited antitrust im- Government mail subsidies and munity.15 would reasoning Appeals the Court then to the conclusion that the First Amendment lead open requires newspapers, too, compelled their be pages to all comers.
Perhaps I opinion overstate logic of the of Appeals. Perhaps Court “balancing” its First Amendment “values” would no more require than that newspapers compelled be to give “limited” access to dissi- dent voices, only “respon- then if those were voices sible.” And perhaps require it would that such access compelled only when there newspaper was a single particular community. But it would be question a close for me which of these various alternative results would be more grossly violative of the First Amendment’s guarantee of a press. free For that guarantee gives every newspaper liberty print what it chooses reject what it chooses, free from edi- the intrusive torial thumb of Government.
I profoundly trust that no reasoning such as I have attributed to the Appeals Court of adopted will ever be by this Court. I And if only have it is exaggerated, make clear the dangers that us beset when we lose sight of the First Amendment itself, march forth in blind pursuit of its “values.”
Those who our wrote put First Amendment their faith proposition press indispensable free to a society. free They believed that “fairness” far was too fragile to be left for a bureaucracy Government to accom-
15Newspapers and periodicals other receive a subsidy Government in the form postage rates, of second-class 39 CFR 132. An anti § immunity trust by is established the Newspaper Act, Preservation seq. 15 U. S. C. 1801 et § wisdom confirmed many times History plish. choice. of their accept in Red Lion persuaded was
This Court was Doctrine a so-called Fairness view that Commission’s broad- limitations of electronic unique required art. then-existing state least casting, broadcasters’ decided that we there Rightly wrongly, surely But “abridgeable.” were rights First Amendment *44 are nonexistent. rights this does not mean that those the decision And even if were in and equipoise, all else upon rest First finally of the before us were to issue I with alone, agree Amendment could “values” if mean Appeals. аnything, Court of For those “values” If they least we must choose whether should mean at this: in judgment editorial decisions are to be made the free imposed by broadcasters, individual or bureaucratic fiat, the choice must be for freedom. White, concurring. Justice
Mr. I join II, Parts and IV of I, opinion the Court’s and its I do III judgment. not, concur in however, the Part opinion.
I do not suggest that the conduct of broadcasters must always, often, even be considered that of a government for the purposes of the First Amendment. But it is at least arguable, so, strongly that the Communications policies Act and the of the Commission, including the Fairness are Doctrine, here sufficiently implicated to re- quire review of the Commission’s orders under the First Amendment. For myself, heart of the argument simply stated. The claim in these cases was that Communications Act and the First Amendment should interpreted be to confer a right of access those who buy wished to time for editorial advertising to raise political funds. The rejected Commission both the statutory and constitutional positions. To confer right contrary access, be to the Communica- said, would policies adopted and to the the Commission tions Act Fair- implement that Act. intended Congress that the complied with, ness Doctrine be but it also intended that broadcasters have wide discretion to the respect with of compliance. method There is no that requirement accept ads; they broadcasters could, instead, editorial provide their own with their programs, format, own opinion opinion sources. Congress intended that right there be no such cases; claimed these access as and, the Commission's view, recognize right require major would in statutory revisions and regulatory policy. The contrary Commission also to the ruled, member, views of its dissenting rejection wholly asserted right access was with consistent First Amendment. I
In ready this context am not conclude, is done III may Part the First Amendment opinion, put for lack of official action necessary aside invoke its *45 proscriptions. But, arguendo, assuming, as Court does in Part IV of its opinion, that or the Congress is sufficiently Commission involved the denial ac- of cess to the broadcasting require media to review under the First I Amendment, would reverse the judgment the Court of Appeals. constitutionality Given the of the Fairness Doctrine, Part accepting IV of the Court’s I opinion, difficulty have little that concluding statu- tory and regulatory recognition of broadcaster freedom and discretion to up make their own programs and to choose their method of compliance with the Fairness Doctrine is consistent with the First Amendment. Justice Blackmun,
Mr. Justice with whom Mr. Powell joins, concurring.
In Part IV the Court determines "whether, assuming governmental action, broadcasters required” are to ac- First “by reason advertisements editorial cept that Ante, concludes 121. The Court Amendment.” “continuing it froze the when Appeals erred Court com- regulation achieve reasonable for means search of the rights First Amendment with the patible Ante, holding.” “a constitutional and the licensees” into' Amend- that the First conclusion The Court’s at 132. reached the Court the result compel not ment does action governmental Appeals demonstrates I there- of this case. outcome does not affect the issue it. deciding refrain from fore judgment. in the Douglas, concurring Mr. Justice below, judgment join reversing While I the Court I different reasons. quite do so in the stand
My and radio conclusion is TV as First Amendment protected position same under the philosophy newspapers magazines. do for the fear that requires result, First Amendment had intrusion government Madison and Jefferson than it is perhaps even more relevant to TV and radio fear was newspapers and other like That publications. only not spectre founded on the lawless government a faction that government but under control of desired to on the good foist its of the common views In people. expressed popular terms that view been follows: ground “The rules democracy, grown, of our as has necessarily require press, a free a responsiblе temperate any halfway stages. one. There aren’t *46 Aristophanes democracy As saw, power means that is generally by conferred on second-raters third- raters, whereupon everyone else, from first-raters fourth-raters, great glee try moves with dis- messy them. It’s lodge politicians but most under- very can’t be otherwise and stand that it well democracy.” reviewing Epstein, still be a Stewart, From Nowhere: News Television the News (1972), World, Book March Washington Post, 1973, pp. 4-5.
I Public broadcasting, course, quite raises different problems by from tendered those TV outlets involved in litigation.
Congress Corpora- has authorized the creation of the tion for Public Broadcasting, whose Board of Directors appointed by is by President and with the advice and consent of the Senate. 47 § U. S. C. 396. total A television and 560 radio made up stations this nationwide system of broadcasting as June 1972. See 1972 Corporation for Public It Broadcasting Report. Annual nonprofit is a organization by the terms of 396 (b) § is said not to be “an agency or establishment the United Government.” Yet, States since is it a creature of Con- gress whose in management the hands of a Board by named approved by the President and the Senate, it why difficult to see it is not a agency federal engaged “press” operating as that word is used in the First Amendment. If these cases involved Corporation, we would have a comparable situation which the United States owns and manages prestigious news- paper like the New York Times, Washington Post, or Sacramento Bee. The Government owner as and man- ager I not, would it, see pick free to and choose such news items as desired. For the First Amend- ment it may not censor or enact any enforce other “law” abridging freedom of press. Politics, ideo- logical slants, rightist or leftist tendencies play could no part design its programs. Markel, See Will It be Public or Private TV?, World, Mar. 13, 1973, p. 57; *47 150 “Improper” Against An Ultimatum
Shales, WGBH-TV: 1973, Apr. 27, Post, Influence, Washington House White by the tendered programs the specifically, More E2. p. then be turned could not cases present in respondents the down. by various may evidenced action
Governmental private activities. supervision or control forms of Authority, 715. Parking TJ. Wilmington Burton S. v. activities of licensees view that I expressed have are domain operating of the government as constitutional duties actions, so far governmental Louisiana, Garner v. concerned. See responsibilities are Lou- Lombard v. 157, (concurring); 183-185 368 U. S. Lodge No. isiana, Moose (concurring); 267, 373 U. S. Irvis, It (dissenting). 107 v. is some- U. S. Mr. idea the first Justice expressed what the same Plessy Ferguson, 163 U. Harlan in his dissent S. accepted. If that view not been a TV 554. But my radio licensee a federal the thesis of agency, were inexorably Brother Brennan would follow. For a li- precisely censee of the Federal Government would be for Public Corporation Broadcasting. situation agency A like an licensee, Government, would within limits of be bound time to disseminate all views. its an arm of the For, being Government, it would be unable by reason of First Amendment to “abridge” some sec- of thought tors in favor of others. Court not, does however, decide whether a broadcast licensee is a federal agency within the context of cases. these
II If a broadcast licensee not engaged in governmental purposes action I First Amendment, fail to see how constitutionally we can treat TV and radio differently than we newspapers. treat It would come publishers well as as surprise *48 newly created newspapers of to be informed that a editors provide bureau for “guidelines” federal would hereafter newspapers rules that would a federal promulgate give agency power to ride herd on business to publishing on make sure that fair comment all current issues was In made. Farbstein introduced a Congressman bill,1 of reported Committee, provided never out which any newspaper general published city circulation in a a population greater 25,000 only with than and in which separately one newspaper general owned circulation is published provide “shall a opportunity reasonable for presentation a balanced conflicting views issues public importance” and the Federal giving Communica- power tions Commission to enforce the requirement. I. Thomas Emerson, our leading First Amendment scholar, has stated that:
“[A]ny effort problems solve broader press by monopoly forcing newspapers cover 'newsworthy* all events and print all viewpoints, under eyes the watchful petty public officials, is likely to undermine such independence press as the now shows any without achieving real diversity.*’ System The of Freedom Expression 671 (1970). sturdy people who fashioned the First Amendment would be shocked at that intrusion of into a Government field which this Nation has been for reserved individ- uals, whatever part of the spectrum of opinion they represent. Benjamin one of the Franklin, Founders who inwas the newspaper business, wrote in simple and graphic form what I always had assumed was the basic
1 H. Cong., R. 2d 91st Sess. implicit that became tradition newspaper American early history one view In our Amendment. First open columns publisher must his was that especially paid if any controversialists, “to all news- that his declaring for Franklin disagreed, it. everyone; with for paper was not seats stagecoach, print pamphlets private distribu- he offered alter- tion, paper private but refused to fill his with ed. Mott, (3d cations.” F. American Journalism 55 1962). pow-
It is said that TV and radio have become so erful and such an mind exert influence on the *49 they by must that be controlled Government.3 Some 2Congress provided (h) person C. "a en U. S. that § gaged broadcasting not, person in radio shall as is so insofar such engaged, be deemed a common carrier/' say great decisionmaking powers “To that the media have with legal responsibilities any public defined out or formal duties of accountability put power is both to overestimate their forth meaningless a make New formula for reform. How shall we the policy? Require it York Times 'accountable' for its anti-Vietnam print support If letters to the editor in of the war? situa the grave stated, remedy fantastically inadequate. is as tion the is Times, grave. the But the is The New York situation Chicago ABC, policy Tribune, NBC, play a for and CBS role mation, clearly they responsible, example, were for not alone but re-election, run Nixon’s refusal for Johnson's decision not to for rejection troops Vietnam, the billion the from the two withdraw Haynsworth, issue, New the defeat of Carswell and dollar York bond prayer Supreme segregation, reapportionment and or Court’s the country except people implication of this The that the decisions. — theory unthinking automatons of the mere proponents the —are prejudices interests, conflicts, media, manipulated without maddening. development quite find assumption is which I an hysterical such over be based on doctrine should not constitutional good power sense and underestimation of media estimation Jaffe, Responsibility of the public.” The Editorial American Access, Harv. Rev. L. Fairness Reflections on Broadcaster: 768, 786-787 history powerful in our have exerted
newspapers —and on the thought some harmful interest have —a mind. even Thomas who knew how base Jefferson, But in- press dreamed of obnoxious could never be, government For he control of terfering. thought newspapers would be the of two greater evils.4
“I putrid . . . which deplore state into our passed, and the newspapers malignity, have spirit and mendacious of those who vulgarity, write . rapidly them. . . These ordures are depraving taste. is however an evil for which no remedy, “It there is liberty our depends on the freedom of press, and that cannot be limited without being lost.” Of there private censorship newspaper course in the field. publisher may But one who suppress fact, many there are who will it. print But if the Government fiat, censor, administrative not freedom of choice, day. carries the recently by Harry
As stated Jr.: Kalven, “It insufficiently is an aspect noticed of the First contemplates Amendment vigorous use self-help by the opponents of given doctrines, *50 political and ideas, positions. It the theory is not that all ideas and positions are entitled flourish freedom under of discussion. It is rather then that they must and endure against survive hostile criti- cism. There is perhaps paradox in that the sup- pression speech by speech part parcel is and principle of speech. freedom Indeed, one why big policy reason dictates that government keep off its hands communication that, this area, self-help of criticism singularly effective. . . . robust
“Free, criticism of government, its officers, and policy its is the essence of the democratic Jefferson, Democracy (Padover 4 T. 1939). 150-151 ed. belief,’ again quote Brandéis, 'the dialectic —of power applied 'in the of reason as through reciprocally discussion.’ The cannot government performance of the press, officers, criticize the its policies implications without its criticism carrying its of power simply and coercion. The government press’s perform- cannot be another discussant of the ance. Whether will it or a critic who not, it it is carries the threat of the censor and more often than not it wills it. Nor is it at all clear that its voice surely will be needed; there will be cham- others to pion its view of performance press.
“The balance struck, then, is avowedly, even enthusiastically, one-sided. The may citizen criticize performance and motives of his government. government may performance defend its and its policies, may performance but not criticize the and motives of its critics.” 6 The Center Maga- zine, 3, pp. No. (May/June 36-37 1973).
Red Lion Broadcasting FCC, Co. v. 395 U. S. a carefully opinion written upon was prede- built cessor put cases, TV and radio under regime. a different I did not participate in that decision and, respect, with all would not support it. The Fairness Doctrine no place in our First Amendment regime. puts It head of the camel inside tent enables administration after administration toy with TV or radio in order to serve its sordid or benevolent its ends. In 1973—as years other is clamoring to make TV and —there radio emit the messages that console certain groups. There are charges that these mass media are too slanted, too partisan, too hostile in their approach to candidates and the issues. cry
The same of protest has gone up against *51 newspapers and magazines. When Senator Joseph Me- papers in his hand holding
Carthy prime, at his was in the “Communists” State of 205 containing the names Me- McCarthy and Department Feuerlicht, Joe (R. scarcely a dozen Carthyism were there (1972)), firm for citizen’s Nation that stood the papers protection. to due and to First Amendment process right put saddle of That, was no reason however, bureaucracy on backs of publishers. federal Under Bill of are to have people our entitled extreme Rights ideas, silly partisan ideas, ideas. I true,
The same of and At believe, TV radio. they nauseating times At other times mediocrity. have they ; show the brilliance of dazzling a Leonard Bernstein they very and often far- bring humanistic influences of away into people every home.
Both TV frequently and radio news tip broadcasts news one try direction or another and even to turn a into figure disrepute. character do Yet so newspapers magazines other segments press. The standards of TV, radio, newspapers, magazines or of excellence mediocrity or —whether —are beyond the reach Government. Government —act- ing through disciplines lawyers. Government courts — makes criminal some acts doctors and engineers. But puts First Amendment beyond the reach Government federal regulation agencies news save only practices business financial which do in- volve First rights. Amendment Conspicuous Asso- ciated States, Press v. United U. S. where en- forcement of the laws against antitrust a news-gathering agency held to be was not inconsistent with First Amend- ment rights.
Government has no business collating, dispensing, subtly or enforcing, otherwise, any set of ideas on press. Beliefs, proposals for change, clamor con- protests trols, against any governmental regime pro- are *52 156 governmental against Amendment First by the
tected or control. ban First the of meaning over the debate has been
There the by reason of the States applied Amendment level at state thought have Some Fourteenth. down” “watered was somewhat Amendment First applied it had as vigor full which have the and did not States, Both United v. See Federal Government. far, So concurring). J., 476, (Harlan, 354 502-503 U. S. Hogan, Malloy v. minority view. See that has been for here, irrelevant quite But 1, 10. 378 U. S. Bill of parts like other Amendment, the First Fed- only to the applicable at the outset Rights, was written The First Amendment eral Government.5 command is that “Con- that are absolute. Its terms . . the freedom of abridging make no law . gress shall press speech, or of con- course, changed by be a guarantee, can,
That
press
which can make all the
stitutional amendment
and thus
press organs
of the
Government
segments
people
the news and
which
receive.
control
information
of the First
cannot
restructuring
Such
Amendment
by judicial
by
done
fiat or
action. The ban
congressional
abridges
press
my
“no” law that
freedom of the
is in
The
complete.6
Acts,
view total
Alien and Sedition
early
570,
passed
history
in our
were
596,
Stat.
Mayor
Baltimore, 7
Barron v.
Pet. 243.
press
country,
Britain,
in this
like
was
one time
subject
contempt
litigation. Toledo
pending
for its comments on
Newspaper
States,
position
Co. v.
United
U. S. 402. But
Bridges California,
changed.
v.
267.
was
See
314 U. S.
Federal
corpus, however,
give man
habeas
is available to
his freedom and
prosecution
opportunity
an
trial
a new
where the conduct
Sheppard Maxwell,
press
of the
in an
resulted
unfair trial.
v.
change
may
“libels, defamation, with falsehood, heresy and false withheld from the religion, are cognizance federal tribunals. That therefore the act of States, passed Congress United *53 the 14th of 'An July, 1798, entitled Act in Addition to the Act “An entitled Act for the Punishment of ' certain Crimes the against States,” United which does the freedom the abridge is not press, law, but and altogether void, of no force.” 4 J. Elliot's Debates on the Federal Constitution 541 And see 15 Writings of (Memorial Thomas Jefferson 214 id., ed. 1904); 14 id., 11 116; at 43-44.
Those
had but a short life,
Acts
and we never returned
to them. We have, however, witnessed a slow encroach-
by
ment
over
Government
that segment
press
of the
is represented by
and
TV
radio licensees. Licens-
ing is necessary for engineering reasons;
spectrum
is limited and wavelengths must be assigned to avoid
stations interfering7 with each other. Red Lion Broad-
casting
FCC,
Co. v.
8 Scarcity may past, obviating soon be constraint of the thus expressed predicted concerns in Red Lion. may It has been possible years provide within 10 television viewers chan through Smith, nels the advances of cable R. television. Wired (1972); Brandywine-Main FCC, Radio, Nation 7 see Inc. Line (Bazelon, J., App. 153 U. S. D. C. 2d 73-76 362-365, F. dissenting). 9 Currently, press globe. censorship In Brazil covers most of present regime censorship pervasive. reported As 17, 1973, p. New York Times for 11: Feb. rules, ago constantly “The censors’ issued a few months
amended, strictly a applied cover vast field and if leave the would press practice, however, little to In depends discuss. much on the suspicions whims and the local censors. prohibitions protests against any
"General censorship, include discussion a Médici, successor to President Emilio Garrastazu up whose term is in campaigns against the Government’s special powers by might decree and sensational news hurt image of Brazil. campaigns
“Others program, are to housing discredit national the financial market importance or other matters of vital to the Government, playing up of assaults on banks or credit estab- lishments, tension between the state, Roman Church Catholic and the agitation circles, in union publicity and student and for Communist personalities governors and nations. Criticism state and ‘exalta- immorality’ through homosexuality, prostitution tion news of and drugs are also barred. order, by
"The most controversial issued the Minister of Justice last September, news, political bans all or comment on a interviews democracy regime, Brazil, relaxation of the for and on the eco- nomic and general.” financial in situation inherently That is not available to all.
expression, radio is unlike other unique characteristic, why, and that is its expression, subject it is to governmental modes regulation.” is due and technical uniqueness engineering
That to likewise problems. press But the in a sense realistic is papers “underground” to all. Small or available weekly and appear disappear; and is an established daily now are papers institution. But established impossible unique virtually the sense would be that it competitor for a enter the due to the financial field practical of this era. The exigencies result is the newspapers terms like TV and magazines, only are at radio, available select few. Who folly time would have the to think he could combat the by New York plant Times Denver Post a new building and becoming competitor? may That for a argue responsibilities redefinition of of the press First I Amendment terms.10 But gives do not think us 10Indeed, argued it can be newspapers, that the existence of public, thus dependent upon their access to preferential mailing privileges newspapers through postage receive second-class privilege This and, my rates. is a Government, afforded recognizes, subsidy. Brother StewaRT a form of Reorganization Under the Act, Postal the new Postal Rate Com- empowered postage high enough mission is fix rates levels way. pay reports make each class of mail its own John Fischer magazines peri- that the increase in second-class mail rates for (127%) “nothing an un- odicals less than a death sentence predictable Easy *55 publications.” Chair, Harper’s number of The 1973). Magazine 30, (May giants It is not the established publishing most, of the field that will suffer for it estimated 10,000 magazines newspapers that some and small will be forced out Id., specifically Fischer existence. at 30. mentions the National Review, Events, Nation, Republic. Human The and The New These publications diversity are offer opinion that us the rich and systems supervision and design carte blanche to the mandate in to read empower Congress control or shall make no “Congress the First that Amendment press” . the freedom ... of to mean abridging law . . any may, directly through Congress acting “abridg- its such the FCC make “some” laws agencies ing” press. freedom of the and arguments, appraised
Powerful summarized System T. Emerson, Expression, The of Freedom cc. XVII and XVIII can be for revamping or (1970), made system. reconditioning present may The onе largely on the side of aligned quo. prob- the status lem implicates our educational which efforts are bland and the pressures conformist and press, po- from litical and from financial sources, to foist boilerplate points of view on our people display rather than diversities of ideologies and culture in a world which, as Buckminster said, Fuller has been “communized” radio.
What kind of First Amendment would best serve our needs approach as we may the 21st century be an open question. But the old-fashioned First Amendment we have is the only Court’s guideline; one hard and principle fast which it announces is that Government reporting the designed First promote Amendment is protect. As McGee, Senator Chairman of the Post Office and Civil Service Committee, has “I said: believe generalljr that the American has a vested newspapers magazines. interest the survival of Regardless economic, political, policies they or social which espouse, they thought process. contribute to the per- nation's I am sonally Congress permit magazines convinced should not go distributing under because through postal the cost of them system higher willing pay.” Id., than their readers are at 32.
In postage rates, addition newspapers to the benefits of reduced have been afforded a exemption. Newspaper limited antitrust Pres- Act, seq. ervation 15 U. C. 1801 et S. § *56 keep press. principle That shall its hands off I of strife and days served us calm eras through by First Amendment would abide until newa I adopted. it, radio, That as view that TV and means, as well as the more methods disseminat- conventional ing news, concept “press” are all included as used in the First Amendment and therefore are entitled regime live under the laissez-faire which the First Amendment sanctions.
The issues presented these are cases momentous TV ones. and radio broadcasters have mined millions by selling merchandise, selling ideas across the broad spectrum of newspapers the First Amendment. But some precisely have done loading their with same, pages advertisements; they publish, not critical discussions of confronting issues our but stories about mur- society, ders, scandal, touching slanderous matter lives of public servants who no have recourse due to New Sullivan, York Times Co. v. S. 254. U. Commissioner Johnson of the present FCC wrote in the case a powerful dissent. He said:
“Although clearly First Amendment would ban governmental censorship speech govern- content, ment must be procedural concerned about the rules that control forums for discussion. If someone—a moderator, radio-television licensee— applies rules give speaker, one or viewpoint, time (or less at all) present none a position, then a censorship exists as invidious as outright thought control. There is little doubt in my mind that for any given forum speech the First Amendment demands rules permitting many speak as and be heard possible. And if this Commission does them, not enact then the courts require must them.” F. C. C. 2d 216, 232. *57 position in a Government putting of prospect But the one, even appalling an is to me publishers control over of for struggle The Doctrine. Fairness extent of the to the The Government. struggle against a liberty has been Rights and Bill of Constitution scheme of our essential Separa- people. of off the backs was to take Government independent judiciary An powers one device. tion of was was another. The Bill of still Rights another was device. allow the Amendment to And is to First anathema mag- any censorship newspapers, over Government role any aspect music, TV, radio, other azines, books, art, in some circles press. unhappiness There is a if But there is to impotence of Government. by let it amendment. come constitutional change, important play curbing an in Commission has role in in- monopolistic keeping channels free from practices, opening up technology in new channels terference, as power develops. censorship. But it has no is can said, course, It that Government control the because their channels are in broadcasters they domain use the is airspace sense the common of all heritage people. parks But are people also domain. who speak Yet there come censorship. do not under Government Lovell v. Griffin, Hague 444, 450-453; CIO, U. S. 307 ü. S. 496; Hyde 515-516. It is the tradition of Park, not the censor, tradition of the is reflected in the First Amendment. TV radio broadcasters part are a vital press; of the and since the First no Amendment allows it, Government control over I would leave segment press to its devices. Licenses are, restricted in time and course, while, my power make view, Congress license each limited to a fixed term and nonreviewable, there is no power deny renewals editorial or rea- ideological the First no gives sons. The reason is that Amendment preference thought one school over others.11 today’s The Court in Fair- endorsing decision Doctrine ness sanctions federal saddle on broadcast agreeable licensees that to the traditions nations that never have known press12 freedom of and that tolerable in countries that do not have a con- written stitution prohibitions containing as absolute those in the First Amendment. Indeed after these cases were argued FCC instituted “non-public” inquiry13 to
11Judge Bazelon, dissenting Brandywine-Main Radio, in Line Inc. FCC, v. App. C., U. 153 S. at 358-359, 2d, 69-70, D. F. 473 said: particular “WXUR was no religious doubt politi devoted to a and philosophy; cal but it speaking was also a radio station devoted to stirring out and debate on controversial issues. The was station purchased by Theological Seminary viewpoint propagate Faith a being greater Philadelphia which was not heard in the area. The through record is clear that its interview and call-in it did shows variety opinions issues; offer a range public aon broad and spokesmen that never refused to lend its broadcast facilities to conflicting viewpoints. requirements, rendering
“The strict as Commission’s fairness developed decision, in its has removed from the This WXUR air. deprived only listening public viewpoint has not but also beyond of robust debate on innumerable controversial It is issues. dispute lost has access to information and ideas. lightly, unpopular is not This a loss to taken however or dis- might ruptive judge (Footnotes omitted.) we these ideas be.” European any If experience Eastern since II World War criterion, pretty newspapers company paper are much the huge company (Communist) target, how nation. easiest ever, carefully input seems to be TV where the can be controlled “prime tapes meetings, time” political filled with of official speeches, and the tedious of achievement of the accounts workers. Morgan, Washington Post, See Europe, Press Obedience East 19, 1973, May p. A14. 1973). 73-331, Reg. (Mar. 27, FCC Order No. 39 Fed. or cablecaster any broadcaster whether determine “ language’ profane or 'obscene, indecent broadcast 1464. § of” 18 U. S. C. violation Sonderling Broadcasting fined April In the FCC 1973, Park, in Oak operates station WGLD Illinois, which Corp., telephone on a for “obscene” conversations allowing States, Roth v. United 354 U. S. used “talk show.” It Massachusetts, Ginz- Memoirs 413, 383 U. S. 476, States, burg v. United supplying U. S. corporation $2,000 for It broadcasting. criteria fined reads, under 18 C. which “Whoever utters § U. S. any profane or indecent, language means obscene, $10,000 radio communication shall be fined not more than than imprisoned more two or both.” years, Commissioner dissented, saying Johnson FCC prefers “to sit as an omniscient programming review board, allegedly capable of deciding what is is not and hear”; good the American see and that when the particular FCC program pall bars it casts “a over the industry” entire broadcasting for the reason potential licensees “fear the loss of their highly profitable broadcast licenses.” That, he cre- concluded, *59 ates a “chilling effect” which has proportions” “enormous and reaches “all forms of expression.” broadcast
We ourselves of have, course, made great inroads on the First Amendment of which obscenity only of one many the examples. perhaps So we are inching slowly toward press. a controlled But the regime of federal supervision under the Fairness contrary Doctrine is to our constitutional mandate and makes the broadcast easy licensee an victim of political pressures and reduces him to a timid and segment submissive of the press whose measure of the interest will now be echoes of the political dominant voice that emerges after every elec- tion. The affair with freedom of which we have been only of proud will now bear a faint likeness our former days. robust
Ill surprise I said would that it come as a the publishers well as newspapers and editors of to learn they newly that were under a created federal bureau. I Perhaps should should have said that such an event come In surprise. as a fact it might not view of the retrogressive steps we have witnessed.
We have allowed ominous inroads
to be made
the
historic freedom of
newspapers.
sup-
The effort to
press
publication
only
Papers
failed
Pentagon
by a narrow margin
actually
succeeded
brief
spell in imposing prior
press
restraint on our
for the
history.
first time
our
New York Times
v.Co.
See
States,
United
In recent admonition Mr. Black Justice gave First Amendment the press freedom so might it the governed, “serve not the governors” (id., 717) been disregarded.
“The
power
Government’s
to censor the press was
abolished so that
the press would remain
forever free
censure
press
the Government. The
protected
was
so
could bare
the secrets
government and inform
people. Only
a free and
ef-
press
unrestrained
can
fectively expose deception in government.
para-
And
among
mount
responsibilities
a free press is the
duty
prevent any
part of the government from deceiv-
ing
people
and sending them off to distant
lands to
die
foreign fevers and foreign shot and shell.” Ibid.
right
people
to know
greatly
has been
undermined
our decisions
pain
requiring, under
contempt,
reporter to disclose the sources of the infor-
*60
mation he
in
comes across
investigative
Branz-
reporting.
burg Hayes,
v.
The Globe Boston 20 Federal Grand at least years “In the last two or anti- radical investigate have been used Juries pro- subpoena, power With the war dissent. evi- rules of bound secret, and not ceedings more they have a lot required open court, dence Un- old House than, example, leverage Activities Committee.” American powerful a put jail, have been Many reporters Boston reporting. As the investigative weapon against here reality undermined being “in what states, Globe itself.” press freedom stamp easy of the In direction is the use same recently ap- “top Court or secret” which the “secret”' Mink, Agency Protection Environmental proved in Free- That makes 73. decision a shambles U. S. re- In with the other dom of Information Act. tune proposed provisions are of the new press straints on recently Court sent to Con- Rules Evidence which the provides: Proposed (b) Rule 509 gress. to refuse to government privilege give
“The prevent any from evi- person giving evidence and upon dence of reasonable likelihood of showing the evidence will disclose a secret of danger information, rule.” state or official as defined if Congress act,16 Under the statute does not this new regime secrecy imposed will be on the Nation People's Know, 21-27, 1973, Series, Need Editorial Jan. reprinted p. from Boston Globe, 12. 15Id., at 13.
16By 30, Congress 1973, reason of an Act of the Rules of Mar. of Evidence —and Rules amendments to the of Civil Procedure (which 1972, up Rules of Criminal Procedure we sent Nov. 1972) except and Dec. have no force effect to the extent —will Congress expressly approves. 87 Stat. 9. *61 to will be people know further curtailed. The right sedulously protects proposed Government; code the it protect pointedly does not newsmen. It indeed omits any privilege protect mention newsmen to their confidential sources. newspapers
These growing rеstraints on have the same present ominous message opin- the overtones of the ion on TV and radio have licensees. specter
The growing governmental control and of people surveillance over all activities makes ominous liberty the by those threat who hold the executive power. again, attempts Over and over have been made to use political weapon the Commission as a against the opposition, whether to the left oí to right. the
Experience has shown unrestrained power cannot be trusted to serve the public weal even it though governmental hands. fate of the First Amendment should jeopardized.17 not be so The constitutional man- date that Government shall “no make law” abridging freedom speech the press clear; and and orders rulings Commission are covered ban; carefully must be confined lest broadcasting our —now powerful most media —be used to subdue the minorities help produce or of people a Nation who walk submissively to the executive's of the public notions good.
17Alexander Bickel has spurned agnosticism” the “total that allows way First Amendment really knows, have its because “who all, after false, good, what true or evil or noxious wholesome.” The Press and Government: Absolutes, Adversaries Without Free (May-June dom 1973). Issue 5 He attributes this view to Mr. place Justice He partial Holmes. would responsibility at least with the determining “good Government for counsels and whole But, some precisely doctrine.” Ibid. it was the mistrust evanescent, narrow, power factional views of those in belief patent that no one has underlay on the “truth” that the First Amendment. prosecution involved Alabama, 384 U. S.
v.Mills contrary to a state publishing, editor newspaper of a voters day urging on election editorial an statute, replace city commission existing against vote *62 speak- Court, This mayor-council government. it with a judgment reversed the Black, Mr. Justice ing through saying: to serve as was press designed and serves
“[T]he by gov- any power to abuses of antidote powerful constitutionally chosen and as a ernmental officials people elected the for officials keeping means they whom were se- people all the responsible to Suppression right lected to serve. agents press praise governmental to or criticize and which against change, contend for or to clamor and very one of the did, is all that editorial muzzles our thought- the Framers of Constitution agencies deliberately fully improve our so- selected ciety and The keep Corrupt free. Alabama penalties Practices Act for by providing criminal publishing editorials as the here silences such one press when it can most at a time effective. It is difficult of a to conceive more obvious and constitutionally flagrant abridgment guar- Id., anteed freedom of the press.” at 219. I would apply the same to TV test or radio.18 monetary imposed The and other press by burdens right person reply, damage aof criticized like the traditional remedy libel, self-censorship respecting for lead of course to mat importance ters of to the that the Amendment First denies power certainly impose. the Government the burdens are as rights onerous as the indirect restrictions on First Amendment which (1) requirement we have struck down: that a bookseller examine shop, California, (1959); contents of his Smith v. 361 U. S. (2) requirement magazine publisher investigate that a his adver tisers, Enterprises, Day, Manual Inc. v. 370 U. S. 492-493 President Coo- wrote about Lippman
What Walter relevancy. Coo- press present has criticism lidge’s said, he had lidge,
“
understanding
for
moder-
peace, good-will,
‘declared
exploita-
ation; disapproved
conquest, aggression,
pleaded
patriotic
a free
tion;
press,
press;
for a
for
a narrow
bigoted nationalism,
denounced
order, protection
announced that he stood for law,
respect
prin-
life,
sovereignty and
property,
ciple of
Coolidge’s catalog
international
law. Mr.
complete
the virtues was
one virtue.
. . .
except for
That
is the humble realization that God
power
endowed Calvin Coolidge with an infallible
exactly
determine in each concrete case
what is
right,
patriotic.
what
what
. . Did
just,
.
he
*63
possibility
recognize this
he
not continue
would
press
lecture
way
the
in such
appear
as to make it
that when newspapers oppose
they
him
are un-
and that
patriotic,
they
when
him
support
they do
so not because
think
they
case
good
his
but be-
they blindly
cause
support him. Mr. Coolidge’s
notion . . . would if it
accepted by
were
the Amer-
”
press
ican
reduce it to utter triviality.’
J. Luskin,
Lippman, Liberty, and the Press 60 (1972).
(1962) (opinion
Harlan,
(3)
J.);
requirement
that names
sponsors
printed
addresses of
handbills, Talley
v. Cali-
fornia,
(4)
(1960);
requirement
U.
60S.
organizations
362.
that
supply
lists,
membership
Legislative
v.
Investigation
Gibson
Florida
Committee, 372
(1963);
U. S. 639
Louisiana ex rel. Gremillion v.
NAACP, 366
(1961);
IJ.
293
City
S.
Bates v.
Rock,
Little
361
(1960);
U. S. 516
NAACP Alabama,
(1958);
The same bland markedly increased since press ments of days Coolidge. of Calvin Justice Mar- whom Brennan, with
Mr. Justice Mr. concurs, dissenting. shall whether radio to consider require
These cases us approval may, with the broadcast licensees television abso- Commission,1 refuse Federal Communications time groups lutely any part advertising of their sell out on controversial issues speak wishing or individuals the broadcaster practical effect, In importance. of public only paid permits airing of those here under attack policy or deal with “non- products which advertise presentations discussion matters, relegating while controversial” documen- to formats controversial issues such are con- shows, tightly which taries, news, panel The Court holds edited the broadcaster. trolled and the absolute ban on today policy including — for of controversial the sale of air time the discussion require- “public with the interest” issues—is consistent ments of the Act of U. S. C. Communications (d), (a).2 also holds that §§ Court Peace, See Business Executives Move Vietnam C. F. C. 242 (1970); Committee, 2d Democratic 25 C. 2d 216 National F. C. *64 specifically “statutory”
2 I question do not in this case address the because, practical effect, underlying the the considerations “statutory” many question respects rele are in similar to those There vant to the claim. “substance” of the “constitutional” however, “statutory” aspect discussion, is that one of the Court’s ban upholding absolute merits at least brief In the attention. heavily upon 47 advertising, on the relies sale editorial the Court be (h), TJ. shall not S. C. 153 which that broadcasters declares § misplaced. my view, deemed “common In this reliance carriers.” history cursory legislative pro of this Even examination of the recognition the fact vision reveals it was enacted in that that
171 policy challenged does not violate the First Amendment. It is noteworthy that, reaching result, Court not does hold that there is in- “governmental insufficient volvement” and promulgation enforcement of the ban to challenged the commands of the activate First Amendment. the contrary, only On Justice, The Chibe my Rehnquist and express Brothers Stewart and view First Amendment is inapplicable to this My case. Brothers White, Powell Blackmun, quite properly do not decide that question, they find policy broadcaster here under attack does not violate the “substance” of the First Amendment. Sim- there no ilarly, majority holding for the the chal- lenged ban not does violate the “substance” of the First Amendment. For, although Chief Justice, my Brother Rehnquist purport ques- “decide” that disposition their tion, of the “governmental involve- ment” necessarily issue subsequent renders their dis- cussion of the question “substantive” mere dictum. traditional governing doctrines carriers,” true “common such as transportation companies, particular would problems not suit the broadcasting. of radio Specifically, it was feared that such "common carrier” status they for broadcasters would mean that “would have give all [public Cong. their time 67 Rec. 12504 issues].” (Sen. Dill) (emphasis added); (Sen. Broussard) ; see ibid. also id., (Sen. Fess). at 12356 (h) solely Section 153 was intended to assure required that broadcasters would not be to surrender all willing their air purchasers; upon time to does bear question they may required whether be to sell a reasonable and limited amount of air time public to members of the for discussion of controversial Chafee, issues. See Z. Government Mass (1947). Communications 635 n. Indeed, the Commission itself rejected interpretation (h) Court’s when it de- § clared, years ago, over operation any that “the station under principles the extreme that no time shall sold for the discussion of controversial concept issues . .(cid:127) . is inconsistent with interest established Act. Communications ...” Broadcasting Co., United 10 F. C. C.
172 one here is at stake principle the view, my
In people’s concerns for it importance, fundamental debate public vigorous hear to in and engage to right I per- what balancing media. And broadcast on the broadcasters, interests competing be the to ceive to seeking individuals and public, viewing and listening only I can media, the electronic over views express their today can upheld exclusionary policy conclude “pro- our further, inhibit, rather than only to serve debate principle that commitment found national wide- uninhibited, robust, be should issues Sullivan, U. S. York Times Co. v. New open.” affirm the determination I would therefore broadcaster Appeals challenged of the Court Amendment. of the First policy is violative I “Congress Amendment First command speech, freedom of abridging no law . . . shall make is, governmental on its directed at press” face, or of the prior our de- private Nevertheless, rather action. than “[cjonduct formally 'pri- cisions make clear that that is may governmental policies entwined with vate’ become so governmental with a character as impregnated so subject placed constitutional limitations become Newton, action.” Evans v. upon [governmental] 296, 299 the reach of the First (1966). Thus, U. S. depends upon any “private- Amendment formalistic dichotomy more public" but, rather, upon functional in- concerning governmental considerations extent of in, volvement character aof, particular “pri- “Only by enterprise. vate” sifting weighing facts circumstances can the nonobvious involvement of the in private conduct attributed its [Government] true Wilmington Burton v. Parking Authority, significance.” Lodge Moose No. 365 U. (1961); S. see
173 Irvis, 172 And of the (1972). 407 because 163, U. S. complexity case-by-case inquiry, inherent of this “[t]his 'impossible of for- attempted Court has never the task’ infallible test” for in all mulating determining an instances particular private whether conduct be deemed must Beitman governmental. Mulkey, 369, 387 U. S. 378 Comm’rs, Kotch v. (1967); see Pilot 556 U. S. (1947). experi-
This does not of course, prior that our mean, ence in this purposes area offers no for the guidance present our inquiry. previous On the our de- contrary, myriad cisions have focused on of “governmental indicia many of action,” directly which are applicable the operations of the industry.3 broadcast As the Court of Appeals recognized, “the general characteristics industry broadcast extraordinary reveal an relationship between the government— broadcasters the federal a relationship puts industry which ain class with few others.” App. U. S. D. 181, 190, C. 450 F. 2d 642, 651. More specifically, the nature of the airwaves, governmentally created preferred status broadcast licensees, pervasive federal regulation broadcast programming, and the specific Commission’s approval of the challenged policy broadcaster combine this case to bring promulgation and enforcement of policy within the orbit of imperatives. constitutional outset,
At should be noted that both radio and television broadcasting utilize a natural resource —the electromagnetic spectrum4 part of —that generally See Business Executives Move Peace, Vietnam 2d, F. C. C. (dissenting 253-264 opinion), wherein Commissioner Johnson eight identified no separate "govern less than indicia of mental promulgation action” involved in and enforcement of challenged policy. broadcaster 4For a discussion of electromagnetic the attributes of the spectrum, see generally Jones, Regulated W. (1967); Levin, Industries 1019 Spectrum The Radio Resource, 11 J. Law & Econ. 433 granted are broadcasters although And, domain. for terminable resource valuable use temporary re- control ultimate “ownership” periods, three-year Thus, United States. people in the main vested C. 47 U. Act S. the Communications 301 of § provides: 301, specifically § maintain ... of this purpose
“It [Act] is the all the channels over the United States the control of and to foreign transmission; radio and of interstate but not the channels, such use of provide for the of periods limited by for thereof, persons ownership by authority, Federal licenses granted under time, any to create shall be construed and no such license of periods beyond terms, conditions, right, . .” . the license. element in the public “ownership” of an
Such essential im enterprise course, of an operations private is, of a in portant “governmental indicium of established Authority, Wilmington Parking In Burton volvement.” v. emphasized “public for the fact of pra, example, we su ownership” in of the Four holding proscriptions a applicable privately teenth Amendment owned res taurant in leasing space building owned the State.5
5 true, course, Burton, It is in that unlike the State the Federal compensation Government here does receive substantial financial "public” Wilmington property. for the use Burton of the See v. Parking 715, Lodge Authority, (1961); 365 U. S. 723-724 Moose Irvis, (1972). Nevertheless, No. 107 v. 407 U. 174-175 S. arrangement effect, represents, practical in absence of such financial broadcasters, thereby enhancing Government subsidization degree governmental Kalven, Broadcasting, involvement. Cf. Amendment, Policy and & Public the First 10 J. Law Econ. 31 (1967). Moreover, Burton, publicly property as in owned rather, "integral surplus property” but, “not state constitutes an and, indeed, indispensable governmental part” of the scheme. Burton Wilmington Parking Authority, supra, v. at 723. See also 47 (g). U. S. C. §303 part result, explained that,
In we be reaching “public ownership” the building, cause place power, property State “has elected to its privately res prestige behind the” actions of the owned S., taurant. U. at 725. the relation And, viewing ship entirety, its we concluded that State “[t]he far into a of inter position has so insinuated itself dependence with recog that must be [the restaurant] a joint participant nized challenged ac Ibid.; tivity. . .” Lodge . see also Moose No. 107 v. Irvis, supra, at 172-173, 175; Memphis, Turner City v. Kissinger 350 (1962); City U. S. v. New York Transit Authority, 274 (SDNY F. Farmer Supp. 1967); Moses, (SDNY 232 F. Supp. 1964).
A indicium “governmental second involvement” de rives from the dependence direct upon broadcasters the Federal Government “right” operate their frequencies. broadcast There can be no that, doubt *68 industry as a whole, governmental regulation alone makes “radio possible communication . lim by . . iting number of licenses so as not to overcrowd the spectrum.” Red Lion Broadcasting FCC, Co. v. 395 367, U. S. 389 (1969).6 Moreover, with respect to in dividual licensees, equally clear that “existing broad casters have often attained their present position,” not as a result of free pressures7 market but, rather, “be of cause their initial government .” Id., selection. . . at 400. Indeed, “quasi-monopolistic” advantages enjoyed by broadcast licensees “are the pre fruit of a position ferred by conferred the Government.” Ibid. 6For a discussion of the Fairness Doctrine and its relevance to this case, notes, 15-34, see text and at nn. infra. 7Indeed, the Communications of Act 1934 makes it criminal operate offense to a broadcast transmitter without a license. See 47 Thus, U. 501. S. C. specifically the Federal § Government insu any lates the licensee from competition. real of threat economic 176 Burger (then Judge) Chief Justice
Thus, Mr. granted seeks broadcaster recognized, “[a] himself of part valuable limited and use of exclusive free and it is franchise accepts he when domain; obligations.” by enforceable burdened of Office FCC, v. Christ Church United Communication (1966). 2d 994, 359 F. 337, 328, D. C. App. 123 U. S. consistently held have we same lines, these along And, Government’s from authority part derives “when pri power of that the exercise the scales, thumb on respects, akin, in some closely becomes persons vate Commu American itself.” by Government its exercise (1950) ; Douds, 339 U. v. S. nications Assn. Poliak, 343 U. S. Comm’n v. g., e. Public Utilities see, 462 n. involvement” “governmental indicium of A further challenged and enforcement promulgation may govern- seen in the extensive policy broadcaster true, industry. It is mental control over the broadcast has never held” that actions course, that this “Court private entity necessarily an govern- constitute otherwise . entity subject . regula- mental action if that “is . Lodge No. any degree tion in whatever.” Moose Irvis, supra, Here, confronted, 173. however, we are degree regulation, but, rather, not with some minimal statutory with an virtually elaborate scheme governing aspects all industry.8 Indeed, broadcast federal 8Thus, the Communications Act 1934 authorizes the Federal assign frequency bands, Communications Commission to C. U. S. *69 (c); by location, (d); regulate apparatus, 303 allocate licenses 303 § § areas, (e); (h); regulate 303 establish service 303 chain owner § § (i); require ship, keeping records, (j); of detailed §303 §303 qualifications licensees, (1); licenses, establish suspend of 303§ (m) (1); inspect facilities, 303 (n); require publi station 303 § § information, cation of (p); call letters and other make rules § regulation television, (r); require effect of radio and § capable receiving signals, (s); regulate television sets be of all 303§ conduct review and of broadcaster agency guidance as the continuing, pervasive.9 Thus, and automatic, private no other Appeals noted, Court of “[a]lmost private no regulated business —almost other business— . intimately is so bound to 146 U. S. government . . App. C.,D. F. 2d, at 652. important
Even more than general regulatory this scheme, is the however, specific governmental involve- policy ment presently broadcaster under consid- eration. There for nexus is, example, an obvious be- tween the Commission's Fairness Doctrine and the absolute refusal of any broadcast to sell of part licensees their air to groups time wishing speak individuals out controversial of public importance. issues In- deed, defense of policy, broadcaster-petitioners this argue vigorously exclusionary policy is author- ized and even compelled by the Fairness Doctrine. And the Court itself recognizes repeatedly that the Fairness Doctrine and other Communications Act policies are granting thereof, 309; licenses and terms §§307, pre- scribe supplied by information to applicants licenses, (b) ; 308§ regulate the licenses, transfer 310; impose licensees, sanctions on § including license, revocation §312; require coverage fair of con- issues, §315; troversial operation control transmitting ap- paratus, 318; prohibit and language, § use of offensive U. S. C. 1464. § statutory authority,
9 Pursuant supra, see n. the Commis promulgated myriad sion regulations governing aspects all licensee conduct. See 47 seq. CFR regulations 73.17 et These § affect such matters operation, 73.23; multiple as hours of owner § ship single of licenses individual, 73.35; station location § program origination, §73.30; logs pro maintenance detañed gramming, operation, maintenance, baling §§73.111-116; prac tices, 73.124; personal political attack and § editorial fair requirements, ness §73.123; relationship networks, of licensees to §§73.131-139; permissible equipment, The above- §§73.39-50. regulations only cited radio, regulations relate to AM but similar radio, exist seq., for FM television, seq. 73.201 et 73.601 et § § *70 178 at one Thus, ban. challenged
inextricably the linked Doctrine Fairness the suggests “[i]f Court the point, . the . . there is advertising, to editorial applied were of that operation the effective danger substantial Ante, 124. Sim- jeopardized.” would doctrine Fairness in that, light maintains Court ilarly, the individuals to allow no reason simply is Doctrine, there of their expression for the time purchase advertising ante, at 130-131.10 issues. See own views substance any agree with I sense do Although to illustrate they at least serve propositions, of these Doctrine Fairness extent to which the Commission's under here development policy influenced review. in the chal-
Moreover, Commission’s involvement effects solely is not the indirect lenged policy limited a decision contrary, of its Fairness Doctrine. On the for future inevitably provide guidance must which specifically con- action, broadcaster the Commission has specifically sidered and authorized the flat ban. See Peace, F. Business Executives Move Vietnam 25 C. C. for Committee, 2d 25 (1970); Democratic National F. 2d In C. C. the Commission— doing, so and through unequivo- it the Federal Government —has cally imprimatur its to the absolute ban on edi- given torial And, of is now well settled advertising. course, it governmental that specific approval of or acquiescence by challenged private action entity “govern- indicates mental action.” Atchison, Co., in McCabe
Thus, T. S. F. R. & (1914), TJ. S. 151 dealt example, Court with a statute as construed which, Court, simply addition, that, In the Court contends because of the Fairness Doctrine, challenged policy broadcaster does not discriminate against speech. ante, controversial See at 128-130. *71 types of cars certain provide rail
authorized
carriers
equal facilities
offering
without
passengers
for white
pro-
complaint
of the
dismissal
Although
blacks.
that such
affirmed,
cedural
was
we made clear
grounds
was
statute,
purely permissive
nature,
a
even
though
because
car-
invalid under the Fourteenth Amendment
rier
equal
“acting
blacks would be
refusing
service to
authority
Id., at
the matter under the
of a
law.”
state
years
162.
some 50
And,
later,
explained
finding
we
in McCabe
“governmental
“nothing
action”
as
less
a permissive
than
an au-
considering
state statute as
thorization to
discriminate
sufficient state action
.
violate
Fourteenth Amendment.
. .” Reitman
Mulkey, 387
S.,
prior
v.
U.
at 379.
de-
Thus, “[o]ur
any
leave no doubt”
cisions
that
action
the Gov-
ernment,
any of
through
its agencies, approving, au-
thorizing,
encouraging,
otherwise
conduct
supporting
by
if
which,
performed
the Government, would violate
Constitution,
illegal [governmental]
“constitutes
in-
volvement
pertinent private
those
.
acts .
. that sub-
sequently occur.”
Co,,
Adickes v. Kress &
398 U. S.
202 (1970) (opinion
Brennan,
e.
J.);
g., Moose
see,
Lodge
Irvis,
No. 107 v.
supra;
Erickson,
Hunter v.
393
385 (1969);
U. S.
Reitman v. Mulkey,
v.
supra; Evans
Newton, 382 U. S.
(1966);
Florida,
296
Robinson v.
378
S. 153 (1964);
Louisiana,
U.
Lombard v.
U. S.
Peterson v.
(1963);
City
Greenville,
“upon agency, the fact an in- policy], ordered against [challenged tests *72 and, public hearings, of it after formal vestigation investigation ordered its ground dismissed the public that the comfort and convenience were safety, thereby.” Id., impaired at 462. Lodge Irvis, No. supra, Moose 107 v. 175-176, See at n. 3.
Although The Chief Justice, joined by Mr. Justice Stewart and Mr. Justice Rehnquist, valiantly strains to distinguish Poliak, he offers more nothing than the proverbial “distinctions without a difference.” as Here, Poliak, the broadcast operate licensees “under reg- ulatory supervision of ... an agency authorized Congress.” 343 S.,U. at 462. Poliak, And, again as in that agency “protests” received against the challenged policy after and, formal consideration, “dismissed” the complaints on the ground “public con- interest, venience, and necessity” were not “imрaired” by that policy. Indeed, the argument for finding “govern- mental action” here is even stronger Poliak, than in for this case concerns, not an incidental activity of a bus but, company, rather, primary activity of regu- lated entities —communication.
Thus, given the confluence of these various indicia of “governmental including nature action” —
181 preferred created airwaves,11 governmentally regu- broadcasters, status of the extensive Government specific gov- lation of and the programming, broadcast only approval policy ernmental can challenged —I conclude that the Government so far insinuated “has position” participation policy itself into a the absolute sell refusal broadcast licensees to air time groups wishing speak individuals out on con- troversial importance issues of subjected must be to the of the First restraints Amendment.12
11Moreover, appropriateness particular forum, aof even if owned, privately for effective has in some communication instances emphasized been pro to establish the relevance of First Amendment See, Amalgamated g., Logan Employees tections. e. Food Union v. Valley Plaza, Alabama, (1968); U. S. 308 Marsh v. 326 U. S. (1946). Here, recognized, Appeals Court of “the broad specifically cast media are They dedicated to communication. func tion as public speech both our foremost forum our most important people.” App. an educator of informed S. D. C. U. 181, 192, notes, F. 2d See 35-37, 653. also text and nn. infra. concurring opinion, my In his suggests Brother Stewart finding governmental necessarily action this context means *73 “private that Ante, (empha broadcasters are at 139 Government.” original). my view, sis in In complete this assertion reflects misunderstanding of the governmental nature of the involvement in Here, these cases. the persons Government the selected has permitted station, who will operate extensively to a broadcast regulates broadcasters, specifically approved those and has chal the lenged policy. Thus, broadcaster the commands of the Amend First play, ment come into “private not because broadcasters are Govern ment,” but, rather, the because “has far Government so insinuated participation position” challenged policy itself into a of in the as to responsible Similarly, make the itself Government for its effects. I agree my suggestion cannot with Brother Stewart’s that a find governmental of ing simply strip involvement here “would . . . of their own First rights.” broadcasters Amendment Ibid. The private purely course, actions of a are, subject individual of not where, to the here, constraints of the First Amendment. But as II recognized have been long television Radio and by a First Amend “affected communication of forms hardly be doubted it can and, indeed, ment interest” by that protected are themselves broadcast licensees FCC, Broadcasting Co. v. Lion Red Amendment. Pictures, States v. Paramount United U. at 386. See S., Inc., Chafee, Speech Free (1948); Z. 334 U. S. of (1941). Recognition 545-546 the United States equally for it is however, fact does not end our inquiry, in this protection of First Amendment clear that the solely is to broadcasters. On the context not limited one to contrary, competing set least claims implicated an Government itself in actions of otherwise private individual, rights with that individual must exercise his own regard rights due In other First Amendment others. words, competing rights required, an and “bal- accommodation of ancing,” approach suggested by my Brother not the “absolutist” Indeed, misunderstanding of the the result. it is this Stewart, significance governmental apparently leads involvement to my my disagreement Brothers White, Brother Stewart’s with “public relationship and Powell as to the between the Blackmun, standard of Amendment "values.” interest” the Act First my might that, contrary suggestion I note Brother also finding governmental this case does involvement in Stewart, respect any news- command conclusion not in sense a similar with papers. Indeed, compel factors that the conclusion promulgation and enforcement Government is involved simply challenged policy no relevance to news- have broadcaster operate newspapers papers. is made as who shall decision newspaper market, in- in the free fiat. The Government indeed, light extensively and, dustry regulated the dif- is not media, regulation printed such ferences between the electronic respect newspapers. with the First Amendment would violate Finally, regulation newspapers impossible, it would be since such *74 impossible approve be Government to an would likewise the approved exclusionary policy newspapers in the sense that it has of challenged policy of the broadcasters. the
183 that, from the fact Amendment derives protection of that frequencies of limited number broadcast because impact pervasive the potentially available and their as a whole retain media, people electronic "the right and their collective speech free radio interest consistently with the the medium function ends have Red Lion of the First Amendment.” purposes FCC, Broadcasting supra, Co. v. at 390. years
Over 50
Mr. Justice
sounded what
ago,
Holmes
has since become a
theme in
the First
applying
dominant
Amendment
changing problems
our Nation.
ultimate
he
good,”
“is
reached
declared,
better
"[T]he
by free trade in
ideas,”
“the best test of truth
is
power of
thought
get
com
accepted
itself
petition
States,
. .
. .” Abrams v.
market
United
250
S.
(1919)
U.
630
616,
opinion); see
(dissenting
also
Whitney
California,
v.
274
S. 357,
U.
(1927)
375-376
(Brandeis,
concurring);
York,
Gitlow
New
J.,
v.
268
U.
652,
(1925)
S.
672-673
(Holmes,
In
J., dissenting).
deed,
First Amendment
itself testifies
“pro
to our
found national
to the principle
commitment
that debate
on public issues
should
uninhibited, robust, and wide-
13
open,”
and the
assumption
Amendment “rests on the
possible
the widest
dissemination of information
from diverse and antagonistic sources is essential to the
welfare of the
. . . .” Associated
v.
Press United
States,
also Board U. S. (1968); Mills v. Alabama, U. S. *75 184 have we mind, in these such considerations
With and radio of the context that, in declared specifically protects Amendment First broadcasting, television access receive suitable public of the right “the and ideas other and moral, esthetic, political, social, FCC, v. Broadcasting Co. Lion Red . . . experiences of purpose is the because And, “[i]t at 390.14 supm, market- uninhibited an preserve Amendment the First ultimately prevail, will truth in which ideas place of mar- monopolization countenance than to rather private itself or Government it be whether ket, listeners, of the viewers right is the licensee,” “[i]t paramount.” which is broadcasters, not the right Ibid. light in that, explicitly recognized we have
Thus,
electronic media,
nature of the
unique
reception
in the
Amendment
interests
First
strong
have
a vigorous
in
presented
spectrum
of a full
views—
issues
controversial
uninhibited manner' —on
traditionally
it has
seen,
we have
importance. And, as
way to insure this
been
the most effective
thought
by foster-
wide-open”
debate is
“uninhibited, robust,
in
our forums of com-
by making
a “free trade
ideas”
ing
readily
persons wishing
munication
available to all
express
apparently conceding
their
Although
views.
up-
principles,
of these
nevertheless
legitimacy
Court
because,
holds the
ban on editorial advertising
absolute
view,
Doctrine,
its
the Commission’s Fairness
in and
satisfy
of itself,
is sufficient to
the First Amendment
I
public.
interests of the
agree.
cannot
14
doctrine,
long recognized
This was not new
for we have
in a
variety
“necessarily protects
of contexts that
the First Amendment
right
City
Struthers,
to receive
v.
Martin
[information].”
141,
(1943); see,
g., Stanley
Georgia,
319 U. S.
e.
394 U. S.
Time,
(1969);
Hill,
374,
(1967) ;
Inc. v.
385 U. S.
Connecticut,
(1965);
Griswold v.
381 U. S.
Lamont v.
General,
Postmaster
23Jaffe, The Responsibility Editorial of the Broadcaster: Reflec tions and Access, Fairness 768, 85 Harv. L. (1972). Rev. 773 n. 26 188 the broad- to enter moderated —views at least
lished —or 24 “marketplace ideas.” world’s cast Fairness on the Court’s reliance Moreover, public informing the sole means Doctrine as public’s underestimates seriously misconceives and 24 69 Lacy, Communications generally D. Freedom and See Fiduciary: Mallamud, Toward (1961); Licensee as The Broadcast 98-99; 89, 94-95, Discretion, 1973 Duke L. J. Enforcement supra, 23, 26; Canby, Amendment Jaffe, at The First n. 773 n. Television, Right 19 C. L. A. Radio and U. to Persuade: Access to Malone, Broadcasting, Reluctant 723, (1972); The L. Rev. 727 Sup Right Dragon: Access End the the First Amendment Will 193, Ideas?, 205- pressing 5 U. Mich. J. L. Reform of Controversial Century 211, (1972); Westen, Soap 216 & A Twentieth Johnson Time, Right 57 Va. L. The to Purchase Radio and Television box: (1971); Barron, First Amend 574 Access to the Press —A New Rev. Note, Speech Right, (1967); Free and ment 80 Harv. L. Rev. 1641 Media, (1971); L. A Fair Break Note, the Mass 57 Va. Rev. Speakers: Fairness for Controversial Limitations of the Doctrine (1971) ; Access, Need Individual Rev. 532 Geo. Wash. L. Note, Upon The Revisited: A Modest Attack the FCC’s Wasteland Category System, (1970); 17 U. C. L. A. L. Rev. 870-875 Comment, Speech Right Freedom of Individual’s Access Airwaves, 424, 428; Note, to the 1970 Law & Social Order Regulations: A Federal Communications Commission’sFairness First Step Right Media, Towards Creation oí a to the Mass Access (1969). Cornell L. Rev.
Although admitting always the Fairness Doctrine “has not brought perfect or, indeed, consistently high-quality to the even issues,” treatment of all events the Court nevertheless suggests obligations that a fulfill broadcaster who fails to his fairness Ante, losing so “at the risk of his license.” does at 130-131. The single instance, however, Court not cite a does which this sanction has ever been invoked comply because of a broadcaster’s failure to Indeed, with the surprising, Fairness Doctrine. this is not for the great area, Commission has acted with reluctance in intervening only the most extreme Mallamud, cases of broadcaster abuse. See supra, 115-122; Canby, supra, 725-727; Malone, at supra, at 215-216; Johnson, Broadcasting see also Cox & in America and the FCC’s An License Renewal Process: Study, Oklahoma Case F. C. C. 2d 1 *79 directly from ideas and information receiving
interest interposition ideas without the advocates of those Doc- Under Fairness journalistic middlemen. “important,” broadcasters decide what issues are trine, “fully” time, and what them, format, how cover style of The retention coverage “appropriate.” are such absolute control the hands a few Government Amendment, vigorous, is inimical to the First licensees only free debate can be attained when members public opportunity have some the initia- at least to take tive and editorial control into their own hands. system
Our legal reflects belief that truth best by illuminated genuine collision of advocates. Under Doctrine, the Fairness however, accompanied by an abso lute compelled ban on editorial advertising, rely exclusively “journalistic on the discretion” who spokes serve broadcasters, theory surrogate men for all sides of all issues. This separation expression advocate from his can only views serve to diminish the expression. of that effectiveness Indeed, emphasized we this fact in Red Lion:25
“Nor enough is it argu- he should hear the ments of from adversaries his teachers, pre- own they sented as them, state accompanied what they offer as refutations. way That is not the justice do to the arguments, or them bring into real contact with his own mind. He must be able to hear from persons them who actually them; believe who defend them in earnest, and do very their utmost for them.” if
Thus, is to honestly be and forthrightly apprised of opposing views issues, controversial it is imperative permitted citizens least some Broadcasting Red Lion FCC, supra, 18, quoting Co. v. at 392 n. Mill, Liberty (R. J. On 1947). McCallum ed. *80 genuine directly for as themselves speak to opportunity them. concern that on issues advocates actually that broadcasters the extent Moreover, to under “their” airwaves appear to citizens permit subject exten- are appearances such Doctrine, Fairness the effective- that it clear Yet control. editorial sive is as views of his expression individual's ness of an as presentation and format of style on the dependent of an relegation And itself. it is on the content as formats controlled tightly such views to individual’s dis- panel interviews, edited news, documentaries, maximize rather may minimize, tend to than cussions scheme a limited speech. Under effectiveness con- editorial the crucial however, editorial advertising, own hands. speaker’s trols are solely adequacy concerned with Nor are these cases which are coverage generally of those views and issues For stake is the recognized “newsworthy.” also at new and right public of the access to receive suitable generally unperceived opinions. and Under the ideas Doctrine, required present Fairness the broadcaster only “representative community and voices on views public importance.26 Thus, by controversial issues” of definition, the Fairness Doctrine perpetuate tends to cov- erage those already “views and voices” that are estab- lished, while provide failing exposure for to those “views and voices” that unorthodox, are novel, or unrepresentative of prevailing opinion.27 26Democratic Committee, National 2d, 222 (empha 25 F. C. C. added). sis 27Indeed, provide adequate groups failure to means for bring individuals to new issues or ideas to the attention of the explains, extent, at least to development some “the new media to convey unorthodox, unpopular, and new ideas. Sit-ins and demon testify inability strations to . . . the to secure access to con reaching ventional changing means of public opinion. by] [For noted the Fairness Doctrine Finally, it should be requires, broadcasters to determine permits, indeed sufficiently are “im- which views issues themselves portant” discussion. to warrant The briefs the broad- type “jour- case caster-petitioners illustrate the this regard. nalistic discretion” licensees now exercise Thus, it suggests ABC would refuse to air those which “crackpot,”28 considers “scandalous” or views opinions while exclude CBS would those issues or *81 are “insignificant”29 Similarly, or “trivial.”30 NBC strays “beyond would speech bar that the bounds of 31 normally accepted taste,” protect and WTOP would public subjects from are “slight, parochial that or 32 inappropriate.” The of genius Amendment, however, the First is that always it has defined what the ought to hear permitting speakers say they to what wish. As the Court Appeals of recognized, traditionally been “[i]t thought the best judge importance par- a viewpoint ticular or issue is the individual group hold- viewpoint ing the and wishing to communicate it to others.” 146 U. D. App. C., S. at 2d, 450 F. at 656. “supervised Indeed, and ordained directly discussion” is contrary underlying purposes the First Amend- ment,33 for that “presupposes Amendment right unsettling the bizarre and technique, nature of his the demonstrator hopes long enough compel arrest divert attention ponder message.” Barron, his Rev., 1647; 80 Harv. L. at Adderley Florida, cf. v. (1966) 385 U. S. J., 50-51 (Douglas, dissenting). 28 Broadcasting Brief for Companies, American Inc. 52. 29 Broadcasting System, Brief for Columbia Inc. 34. 30Id., at 40. 31 Broadcasting Brief for Company, National Inc. 10. Stations, Brief for Capital Area, Post-Newsweek Inc. 31. Independent Tinker v. Des Moines District, School S.U. 503,512 (1969). multi- out likely to be gathered more are conclusions kind of authoritative through any than tongues, tude ex- have context, related we Thus, selection.” consti- advertisements editorial recognized plicitly of infor- promulgation for the important outlet “an tute have who do not themselves by persons mation ideas unavailability of facilities,” and the access to [media] only “to can shackle advertising serve such editorial widest attempt in its to secure 'the Amendment First from diverse and of information possible dissemination ” Sullivan, New Times Co. York antagonistic sources.’ atS., 376 TI. 266. and fair requirement Doctrine’s full Fairness beyond doubt, a com-
coverage is, controversial issues for and, indeed, regula- mendable essential tool effective industry. But, alone, of the broadcast standing tion simply comple- cannot eliminate the need for a further, mentary through of controversial views the limited airing availability editorial advertising. Indeed, the avail- ability of some opportunity least editorial ad- “ if we vertising imperative are to attain the 'free ever *82 public general and discussion matters seems ab- [that] solutely prepare people essential to for an intelligent ” jean exercise of their Gros Ameri- rights citizens.’ Co., Press can 233, (1936). 297 U. S. 250
Ill Moreover, a proper of the balancing competing First Amendment interests in controversy at stake must consider, only not the interests of broadcasters and of the listening and viewing but also the public, independent First Amendment interest groups individuals in effective self-expression. g., e. T. See, Emerson, Toward 34 Press, United States v. Associated Supp. (SDNY 52 F. 362, 372 1943), aff’d, (1945). 326 1 U. S. Collins, See also Thomas v. 323 516, (1945) U. J., S. 545 (Jackson, concurring). 4-7 Theory (1966); First Amendment of the General (1941). in United Chafee, Speech Z. Free States essence public affairs ... is the “[SJpeech concerning Louisiana, Garrison v. 379 U. S. self-government,” there- the First Amendment 64, (1964), 74-75 must hear to only right fore not safeguard participate to debate, right but also the individuals attempt persuade in to others to their that debate Collins, g., e. Thomas v. points See, of view. U. S. Button, cf. NAACP v. (1945); 415, 371 U. S. (1963). And, apparently growing 429-430 a time of anonymity society, impera- of the individual our it is special preserve tive that we take care to the vital First Amendment in assuring interest “self-fulfillment [of expression] Dept, for each Police Chi- individual.” cago v. Mosley, 408 U. S. For our citizens may now find than ever the greater express need to their directly own public, views to the rather than through a governmentally appointed they if are to feel surrogate, they can achieve at least some measure of control over their own destinies.
In light these considerations, Court would con- I cede, assume, that our citizens have at least an abstract right express their views on controversial issues of public importance. But freedom of speech does exist in the abstract. the contrary, On the right speak can only if flourish it is allowed to operate in effeсtive an forum —whether be a park, a schoolroom, a town meeting hall, a soapbox, or a radio and television frequency. For in the absence of an effective means of communication, the right speak would hollow ring indeed. And, recognition these principles, we have *83 consistently held that the First Amendment embodies, only not right abstract to be free from but censorship, also the right an individual appropriate utilize an and effective medium for the expression of his views. 194 Tanner, 551, 559 g., Corp., Ltd. v. 407 U. S. Lloyd e.
See,
Dis-
School
Independent
Tinker v. Des Moines
(1972);
Em-
Food
trict,
(1969); Amalgamated
S. 503
393 U.
Plaza,
308
Logan Valley
Union
391 U.
ployees
v.
S.
Louisiana,
(1966);
Brown v.
S. 131
(1968);
383 U.
Carolina,
229
Kunz
(1963);
Edwards v. South
372 U. S.
York,
Ala-
(1951);
v.
U.
290
Marsh v.
New
340
S.
bama,
Texas,
326
Jamison v.
(1946);
U.
318 U. S.
S. 501
State,
v.
(1943);
(1939);
Schneider
308
S. 147
U.
CIO,
v.
Hague
(1939).
U. S. 496
Here, of
there
be
can
no doubt that the broad-
course,
frequencies
cast
to the
tele-
allotted
various radio and
vision licensees constitute
“forums”
appropriate
discussion of controversial
of public importance.35
issues
however,
suggestion,
The Court does make the rather novel
advertising might
that editorial
“inappropriate”
indeed be
because
”
‘captive
Ante,
“listeners and viewers constitute a
audience.’
at
support
127. In
proposition,
of this
de
Court cites our
Poliak,
(1952),
in Public
cisions
Utilities Comm’n
S.
v.
343 U.
Cooper,
(1949).
Poliak,
Kovacs v.
195 parks, public libraries, unlike the Indeed, streets, appropriate have held to be other “forums” that we of First the broadcast rights, exercise Amendment And, specifically media are dedicated to communication. com- expression political, since the of ideas—whether mercial, musical, purpose or otherwise —is the exclusive adop- clear that spectrum, broadcast seems tion of a limited would advertising scheme editorial in no sense divert spectrum from its intended use. Lloyd Gorp., Tanner, Amalga- Ltd. v. supra, Cf. at 563; Plaza, Employees mated Food v. Logan Valley Union supra, at 320.
Moreover, equally that, it is clear with the assistance of the Federal Government, industry the broadcast become what potentially the most efficient and effective “marketplace of ideas” ever devised.36 elec- Indeed, the tronic today public’s media are “the prime source of 37 information,” and we have recognized ourselves . “technology supplants broadcast . . atomized, relatively may sons expressed is, itself, find the ideas offensive offensive to very meaning of the First Amendment. 36Indeed, approximately of American contain at homes 95% set, least average one television and that set is turned on for an per day. Hearings more than five and one-half hours R. See on H. 13721 before the Subcommittee on Communications and Power of Foreign Commerce, the House Committee on Interstate and 91st Cong., Sess., (1970) (statement Burch, 2d 7 of Dean Chairman of Commission). potential the Federal Communications As to the influence of the thought, generally electronic media on American see Krock, A. (1971); The Consent of the Governed 66 H. Mendelsohn & Polls, Crespi, Television, (1970); I. New Politics Malone, Reform, 5 U. Mich. J. L. at 197. (1969). Rep. 91-257, p. study, H. R. According No. to one prefer the Americans electronic media to other sources of 67% Wyckoff, Image information. See G. Candidates 13-14 See also 73.35, 73.240, Amendment of and 73.636 of the Sections Rules, (1970) (59% Commission’s 22 F. C. C. 2d depend Americans principal news). on television as their source of prime media with informal communication mass Lion . Red and news . . source of national cohesion Broadcasting FCC, Thus, n. 15. S., Co. v. 395 U. at 386 *85 may have “full and free of ideas although discussion” reality heyday political pamphleteering, in the been a developments in of com- technological modern the field soapbox made the and the munications have orator virtually And, light leafleteer obsolete. of the current of the media effective dominance electronic as the most any absolutely reaching public, policy means of that necessarily denies citizens access to the airwaves renders concept free practically even the of “full and discussion” meaningless. it
Regrettably, precisely such a policy that upholds today. since Court effectuation the in- And, right speak through dividual’s to a limited scheme of editorial advertising only further, can serve to rather than inhibit, public’s to receiving interest in suitable exposure wide-open” and robust, debate “uninhibited, on controversial issues, challenged upheld ban can be only if determined such editorial advertising unjustifiably would impair the assertedly broadcaster’s overriding interest in exercising absolute control over “his” frequency.38 Such an analysis, however, hardly reflects the delicate balancing interests that this sensi- tive question Indeed, demands. this ap- “absolutist” proach wholly disregards the competing Amend- First ment rights of all “non-broadcaster” citizens, ignores the that, although It should be noted the Fairness Doctrine is at arguably least public’s relevant to receiving interest in suitable exposure “uninhibited, robust, wide-open” and debate on contro issues, versial any it is not in sense relevant to the individual’s obtaining interest access purpose to the airwaves for the of effec self-expression. tive For the individual’s expressing interest in his own a views in choosing manner of inherently his own personal is an one, and by it can never be expression satisfied of “similar” views by surrogate spokesman. Broadcasting Lion in Red decision teachings of our recent by the historical FCC, supported and is not supra, Co. v. Nation. this regulation broadcast purposes underlying clearly it was remembered, Prior it must be to part was spectrum broadcast recognized frequen- As the allocation result, domain. and entirely sector,39 groups private cies was left to the of access right and had the same individuals therefore they still have, radio facilities had, “anyone may transmit.” printed press is, who will —that scheme, however, Under the number broadcasters dramatically by every frequency increased so occupied station, many was least one were occupied by several. “The was result confusion everybody nobody chaos. With could *86 air, the States, heard.” Broadcasting National v. United Co. 319 190, (1943). U. 212 “apparent S. It soon became frequencies broadcast a scarce constituted resource whose use regulated by could be only and rationalized the Red Broadcasting FCC, Government.” Lion Co. v. supra, at 376. Thus, the Radio Act of 44 Stat. 1162, Congress placed spectrum the broadcast under federal regulation and to sought reconcile com- peting uses of the a setting airwaves aside limited number of frequencies for important each of the uses of radio.41 since And, the frequencies number of allo- cated to broadcasting was necessarily limited, the
39Indeed, pre-1927 regulation gave of radio no discretion to the Federal deny right Government operate to a to broadсast station. See 1 Socolow, A. Broadcasting Law (1939); of Radio Warner, H. seq. Radio & Television Law 757 et (1948); gen see erally Broadcasting National States, Co. v. United 319 U. S. 210-214 40 Cong. (Rep. White). Rec. 5479 include, These course, only public broadcasting, but also operation, aircraft, “amateur police, defense, navigation . . . .” Red Broadcasting Lion FCC, Co. S., at 395 U. 388. to some licenses compelled grant to was Government generally them to others. See denying while applicants 375-377, FCC, Broadcasting supra, Co. v. Lion Bed States, supra, Broadcasting Co. v. United 388; National at 210-214. overcrowding need avoid
Although overriding a ceil- imposition of clearly justifies airwaves permitted who will be on the number of individuals ing it operate broadcast stations42 renders and, indeed, right an Amendment posit unabridgeable “idle to First every to the individual comparable right to broadcast any not in sense speak, write, publish,” does dictate that First Amendment continuing rights entirely. all nonlicensees be aside Under brushed existing system, granted pre- broadcast licensees are respect ferred status with to the not because airwaves, they competed successfully have but,, in the free market rather, “because of their initial government selec- . tion . . .” FCC, Red Lion Broadcasting supra, Co. v. at 400. in return for And, “preferred status,” licensees must respect competing First Amendment
42Although licensing necessarily scheme restricts the First rights Amendment groups of those or individuals denied who are “right” operate station, not, itself, broadcast it does in and of violate the long recognized First Amendment. For it has been “ [conflicting when demands compel on the . . same . [forum] *87 among potential uses,” make choices [Government] users and govern neutral rules of allocation to that scarce communications per are Dept, resource se Chicago Police unconstitutional. Mosley, 92, (1972); 408 U. Louisiana, S. cf. Cox v. 379 U. S. 536, (1965); Cox v. New Hampshire, (1941); 312 U. S. State, Schneider v. (1939). And, 308 U. S. in the con broadcasting, text of it would be ironic “if indeed Amend First ment, protecting furthering aimed at communications, prevented making Government from possible radio communication . . . by limiting the number of licenses so as not to overcrowd the spectrum.” Broadcasting Bed Lion FCC, supra, Co. v. at 389. 43Id., at 388. has a broadcaster although
rights Thus, of others. be free from Government right clear Amendment First and, own views44 expression his censorship reasonable exercising significant has a interest indeed, facilities, journalistic over of his “[t]he control the use not em- . . . does right speech broadcaster of free Id., others.” right speech brace a out snuff free con- added). Indeed, after careful (emphasis at 387 in this regulation sideration of the nature broadcast country, specifically we have declared that
“as far the First is concerned as Amendment those who are licensed no better than those stand permits whom are A licenses refused. license no broadcasting, but the licensee has constitutional right to . monopolize frequency . . radio to the Id., exclusion his fellow citizens.” at 389. Because I believe this today view is as when sound only voiced years only four I ago, can conclude that simply there is no overriding First Amendment interest justify broadcasters that can the absolute exclusion of virtually all of our citizens from the most effective “marketplace of ideas” ever devised.
This not to say, of course, that broadcasters have no First Amendment interest exercising journalistic supervision over the use of their facilities. On the contrary, such an interest does indeed it an exist, interest that must weighed heavily in any legitimate effort to balance the competing First in Amendment terests involved in In this case. striking such a balance, however, emphasized must be these cases deal only with the advertising allocation of time —air time that broadcasters regularly relinquish to others without retention of significant editorial control. Thus, we are here, concerned not with the speech of broadcasters thems 44 See, g., e. 47 U. S. C. 326. §
200 which “right” to decide their but, rather, with
elves,'45 speak to opportunity an be given individuals will other public. already opеned been to the forum has on editorial absolute ban in this context, Viewed although because, offensive particularly advertising seems groups time to any air whatever refuse to sell broadcasters on issues out controversial speak wishing or individuals to readily make such air time importance, they to who seek to “commercial” advertisers available those the public. Thus, to goods their and services peddle market any person to system wishing now operates, or deodorant toothpaste, brand particular beer, soap, to the instantaneous access direct, personal, message, media. can own present electronic his He time of at a words, selects, his own format he any to seeking choosing. own a similar individual his Yet war, suffering discuss pollution, or the peace, is com- poor speak. Instead, is denied he right pelled rely on of a “trustee” corporate the beneficence him. appointed argue his Government case long It has been recognized, however, although may subjected access to reasonable forums “time, place, and manner” elective regulations,46 “[s] from a may exclusions public forum not be based . . . Dept. content alone .” Police Chicago Mosley, v. S., at 96 (emphasis added); U. see, g., e. Shuttle City sworth v. Birmingham, (1969); 394 U. S. 45Thus, Appeals as the recognized, pro Court of normal “[i]n time, gramming closely by broadcasters, controlled and edited constellation of substantially constitutional interests would be dif G, App. ferent.” U. S. D. at 2d, 450 F. at 654. 46See, g., Chicago e. Police Dept, Mosley, supra, 98; v. at Groyned City Rockford, S., v. 115; Louisiana, 408 U. at Cox v. supra, 554; Hampshire, at Poulos New (1953); U. S. supra, Cox Hampshire, 575-576; v. New State, supra, Schneider v. at 160.
201 Carolina, Fowler 229 (1963); 372 S. Edwards v. South U. Island, (1953); U. 67 Niemotko v. Rhode 345 S. York, Saia v. New 334 (1951); U. Maryland, S. course, of the differential treat (1948). Here, U. S. 558 speech “commercial” and “controversial” ment accorded Moreover, and not clearly principle.47 violates that given “com irony, without some the favored treatment existing clearly under the scheme re speech mercial” priorities. For it verses traditional First Amendment generally speech been understood that “commercial” enjoys protection speech less First Amendment than directed at the discussion of controversial issues of Alexandria, g., importance. See, e. Breará v. 341 U. S. Chrestensen, 622 (1951); Valentine v. U. S.
The First Amendment values individual self- through expression fulfillment participa- individual tion in public liberty. debate are central concept to our If these values are survive age technology, it is permitted essential individuals be at least some opportunity express their views on public over issues electronic media. those Balancing against interests the limited interest of “jour- broadcasters exercising nalistic supervision” over the mere allocation advertis- ing time that already is made available to some members of the I public, simply cannot conclude that the interest of broadcasters prevail. must
IV Finally, the Court raises specter of administrative apocalypse as justification for its today. decision Court’s fears derive largely from the implicit assumption,
47Contrary to the assertion, Court’s the existence of the Fairness any Doctrine cannot in sense rationalize Indeed, this discrimination. wholly Fairness Doctrine unresponsive to the need for individ ual access to the purpose airwaves for the self-expression. of effective 38, supra. See also n. an Appeals mandated Court analysis, in its reality, In to the airwaves access right absolute there not whether in these cases is however, the issue may there rather, whether but, of access right absolute an is, The difference access. denial of absolute such be an misconception the Court's course, crucial, and the administrative evaluation of seriously distorts issue its *90 might ban of the absolute difficulties that an invalidation conceivably entail. potential three hypothesizes the Court
Specifically, ad- availability of editorial difficulty: (1) of sources adjustments in the vertising might, absence of the (2) application system, wealthy; tend to favor the ad- advertising might to editorial Fairness Doctrine doctrine; versely operation affect that (3) might lead to an regulation advertising editorial content of enlargement of Government control over the are, legitimate broadcast discussion. These of course, present and, indeed, important But, concerns. they have time, simply are concerns —not realities. We way sure whether, extent, no and what if knowing potential these any, actually difficulties will materialize. The Court’s bare assumption hypothetical these problems are both inevitable and insurmountable indi- cates an utter ability lack of confidence in the of the adjust Commission licensees to changing dynamic conditions of a medium. This sudden lack of is, confidence of course, strikingly with the inconsistent general propositions underlying aspects all other of the approach Court’s to this case. noteworthy it
Moreover, years that, 28 ago, the Commission itself declared that operation
“the of any station under the extreme principles that no time shall be sold for the dis- in- ... public of controversial issues cussion . interest. . . concept with the consistent bal- recognizes good program Commission of time permit or donation may ance sale may and that purposes to all who seek it for such problems calling judgment difficult for careful may be involved part management station all deciding applicants time when among However, competent cannot be accommodated. management problems to meet should able such all con- interest and with fairness to cerned. The places fact an arduous task on management should not be made a reason for evading the a strict rule issue the sale against any time for programs type mentioned.” Broadcasting Go., United 10 F. C. 515, C.
I can why see no reason Commission licensees should any today they be deemed competent less then *91 were And 1945. if intervening developments even have increased the complexities involved in implementing a limited right of access, there certainly no dearth of proposed solutions to potential difficulties feared the Court. See, g., e. Canby, The First Amendment Right to Persuade: to Access Radio and Television, U. C. L. A. L. Rev. 723, 754-757 (1972); Malone, Broad- casting, the Reluctant Dragon: Will the First Amend- ment Right of Access End the Suppressing Controver- sial Ideas?, 5 U. Mich. J. L. Reform 193, (1972) 252-269 ; Johnson & A Westen, Twentieth-Century Soapbox: The Right to Purchase Radio and Television Time, 57 Va. L. Rev. 574 (1971); Note, 85 Harv. L. Rev. 693-699
With these considerations mind, of Ap- Court peals confined itself to invalidating the flat alone, ban licensees to the Commission latitude48 leaving broad regulations first instance reasonable develop in the In the advertising. availability of editorial govern the wisest course surely cases, of these was context these administration of “if with follow, experience effect they have the net doctrines indicates Amendment than reducing enhancing rather [First to reconsider enough there will time values], Broadcasting Red Lion implications.” constitutional FCC, Co. v. atS., 395 U. 393. however, time, ever,
For the until such if present, assertedly as these difficulties “overriding” administrative actually I materialize, must with agree the conclusion Appeals although Court of “it unsettle may of us political some an or a message party see antiwar message place soap the accustomed or beer com- mercial ... we must what is equate habitual with what what right society is constitutional. A —or already so with saturated commercialism can well afford another speech outlet for issues. All we may lose is our apathy.” some of *92 did, Appeals however, suggest Court of possible certain implementation. contours of example, For the court noted that permitted broadcasters place should “to an outside limit on the “ they total amount advertising sell,” of editorial will and 'reasonable regulation’ placement altogether proper.” advertisements is App. C., U. S. 2d, D. at 450 F. at 663. 49 Id., 204r-205, 2d, 450 F. at 665-666.