Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969)
It is permissible under the First Amendment to require media outlets to make broadcast time available for responses to personal attacks.
A Pennsylvania radio station, WGCB, was operated by the Red Lion Broadcasting Co. It broadcasted a 15-minute presentation by the Reverend Billy James Hargis in its Christian Crusade Series, during which Hargis discussed a book by Fred J. Cook entitled Goldwater--Extremist to the Right. Hargis alleged that Cook had been fired from the newspaper where he worked because he had filed false charges against city officials. He also claimed that Cook had supported Communist sympathizer Alger Hiss, had worked for a Communist publication, had criticized J. Edgar Hoover and the CIA, and had written the Goldwater book to smear his reputation.
Cook demanded reply time on the station to respond to what he perceived as a personal attack. When WGCB refused, the FCC became involved. It found that Red Lion had failed to comply with the fairness doctrine that affects broadcast media and requires providing free reply time to the target of the attack as well as sending him a tape, transcript, or summary of the presentation. It ruled that the presentation was in fact a public attack, which required offering free reply time to Cook. The FCC also planned a rulemaking that would allow it to more effectively enforce the fairness doctrine and its implications for personal attacks. Red Lion argued that this application of the fairness doctrine was unconstitutional under the First Amendment.
- Byron Raymond White (Author)
- Earl Warren
- Hugo Lafayette Black
- John Marshall Harlan II
- Potter Stewart
- Thurgood Marshall
- William Orville Douglas
- William Joseph Brennan, Jr.
The fairness doctrine, developed by the FCC, requires radio and television broadcasters to present both sides of public issues in discussions on broadcast stations. It is based on the theory that broadcast frequencies are limited, and many parties may be unable to express their views through this medium if they lack government assistance. The regulations and rulings are constitutional and within the scope of the agency's statutory authority. The First Amendment rights of viewers and listeners are more important than the rights of the broadcasters in this context.Case Commentary
The government has more authority over broadcast media because of the scarcity rationale, which is based on the limited space of the air waves. Broadcast entities receive licenses from the government, and their rights come with responsibilities to provide fair, unbiased coverage so that listeners are informed.
U.S. Supreme CourtRed Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969)
Red Lion Broadcasting Co., Inc. v.
Federal Communications Commission
Argued April 2-3, 1969
Decided June 9, 1969*
395 U.S. 367
The Federal Communications Commission (FCC) has for many years imposed on broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program which constituted a personal attack on one Cook, and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the FCC's position. After the commencement of the Red Lion litigation, the FCC began a rulemaking proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the Court of Appeals in RTNDA (No. 717) as abridging the freedoms of speech and press.
1. The history of the fairness doctrine and of related legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that, in adopting the new regulations, the FCC was implementing congressional policy. Pp. 395 U. S. 375-386.
(a) The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicants in the public interest, and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine. Pp. 395 U. S. 375-379.
(b) The FCC's statutory mandate to see that broadcasters operate in the public interest and Congress' reaffirmation, in the
1959 amendment to § 315 of the Communications Act, of the FCC's view that the fairness doctrine inhered in the public interest standard, support the conclusion that the doctrine and its component personal attack and political editorializing' regulations are a legitimate exercise of congressionally delegated authority. Pp. 395 U. S. 379-386.
2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. Pp. 395 U. S. 386-401.
(a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. Pp. 395 U. S. 386-390.
(b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. Pp. 395 U. S. 390-392.
(c) The danger that licensees will eliminate coverage of controversial issues as a result of the personal attack and political editorial rules is, at best, speculative, and, in any event, the FCC has authority to guard against this danger. Pp. 395 U. S. 392-395.
(d) There was nothing vague about the FCC's specific ruling in the Red Lion case, and the regulations at issue in No. 717 could be employed in precisely the same way as the fairness doctrine in Red Lion. It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise. Pp. 395 U. S. 395-396.
(e) It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. Pp. 395 U. S. 396-400.
No. 2, 127 U.S.App.D.C. 129, 381 F.2d 908, affirmed; No. 717, 400 F.2d 1002, reversed and remanded.