The Democratic National Committee requested a declaratory ruling
from the Federal Communications Commission (FCC) that the
Communications Act or the First Amendment precluded a licensee from
having a general policy of refusing to sell time to "responsible
entities" to present their views on public issues. The Business
Executives' Move for Vietnam Peace filed a complaint with the FCC,
alleging that a broadcaster had violated the First Amendment by
refusing to sell it time to broadcast spot announcements expressing
the group's views on the Vietnam conflict, and that the station's
coverage of anti-war views did not meet the requirements of the
Fairness Doctrine. The FCC rejected the Fairness Doctrine
challenge, and ruled that a broadcaster was not prohibited from
having a policy of refusing to accept paid editorial advertisements
by individuals and organizations like respondents. The Court of
Appeals reversed, holding that "a flat ban on paid public issue
announcements is in violation of the First Amendment, at least when
other sorts of paid announcements are accepted," and remanded the
causes to the FCC to develop regulations governing which, and how
many, editorial announcements would be aired.
Held: Neither the Communications Act nor the First
Amendment requires broadcasters to accept paid editorial
advertisements. Pp.
412 U. S.
101-114;
412 U. S.
121-170.
146 U.S.App.D.C. 181, 450 F.2d 642, reversed.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with
respect to Parts I, II, and IV, finding that:
1. The basic criterion governing use of broadcast frequencies is
the right of the public to be informed; the manner by which
this
Page 412 U. S. 95
interest is best served is dispositive of the respondents'
statutory and First Amendment contentions. Pp.
412 U. S.
101-114.
(a) In evaluating respondents' claims, great weight must be
afforded the decisions of Congress and the experience of the FCC.
Pp.
412 U. S.
101-103.
(b) Congress has consistently rejected efforts to impose on
broadcasters a "common carrier" right of access for all persons
wishing to speak out on public issues. Instead, it reposed in the
FCC regulatory authority by which the Fairness Doctrine was evolved
to require that the broadcaster's coverage of important public
issues must be adequate and must fairly reflect differing
viewpoints; thus, no private individual or group has a right to
command the use of broadcast facilities. Pp.
412 U. S.
103-114.
2. The "public interest" standard of the Communications Act,
which incorporates First Amendment principles, does not require
broadcasters to accept editorial advertisements. Pp.
412 U. S.
121-131.
(a) The FCC was justified in concluding that the public
interest, in having access to the marketplace of "ideas and
experiences," would not be served by ordering a right of access to
advertising time. There is substantial risk that such a system
would be monopolized by those who could and would pay the costs,
that the effective operation of the Fairness Doctrine itself would
be undermined, and that the public accountability which now rests
with the broadcaster would be diluted. Pp.
412 U. S.
121-125.
(b) The difficult problems involved in implementing an absolute
right of access would inevitably implicate the FCC in a
case-by-case determination of who should be heard and when, thus
enlarging the involvement of the Government in broadcasting
operations. The FCC could properly take into account the fact that
listeners and viewers constitute a kind of "captive audience," and
that the public interest requires that a substantial degree of
journalistic discretion must remain with broadcasters. Pp.
412 U. S.
126-130.
THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and MR. JUSTICE
REHNQUIST, concluded, in Part III, that a broadcast licensee's
refusal to accept a paid editorial advertisement does not
constitute "governmental action" for First Amendment purposes. The
Government is neither a "partner" to the action complained of nor
engaged in a "symbiotic relationship" with the licensee. Pp.
412 U. S.
114-121.
(a) Under the Communications Act, a broadcast licensee is vested
with substantial journalistic discretion in deciding how to meet
its statutory obligations as a "public trustee." Pp.
412 U. S.
114-117.
Page 412 U. S. 96
(b) The licensee's policy against accepting editorial
advertising is compatible with the Communications Act and with the
broadcaster's obligation to provide a balanced treatment of
controversial questions. Pp.
412 U. S.
118-121.
(c) The FCC has not fostered the licensee policy against
accepting editorial advertisements; it has merely declined to
command acceptance because the subject was a matter within the area
of journalistic discretion. P.
412 U. S.
118.
BURGER, C.J., announced the Court's judgment and delivered an
opinion of the Court with respect to Parts I, II, and IV, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in which
as to Parts I, II, and III STEWART and REHNQUIST, JJ., joined.
STEWART, J., filed an opinion concurring in Parts I, II, and III,
post, p.
412 U. S. 132.
WHITE, J., filed an opinion concurring in Parts I, II, and IV,
post, p.
412 U. S. 146.
BLACKMUN, J., filed an opinion concurring in Parts I, II, and IV,
in which POWELL, J., joined,
post p.
412 U. S. 147.
DOUGLAS, J., filed an opinion concurring in the judgment,
post, p.
412 U.S.
148. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL, J., joined,
post, p.
412 U. S.
170.
Page 412 U. S. 97
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court
(Parts I, II, and IV), together with an opinion (Part III), in
which MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST joined.
We granted the writs of certiorari in these cases to consider
whether a broadcast licensee's general policy of not selling
advertising time to individuals or groups wishing to speak out on
issues they consider important violates the Federal Communications
Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151
et
seq., or the First Amendment.
In two orders announced the same day, the Federal Communications
Commission ruled that a broadcaster who meets his public obligation
to provide full and fair coverage of public issues is not required
to accept editorial advertisements.
Democratic National
Committee, 25 F.C.C.2d 216;
Business Executives' Move for
Vietnam Peace, 25 F.C.C.2d 242. A divided Court of Appeals
reversed the Commission, holding that a broadcaster's fixed policy
of refusing editorial advertisements violates the First Amendment;
the court remanded the cases to the Commission to develop
procedures and guidelines for administering a First Amendment right
of access.
Business Executives' Move For Vietnam Peace v.
FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971).
The complainants in these actions are the Democratic
Page 412 U. S. 98
National Committee (DNC) and the Business Executives' Move for
Vietnam Peace (BEM), a national organization of businessmen opposed
to United States involvement in the Vietnam conflict. In January,
1970, BEM filed a complaint with the Commission charging that radio
station WTOP in Washington, D.C., had refused to sell it time to
broadcast a series of one-minute spot announcements expressing BEM
views on Vietnam. WTOP, in common with many, but not all,
broadcasters, followed a policy of refusing to sell time for spot
announcements to individuals and groups who wished to expound their
views on controversial issues. WTOP took the position that, since
it presented full and fair coverage of important public questions,
including the Vietnam conflict, it was justified in refusing to
accept editorial advertisements. WTOP also submitted evidence
showing that the station had aired the views of critics of our
Vietnam policy on numerous occasions. BEM challenged the fairness
of WTOP's coverage of criticism of that policy, but it presented no
evidence in support of that claim.
Four months later, in May, 1970, DNC filed with the Commission a
request for a declaratory ruling:
"That, under the First Amendment to the Constitution and the
Communications Act, a broadcaster may not, as a general policy,
refuse to sell time to responsible entities, such as the DNC, for
the solicitation of funds and for comment on public issues."
DNC claimed that it intended to purchase time from radio and
television stations and from the national networks in order to
present the views of the Democratic Party, and to solicit funds.
Unlike BEM, DNC did not object to the policies of any particular
broadcaster, but claimed that its prior
"experiences in this area make it
Page 412 U. S. 99
clear that it will encounter considerable difficulty -- if not
total frustration of its efforts -- in carrying out its plans in
the event the Commission should decline to issue a ruling as
requested."
DNC cited
Red Lion Broadcasting Co. v. FCC,
395 U. S. 367
(1969), as establishing a limited constitutional right of access to
the airwaves.
In two separate opinions, the Commission rejected respondents'
claims that "responsible" individuals and groups have a right to
purchase advertising time to comment on public issues without
regard to whether the broadcaster has complied with the Fairness
Doctrine. The Commission viewed the issue as one of major
significance in administering the regulatory scheme relating to the
electronic media, one going "to the heart of the system of
broadcasting which has developed in this country. . . ." 25
F.C.C.2d at 221. After reviewing the legislative history of the
Communications Act, the provisions of the Act itself, the
Commission's decisions under the Act, and the difficult problems
inherent in administering a right of access, the Commission
rejected the demands of BEM and DNC.
The Commission also rejected BEM's claim that WTOP had violated
the Fairness Doctrine by failing to air views such as those held by
members of BEM; the Commission pointed out that BEM had made only a
"general allegation" of unfairness in WTOP's coverage of the
Vietnam conflict, and that the station had adequately rebutted the
charge by affidavit. The Commission did, however, uphold DNC's
position that the statute recognized a right of political parties
to purchase broadcast time for the purpose of soliciting funds. The
Commission noted that Congress has accorded special consideration
for access by political parties,
see 47 U.S.C. § 315(a),
and that solicitation of funds by political parties is both
Page 412 U. S. 100
feasible and appropriate in the short space of time generally
allotted to spot advertisements. [
Footnote 1]
A majority of the Court of Appeals reversed the Commission,
holding that "a flat ban on paid public issue announcements is in
violation of the First Amendment, at least when other sorts of paid
announcements are accepted." 146 U.S.App.D.C. at 185, 450 F.2d at
646. Recognizing that the broadcast frequencies are a scarce
resource inherently unavailable to all, the court nevertheless
concluded that the First Amendment mandated an "abridgeable" right
to present editorial advertisements. The court reasoned that a
broadcaster's policy of airing commercial advertisements but not
editorial advertisements constitutes unconstitutional
discrimination. The court did not, however, order that either BEM's
or DNC's proposed announcements must be accepted by the
broadcasters; rather, it remanded the cases to the Commission to
develop "reasonable procedures and regulations determining which
and how many
editorial advertisements' will be put on the air."
Ibid.
Judge McGowan dissented; in his view, the First Amendment did
not compel the Commission to undertake the task assigned to it by
the majority:
"It is presently the obligation of a licensee to advance the
public's right to know by devoting a substantial amount of time to
the presentation of controversial views on issues of public
importance, striking a balance which is always subject to redress
by reference to the fairness doctrine. Failure to do so puts
continuation of the license at risk -- a sanction of tremendous
potency, and one which the Commission is under increasing pressure
to employ. "
Page 412 U. S. 101
"This is the system which Congress has, wisely or not, provided
as the alternative to public ownership and operation of radio and
television communications facilities. This approach has never been
thought to be other than within the permissible limits of
constitutional choice."
146 U.S.App.D.C. at 205, 450 F.2d at 666. Judge McGowan
concluded that the court's decision to overrule the Commission and
to remand for development and implementation of a constitutional
right of access put the Commission in a "constitutional
straitjacket" on a highly complex and far-reaching issue.
I
MR. JUSTICE WHITE's opinion for the Court in
Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367
(1969), makes clear that the broadcast media pose unique and
special problems not present in the traditional free speech case.
Unlike other media, broadcasting is subject to an inherent physical
limitation. Broadcast frequencies are a scarce resource; they must
be portioned out among applicants. All who possess the financial
resources and the desire to communicate by television or radio
cannot be satisfactorily accommodated. The Court spoke to this
reality when, in
Red Lion, we said
"it is idle to posit an unabridgeable First Amendment right to
broadcast comparable to the right of every individual to speak,
write, or publish."
Id. at
395 U. S.
388.
Because the broadcast media utilize a valuable and limited
public resource, there is also present an unusual order of First
Amendment values.
Red Lion discussed at length the
application of the First Amendment to the broadcast media. In
analyzing the broadcasters' claim that the Fairness Doctrine and
two of its component rules violated their freedom of expression,
we
Page 412 U. S. 102
held that
"[n]o one has a First Amendment right to a license or to
monopolize a radio frequency; to deny a station license because
'the public interest' requires it 'is not a denial of free
speech.'"
Id. at
395 U. S. 389.
Although the broadcaster is not without protection under the First
Amendment,
United States v. Paramount Pictures, Inc.,
334 U. S. 131,
334 U. S. 166
(1948),
"[i]t is the right of the viewers and listeners, not the right
of the broadcasters, which is paramount. . . . It is the right of
the public to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences which is crucial
here. That right may not constitutionally be abridged either by
Congress or by the FCC."
Red Lion, supra, at
395 U. S.
390.
Balancing the various First Amendment interests involved in the
broadcast media and determining what best serves the public's right
to be informed is a task of a great delicacy and difficulty. The
process must necessarily be undertaken within the framework of the
regulatory scheme that has evolved over the course of the past half
century. For, during that time, Congress and its chosen regulatory
agency have established a delicately balanced system of regulation
intended to serve the interests of all concerned. The problems of
regulation are rendered more difficult because the broadcast
industry is dynamic in terms of technological change; solutions
adequate a decade ago are not necessarily so now, and those
acceptable today may well be outmoded 10 years hence.
Thus, in evaluating the First Amendment claims of respondents,
we must afford great weight to the decisions of Congress and the
experience of the Commission. Professor Chafee aptly observed:
"Once we get away from the bare words of the [First] Amendment,
we must construe it as part of a Constitution which creates a
government for the purpose of performing several very important
tasks.
Page 412 U. S. 103
The [First] Amendment should be interpreted so as not to cripple
the regular work of the government. A part of this work is the
regulation of interstate and foreign commerce, and this has come,
in our modern age, to include the job of parceling out the air
among broadcasters, which Congress has entrusted to the FCC.
Therefore, every free speech problem in the radio has to be
considered with reference to the satisfactory performance of this
job, as well as to the value of open discussion. Although free
speech should weigh heavily in the scale in the event of conflict,
still the Commission should be given ample scope to do its
job."
2 Z. Chafee, Government and Mass Communications 640-641 (1947).
The judgment of the Legislative Branch cannot be ignored or
undervalued simply because one segment of the broadcast
constituency casts its claims under the umbrella of the First
Amendment. That is not to say we "defer" to the judgment of the
Congress and the Commission on a constitutional question, or that
we would hesitate to invoke the Constitution should we determine
that the Commission has not fulfilled its task with appropriate
sensitivity to the interests in free expression. The point is,
rather, that, when we face a complex problem with many hard
questions and few easy answers, we do well to pay careful attention
to how the other branches of Government have addressed the same
problem. Thus, before confronting the specific legal issues in
these cases, we turn to an examination of the legislative and
administrative development of our broadcast system over the last
half century.
II
This Court has, on numerous occasions, recounted the origins of
our modern system of broadcast regulation.
See, e.g., Red Lion,
supra, at
395 U. S.
375-386;
National
Broadcasting
Page 412 U. S. 104
Co. v. United States, 319 U. S. 190,
319 U. S.
210-217 (1943);
FCC v. Sanders Brothers Radio
Station, 309 U. S. 470,
309 U. S. 474
(1940);
FCC v. Pottsville Broadcasting Co., 309 U.
S. 134,
309 U. S.
137-138 (1940). We have noted that, prior to the passage
of the Radio Act of 1927, 44 Stat. 1162, broadcasting was marked by
chaos. The unregulated and burgeoning private use of the new media
in the 1920's had resulted in an intolerable situation demanding
congressional action:
"It quickly became apparent that broadcast frequencies
constituted a scarce resource whose use could be regulated and
rationalized only by the Government. Without government control,
the medium would be of little use because of the cacaphony of
competing voices, none of which could be clearly and predictably
heard."
Red Lion, supra, at
395 U. S. 376.
But, once it was accepted that broadcasting was subject to
regulation, Congress was confronted with a major dilemma: how to
strike a proper balance between private and public control.
Cf.
Farmers Union v. WDAY, 360 U. S. 525,
360 U. S. 528
(1959).
One of the earliest and most frequently quoted statements of
this dilemma is that of Herbert Hoover, when he was Secretary of
Commerce. While his Department was making exploratory attempts to
deal with the infant broadcasting industry in the early 1920's, he
testified before a House Committee:
"We cannot allow any single person or group to place themselves
in [a] position where they can censor the material which shall be
broadcasted to the public, nor do I believe that the Government
should ever be placed in the position of censoring this
material."
Hearings on H.R. 7357 before the House Committee on the Merchant
Marine and Fisheries, 68th Cong., 1st Sess., 8 (1924).
Page 412 U. S. 105
That statement foreshadowed the "tightrope" aspects of
Government regulation of the broadcast media, a problem the
Congress, the Commission, and the courts have struggled with ever
since. Congress appears to have concluded, however, that of these
two choices -- private or official censorship -- Government
censorship would be the most pervasive, the most self-serving, the
most difficult to restrain, and hence the one most to be
avoided.
The legislative history of the Radio Act of 1927, the model for
our present statutory scheme,
see FCC v. Pottsville
Broadcasting Co., supra, at
309 U. S. 137,
reveals that, in the area of discussion of public issues, Congress
chose to leave broad journalistic discretion with the licensee.
Congress specifically dealt with -- and firmly rejected -- the
argument that the broadcast facilities should be open on a
nonselective basis to all persons wishing to talk about public
issues. Some members of Congress -- those whose views were
ultimately rejected -- strenuously objected to the unregulated
power of broadcasters to reject applications for service.
See,
e.g., H.R.Rep. No. 404, 69th Cong., 1st Sess., 18 (minority
report). They regarded the exercise of such power to be "private
censorship," which should be controlled by treating broadcasters as
public utilities. [
Footnote 2]
The provision that came closest to imposing an unlimited right of
access to broadcast time was part of the bill reported to the
Senate by the Committee on Interstate Commerce. The
Page 412 U. S. 106
bill that emerged from the Committee contained the following
provision:
"[I]f any licensee shall permit a broadcasting station to be
used . . . by a candidate or candidates for any public office,
or for the discussion of any question affecting the
public, he shall make no discrimination as to the use of such
broadcasting station,
and with respect to said matters the
licensee shall be deemed a common carrier in interstate
commerce: Provided, that such licensee shall have no power to
censor the material broadcast."
67 Cong.Rec. 12503 (1926) (emphasis added). When the bill came
to the Senate floor, the principal architect of the Radio Act of
1927, Senator Dill, offered an amendment to the provision to
eliminate the common carrier obligation and to restrict the right
of access to candidates for public office. Senator Dill explained
the need for the amendment:
"When we recall that broadcasting today is purely voluntary, and
the listener-in pays nothing for it, that the broadcaster gives it
for the purpose of building up his reputation, it seemed unwise to
put the broadcaster under the hampering control of being a common
carrier and compelled to accept anything and everything that was
offered him so long as the price was paid."
67 Cong.Rec. 12502. The Senators were also sensitive to the
problems involved in legislating "equal opportunities" with respect
to the discussion of public issues. Senator Dill stated:
"['Public questions'] is such a general term that there is
probably no question of any interest whatsoever that could be
discussed but that the other side of it could demand time; and
thus, a radio station
Page 412 U. S. 107
would be placed in the position that the Senator from Iowa
mentions about candidates, namely, that they would have to give all
their time to that kind of discussion, or no public question could
be discussed."
Id. at 12504.
The Senate adopted Senator Dill's amendment. The provision
finally enacted, § 18 of the Radio Act of 1927, 44 Stat. 1170, was
later reenacted as § 315(a) of the Communications Act of 1934,
[
Footnote 3] but only after
Congress rejected another proposal that would have imposed a
limited obligation on broadcasters to turn over their microphones
to persons wishing to speak out on certain
Page 412 U. S. 108
public issues. [
Footnote 4]
Instead, Congress, after prolonged consideration, adopted § 3(h),
which specifically provides that "a person engaged in radio
broadcasting shall not,
Page 412 U. S. 109
insofar as such person is so engaged, be deemed a common
carrier." [
Footnote 5]
Other provisions of the 1934 Act also evince a legislative
desire to preserve values of private journalism under a regulatory
scheme which would insure fulfillment of certain public
obligations. Although the Commission was given the authority to
issue renewable three-year licenses to broadcasters [
Footnote 6] and to promulgate rules and
regulations governing the use of those licenses, [
Footnote 7] both consistent
Page 412 U. S. 110
with the "public convenience, interest, or necessity," § 326 of
the Act specifically provides that:
"Nothing in this chapter shall be understood or construed to
give the Commission the power of censorship over the radio
communications or signals transmitted by any radio station, and no
regulation or condition shall be promulgated or fixed by the
Commission which shall interfere with the right of free speech by
means of radio communication."
47 U.S.C. § 326.
From these provisions, it seems clear that Congress intended to
permit private broadcasting to develop with the widest journalistic
freedom consistent with its public obligations. Only when the
interests of the public are found to outweigh the private
journalistic interests of the broadcasters will government power be
asserted within the framework of the Act. License renewal
proceedings, in which the listening public can be heard, are a
principal means of such regulation.
See Office of Communication
of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359
F.2d 994 (1966), and 138 U.S.App.D.C. 112, 425 F.2d 543 (1969).
Subsequent developments in broadcast regulation illustrate how
this regulatory scheme has evolved. Of particular importance, in
light of Congress' flat refusal to impose a "common carrier" right
of access for all persons wishing to speak out on public issues, is
the Commission's "Fairness Doctrine," which evolved gradually over
the years spanning federal regulation of the broadcast media.
[
Footnote 8] Formulated under
the Commission's power to
Page 412 U. S. 111
issue regulations consistent with the "public interest," the
doctrine imposes two affirmative responsibilities on the
broadcaster: coverage of issues of public importance must be
adequate, and must fairly reflect differing viewpoints.
See Red
Lion, 395 U.S. at
395 U. S. 377.
In fulfilling the Fairness Doctrine obligations, the broadcaster
must provide free time for the presentation of opposing views if a
paid sponsor is unavailable,
Cullman Broadcasting Co., 25
P & F Radio Reg. 895 (1963), and must initiate programming on
public issues if no one else seeks to do so.
See John J.
Dempsey, 6 P & F Radio Reg. 615 (1950);
Red Lion,
supra, at
395 U. S.
378.
Since it is physically impossible to provide time for all
viewpoints, however, the right to exercise editorial judgment was
granted to the broadcaster. The broadcaster, therefore, is allowed
significant journalistic discretion in deciding how best to fulfill
the Fairness Doctrine obligations, [
Footnote 9] although that discretion is bounded by rules
designed to assure that the public interest in fairness is
furthered. In its decision in the instant cases, the Commission
described the boundaries as follows:
"The most basic consideration in this respect is that the
licensee cannot rule off the air coverage of important issues or
views because of his private ends or beliefs. As a public trustee,
he must present
Page 412 U. S. 112
representative community views and voices on controversial
issues which are of importance to his listeners. . . . This means
also that some of the voices must be partisan. A licensee policy of
excluding partisan voices and always itself presenting views in a
bland, inoffensive manner would run counter to the 'profound
national commitment that debate on public issues should be
uninhibited, robust, and wide-open.'
New York Times Co. v.
Sullivan, 376 U. S. 254,
376 U. S.
270 (1964);
see also Red Lion Broadcasting Co., Inc.
v. F.C.C. 395 U. S. 367,
395 U. S.
392 (n. 18) (1969). . . ."
25 F.C.C.2d at 222-223.
Thus, under the Fairness Doctrine broadcasters are responsible
for providing the listening and viewing public with access to a
balanced presentation of information on issues of public
importance. [
Footnote 10]
The basic principle underlying that responsibility is
"the right of the public to be informed, rather than any right
on the part of the
Page 412 U. S. 113
Government, any broadcast licensee or any individual member of
the public to broadcast his own particular views on any matter. . .
."
Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246,
1249 (1949). Consistent with that philosophy, the Commission on
several occasions has ruled that no private individual or group has
a right to command the use of broadcast facilities. [
Footnote 11]
See, e.g., Dowie A.
Crittenden, 18 F.C.C.2d 499 (1969);
Margaret Z.
Scherbina, 21 F.C.C.2d 141 (1969);
Boalt Hall Student
Assn., 20 F.C.C.2d 612 (1969);
Madalyn Murray, 40
F.C.C. 647 (1965);
Democratic State Central Committee of
California, 19 F.C.C.2d 833 (1968);
U.S. Broadcasting
Corp., 2 F.C.C. 208 (1935). Congress has not yet seen fit to
alter that policy, although, since 1934, it has amended the Act on
several occasions [
Footnote
12] and considered various
Page 412 U. S. 114
proposals that would have vested private individuals with a
right of access. [
Footnote
13]
With this background in mind, we next proceed to consider
whether a broadcaster's refusal to accept editorial advertisements
is governmental action violative of the First Amendment.
III
That "Congress shall make no law . . . abridging the freedom of
speech, or of the press" is a restraint on government action, not
that of private persons.
Public Utilities Comm'n v.
Pollak, 343 U. S. 451,
343 U. S. 461
(1952). The Court has not previously considered whether the action
of a broadcast licensee such as that challenged here is
"governmental action" for purposes of the First
Page 412 U. S. 115
Amendment. The holding under review thus presents a novel
question, and one with far-reaching implications.
See
Jaffe, The Editorial Responsibility of the Broadcaster: Reflections
on Fairness and Access, 85 Harv.L.Rev. 768, 782-787 (1972).
The Court of Appeals held that broadcasters are
instrumentalities of the Government for First Amendment purposes,
relying on the thesis, familiar in other contexts, that broadcast
licensees are granted use of part of the public domain and are
regulated as "proxies" or "
fiduciaries' of the people." 146
U.S.App.D.C. at 191, 450 F.2d at 652. These characterizations are
not without validity for some purposes, but they do not resolve the
sensitive constitutional issues inherent in deciding whether a
particular licensee action is subject to First Amendment
restraints. [Footnote
14]
In dealing with the broadcast media, as in other contexts, the
line between private conduct and governmental action cannot be
defined by reference to any general formula unrelated to particular
exercises of governmental authority. When governmental action is
alleged, there must be cautious analysis of the quality and degree
of Government relationship to the particular acts in question.
"Only by sifting facts and weighing circumstances can the
nonobvious involvement of the State in private conduct be
attributed its true significance."
Burton v. Wilmington Parking Authority, 365 U.
S. 715,
365 U. S. 722
(1961).
Page 412 U. S. 116
In deciding whether the First Amendment encompasses the conduct
challenged here, it must be kept in mind that we are dealing with a
vital part of our system of communication. The electronic media
have swiftly become a major factor in the dissemination of ideas
and information. More than 7,000 licensed broadcast stations
undertake to perform this important function. To a large extent,
they share with the printed media the role of keeping people
informed.
As we have seen, with the advent of radio a half century ago,
Congress was faced with a fundamental choice between total
Government ownership and control of the new medium -- the choice of
most other countries -- or some other alternative. Long before the
impact and potential of the medium was realized, Congress opted for
a system of private broadcasters licensed and regulated by
Government. The legislative history suggests that this choice was
influenced not only by traditional attitudes toward private
enterprise, but by a desire to maintain for licensees, so far as
consistent with necessary regulation, a traditional journalistic
role. The historic aversion to censorship led Congress to enact §
326 of the Act, which explicitly prohibits the Commission from
interfering with the exercise of free speech over the broadcast
frequencies. Congress pointedly refrained from divesting
broadcasters of their control over the selection of voices; § 3(h)
of the Act stands as a firm congressional statement that broadcast
licensees are not to be treated as common carriers, obliged to
accept whatever is tendered by members of the public. Both these
provisions clearly manifest the intention of Congress to maintain a
substantial measure of journalistic independence for the broadcast
licensee. [
Footnote 15]
Page 412 U. S. 117
The regulatory scheme evolved slowly, but very early the
licensee's role developed in terms of a "public trustee" charged
with the duty of fairly and impartially informing the public
audience. In this structure, the Commission acts, in essence, as an
"overseer," but the initial and primary responsibility for
fairness, balance, and objectivity rests with the licensee. This
role of the Government as an "overseer" and ultimate arbiter and
guardian of the public interest and the role of the licensee as a
journalistic "free agent" call for a delicate balancing of
competing interests. The maintenance of this balance for more than
40 years has called on both the regulators and the licensees to
walk a "tightrope" to preserve the First Amendment values written
into the Radio Act and its successor, the Communications Act.
The tensions inherent in such a regulatory structure emerge more
clearly when we compare a private newspaper with a broadcast
licensee. The power of a privately owned newspaper to advance its
own political, social, and economic views is bounded by only two
factors: first, the acceptance of a sufficient number of readers --
and hence advertisers -- to assure financial success, and, second,
the journalistic integrity of its editors and publishers. A
broadcast licensee has a large measure of journalistic freedom, but
not as large as that exercised by
Page 412 U. S. 118
a newspaper. A licensee must balance what it might prefer to do
as a private entrepreneur with what it is required to do as a
"public trustee." To perform its statutory duties, the Commission
must oversee without censoring. This suggests something of the
difficulty and delicacy of administering the Communications Act --
a function calling for flexibility and the capacity to adjust and
readjust the regulatory mechanism to meet changing problems and
needs.
The licensee policy challenged in this case is intimately
related to the journalistic role of a licensee for which it has
been given initial and primary responsibility by Congress. The
licensee's policy against accepting editorial advertising cannot be
examined as an abstract proposition, but must be viewed in the
context of its journalistic role. It does not help to press on us
the idea that editorial ads are "like" commercial ads, for the
licensee's policy against editorial spot ads is expressly based on
a journalistic judgment that 10- to 60-second spot announcements
are ill-suited to intelligible and intelligent treatment of public
issues; the broadcaster has chosen to provide a balanced treatment
of controversial questions in a more comprehensive form. Obviously,
the licensee's evaluation is based on its own journalistic judgment
of priorities and newsworthiness.
Moreover, the Commission has not fostered the licensee policy
challenged here; it has simply declined to command particular
action because it fell within the area of journalistic discretion.
The Commission explicitly emphasized that "there is, of course, no
Commission policy thwarting the sale of time to comment on public
issues." 25 F.C.C.2d at 226. The Commission's reasoning, consistent
with nearly 40 years of precedent, is that, so long as a licensee
meets its "public trustee" obligation to provide balanced coverage
of issues and events, it has broad discretion to decide how that
obligation will be
Page 412 U. S. 119
met. We do not reach the question whether the First Amendment or
the Act can be read to preclude the Commission from determining
that in some situations the public interest requires licensees to
reexamine their policies with respect to editorial advertisements.
The Commission has not yet made such a determination; it has, for
the present at least, found the policy to be within the sphere of
journalistic discretion which Congress has left with the
licensee.
Thus, it cannot be said that the Government is a "partner" to
the action of the broadcast licensee complained of here, nor is it
engaged in a "symbiotic relationship" with the licensee, profiting
from the invidious discrimination of its proxy.
Compare Moose
Lodge No. 107 v. Irvis, 407 U. S. 163,
407 U. S.
174-177 (1972),
with Burton v. Wilmington Parking
Authority, 365 U.S. at
365 U. S.
723-724. The First Amendment does not reach acts of
private parties in every instance where the Congress or the
Commission has merely permitted or failed to prohibit such
acts.
Our conclusion is not altered merely because the Commission
rejected the claims of BEM and DNC and concluded that the
challenged licensee policy is not inconsistent with the public
interest. It is true that, in
Public Utilities Comm'n v.
Pollak, 343 U. S. 451
(1952), we found governmental action sufficient to trigger First
Amendment protections on a record involving agency approval of the
conduct of a public utility. Though we held that the decision of a
District of Columbia bus company to install radio receivers in its
public buses was within the reach of the First Amendment, there
Congress had expressly 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 interest standards.
Id.
at
343 U. S.
462.
Page 412 U. S. 120
Here, Congress has not established a regulatory scheme for
broadcast licensees as pervasive as the regulation of public
transportation in
Pollak. More important, as we have
noted, Congress has affirmatively indicated in the Communications
Act that certain journalistic decisions are for the licensee,
subject only to the restrictions imposed by evaluation of its
overall performance under the public interest standard. In
Pollak, there was no suggestion that Congress had
considered worthy of protection the carrier's interest in
exercising discretion over the content of communications forced on
passengers. A more basic distinction, perhaps, between
Pollak and this case is that
Pollak was concerned
with a transportation utility that itself derives no protection
from the First Amendment.
See United States v. Paramount
Pictures, Inc., 334 U. S. 131,
334 U. S. 166
(1948).
Were we to read the First Amendment to spell out governmental
action in the circumstances presented here, few licensee decisions
on the content of broadcasts or the processes of editorial
evaluation would escape constitutional scrutiny. In this sensitive
area, so sweeping a concept of governmental action would go far in
practical effect to undermine nearly a half century of unmistakable
congressional purpose to maintain -- no matter how difficult the
task -- essentially private broadcast journalism held only broadly
accountable to public interest standards. To do this, Congress, and
the Commission as its agent, must remain in a posture of
flexibility to chart a workable "middle course" in its quest to
preserve a balance between the essential public accountability and
the desired private control of the media.
More profoundly, it would be anomalous for us to hold, in the
name of promoting the constitutional guarantees of free expression,
that the day-to-day editorial decisions of broadcast licensees are
subject to the kind of restraints urged by respondents. To do so in
the name
Page 412 U. S. 121
of the First Amendment would be a contradiction. Journalistic
discretion would, in many ways, be lost to the rigid limitations
that the First Amendment imposes on Government. Application of such
standards to broadcast licensees would be antithetical to the very
ideal of vigorous, challenging debate on issues of public interest.
Every licensee is already held accountable for the totality of its
performance of public interest obligations.
The concept of private, independent broadcast journalism,
regulated by Government to assure protection of the public
interest, has evolved slowly and cautiously over more than 40
years, and has been nurtured by processes of adjudication. That
concept of journalistic independence could not coexist with a
reading of the challenged conduct of the licensee as governmental
action. Nor could it exist without administrative flexibility to
meet changing needs and swift technological developments. We
therefore conclude that the policies complained of do not
constitute governmental action violative of the First Amendment.
See McIntire v. William Penn Broadcasting Co., 151 F.2d
597, 601 (CA3 1945),
cert. denied, 327 U.S. 779 (1946);
Massachusetts Universalist Convention v. Hildreth & Rogers
Co., 183 F.2d 497 (CA1 1950);
Post v.
Payton, 323 F.
Supp. 799, 803 (EDNY 1971).
IV
There remains for consideration the question whether the "public
interest" standard of the Communications Act requires broadcasters
to accept editorial advertisements or whether, assuming
governmental action, broadcasters are required to do so by reason
of the First Amendment. In resolving those issues, we are guided by
the
"venerable principle that the construction of a statute by those
charged with its execution should be followed unless there are
compelling indications that it is wrong. . . ."
Red Lion, 395 U.S. at
395 U. S. 381.
Whether
Page 412 U. S. 122
there are "compelling indications" of error in these cases must
be answered by a careful evaluation of the Commission's reasoning
in light of the policies embodied by Congress in the "public
interest" standard of the Act. Many of those policies, as the
legislative history makes clear, were drawn from the First
Amendment itself; the "public interest" standard necessarily
invites reference to First Amendment principles. Thus, the question
before us is whether the various interests in free expression of
the public, the broadcaster, and the individuals require
broadcasters to sell commercial time to persons wishing to discuss
controversial issues. In resolving that issue, it must constantly
be kept in mind that the interest of the public is our foremost
concern. With broadcasting, where the available means of
communication are limited in both space and time, the admonition of
Professor Alexander Meiklejohn that "[w]hat is essential is not
that everyone shall speak, but that everything worth saying shall
be said," is peculiarly appropriate. Political Freedom 26
(1948).
At the outset, we reiterate what was made clear earlier -- that
nothing in the language of the Communications Act or its
legislative history compels a conclusion different from that
reached by the Commission. As we have seen, Congress has time and
again rejected various legislative attempts that would have
mandated a variety of forms of individual access. That is not to
say that Congress' rejection of such proposals must be taken to
mean that Congress is opposed to private rights of access under all
circumstances. Rather, the point is that Congress has chosen to
leave such questions with the Commission, to which it has given the
flexibility to experiment with new ideas as changing conditions
require. In this case, the Commission has decided that, on balance,
the undesirable effects of the right of access urged by respondents
would outweigh the asserted benefits. The Court of
Page 412 U. S. 123
Appeals failed to give due weight to the Commission's judgment
on these matters.
The Commission was justified in concluding that the public
interest in providing access to the marketplace of "ideas and
experiences" would scarcely be served by a system so heavily
weighted in favor of the financially affluent, or those with access
to wealth.
Cf. Red Lion, supra, at
395 U. S. 392.
Even under a first come, first served system proposed by the
dissenting Commissioner in these cases, [
Footnote 16] the views of the affluent could well
prevail over those of others, since they would have it within their
power to purchase time more frequently. Moreover, there is the
substantial danger, as the Court of Appeals acknowledged, 146
U.S.App.D.C. at 203, 450 F.2d at 664, that the time allotted for
editorial advertising could be monopolized by those of one
political persuasion.
These problems would not necessarily be solved by applying the
Fairness Doctrine, including the
Cullman doctrine, to
editorial advertising. If broadcasters were required to provide
time, free when necessary, for the discussion of the various shades
of opinion on the issue discussed in the advertisement, the
affluent could still determine in large part the issues to be
discussed. Thus, the very premise of the Court of Appeals' holding
-- that a right of access is necessary to allow individuals and
groups the opportunity for self-initiated speech -- would have
little meaning to those who could not afford to purchase time in
the first instance. [
Footnote
17]
Page 412 U. S. 124
If the Fairness Doctrine were applied to editorial advertising,
there is also the substantial danger that the effective operation
of that doctrine would be jeopardized. To minimize financial
hardship and to comply fully with its public responsibilities, a
broadcaster might well be forced to make regular programming time
available to those holding a view different from that expressed in
an editorial advertisement; indeed, BEM has suggested as much in
its brief. The result would be a further erosion of the
journalistic discretion of broadcasters in the coverage of public
issues, and a transfer of control over the treatment of public
issues from the licensees, who are accountable for broadcast
performance to private individuals, who are not. The public
interest would no longer be "paramount," but, rather, subordinate
to private whim, especially since, under the Court of Appeals'
decision, a broadcaster would be largely precluded from rejecting
editorial advertisements that dealt with matters trivial or
insignificant or already fairly covered by the broadcaster. 146
U.S.App.D.C. at 196 n. 36, 197, 450 F.2d at 657 n. 36, 658. If the
Fairness Doctrine and the
Cullman doctrine were suspended
to alleviate these problems, as respondents suggest might be
appropriate, the question arises whether we would have abandoned
more than we have gained. Under such a regime, the congressional
objective of balanced coverage of public issues would be seriously
threatened.
Nor can we accept the Court of Appeals' view that every
potential speaker is "the best judge" of what the listening public
ought to hear or indeed the best judge of the merits of his or her
views. All journalistic tradition and experience is to the
contrary. For better or worse, editing is what editors are for, and
editing is selection and choice of material. That editors --
newspaper or broadcast -- can and do abuse this power is beyond
doubt, but that is no reason to deny the discretion Congress
Page 412 U. S. 125
provided. Calculated risks of abuse are taken in order to
preserve higher values. The presence of these risks is nothing new;
the authors of the Bill of Rights accepted the reality that these
risks were evils for which there was no acceptable remedy other
than a spirit of moderation and a sense of responsibility -- and
civility -- on the part of those who exercise the guaranteed
freedoms of expression.
It was reasonable for Congress to conclude that the public
interest in being informed requires periodic accountability on the
part of those who are entrusted with the use of broadcast
frequencies, scarce as they are. In the delicate balancing
historically followed in the regulation of broadcasting, Congress
and the Commission could appropriately conclude that the allocation
of journalistic priorities should be concentrated in the licensee,
rather than diffused among many. This policy gives the public some
assurance that the broadcaster will be answerable if he fails to
meet its legitimate needs. No such accountability attaches to the
private individual, whose only qualifications for using the
broadcast facility may be abundant funds and a point of view. To
agree that debate on public issues should be "robust, and
wide-open" does not mean that we should exchange "public trustee"
broadcasting, with all its limitations, for a system of
self-appointed editorial commentators.
The Court of Appeals discounted those difficulties by stressing
that it was merely mandating a "modest reform," requiring only that
broadcasters be required to accept some editorial advertising. 146
U.S.App.D.C. at 202, 450 F.2d at 663. The court suggested that
broadcasters could place an "outside limit on the total amount of
editorial advertising they will sell," and that the Commission and
the broadcasters could develop "
reasonable regulations'
designed to prevent domination by a few groups or a few
viewpoints." Id. at 202,
Page 412 U. S. 126
203, 450 F.2d at 663, 664. If the Commission decided to apply
the Fairness Doctrine to editorial advertisements, and, as a
result, broadcasters suffered financial harm, the court thought the
"Commission could make necessary adjustments."
Id. at 203,
450 F.2d at 664. Thus, without providing any specific answers to
the substantial objections raised by the Commission and the
broadcasters, other than to express repeatedly its "confidence" in
the Commission's ability to overcome any difficulties, the court
remanded the cases to the Commission for the development of
regulations to implement a constitutional right of access.
By minimizing the difficult problems involved in implementing
such a right of access, the Court of Appeals failed to come to
grips with another problem of critical importance to broadcast
regulation and the First Amendment -- the risk of an enlargement of
Government control over the content of broadcast discussion of
public issues.
See, e.g., Fowler v. Rhode Island,
345 U. S. 67
(1953);
Niemotko v. Maryland, 340 U.
S. 268 (1951). This risk is inherent in the Court of
Appeals' remand requiring regulations and procedures to sort out
requests to be heard -- a process involving the very editing that
licensees now perform as to regular programming. Although the use
of a public resource by the broadcast media permits a limited
degree of Government surveillance, as is not true with respect to
private media,
see National Broadcasting Co. v. United
States, 319 U.S. at
319 U. S.
216-219, the Government's power over licensees, as we
have noted, is by no means absolute, and is carefully circumscribed
by the Act itself. [
Footnote
18]
Under a constitutionally commanded and Government supervised
right-of-access system urged by respondents and mandated by the
Court of Appeals, the Commission
Page 412 U. S. 127
would be required to oversee far more of the day-to-day
operations of broadcasters' conduct, deciding such questions as
whether a particular individual or group has had sufficient
opportunity to present its viewpoint and whether a particular
viewpoint has already been sufficiently aired. Regimenting
broadcasters is too radical a therapy for the ailment respondents
complain of.
Under the Fairness Doctrine the Commission's responsibility is
to judge whether a licensee's overall performance indicates a
sustained good faith effort to meet the public interest in being
fully and fairly informed. [
Footnote 19] The Commission's responsibilities under a
right-of-access system would tend to draw it into a continuing
case-by-case determination of who should be heard and when. Indeed,
the likelihood of Government involvement is so great that it has
been suggested that the accepted constitutional principles against
control of speech content would need to be relaxed with respect to
editorial advertisements. [
Footnote 20] To sacrifice First Amendment protections for
so speculative a gain is not warranted, and it was well within the
Commission's discretion to construe the Act so as to avoid such a
result. [
Footnote 21]
The Commission is also entitled to take into account the reality
that, in a very real sense, listeners and viewers constitute a
"captive audience."
Cf. Public Utilities Comm'n v. Pollak,
343 U.S. at
343 U. S. 463;
Kovacs v. Cooper, 336 U. S. 77
(1949). The "captive" nature of the broadcast audience was
recognized as early as 1924,
Page 412 U. S. 128
when Commerce Secretary Hoover remarked at the Fourth National
Radio Conference that
"the radio listener does not have the same option that the
reader of publications has -- to ignore advertising in which he is
not interested -- and he may resent its invasion of his set.
[
Footnote 22]"
As the broadcast media became more pervasive in our society, the
problem has become more acute. In a recent decision upholding the
Commission's power to promulgate rules regarding cigarette
advertising, Judge Bazelon, writing for a unanimous Court of
Appeals, noted some of the effects of the ubiquitous
commercial:
"Written messages are not communicated unless they are read, and
reading requires an affirmative act. Broadcast messages, in
contrast, are 'in the air.' In an age of omnipresent radio, there
scarcely breathes a citizen who does not know some part of a
leading cigarette jingle by heart. Similarly, an ordinary habitual
television watcher can avoid these commercials only by frequently
leaving the room, changing the channel, or doing some other such
affirmative act. It is difficult to calculate the subliminal impact
of this pervasive propaganda, which may be heard even if not
listened to, but it may reasonably be thought greater than the
impact of the written word."
Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32-33, 405 F.2d
1082, 1100-1101 (1968),
cert. denied, 396 U.S. 842 (1969).
It is no answer to say that, because we tolerate pervasive
commercial advertisements, we can also live with its political
counterparts.
The rationale for the Court of Appeals' decision imposing a
constitutional right of access on the broadcast media was that the
licensee impermissibly discriminates
Page 412 U. S. 129
by accepting commercial advertisements while refusing editorial
advertisements. The court relied on decisions holding that state
supported school newspapers and public transit companies were
prohibited by the First Amendment from excluding controversial
editorial advertisements in favor of commercial advertisements.
[
Footnote 23] The court also
attempted to analogize this case to some of our decisions holding
that States may not constitutionally ban certain protected speech
while at the same time permitting other speech in public areas.
Cox v. Louisiana, 379 U. S. 536
(1965);
Fowler v. Rhode Island, 345 U. S.
67 (1953);
Niemotko v. Maryland, 340 U.
S. 268 (1951). This theme of "invidious discrimination"
against protected speech is echoed in the briefs of BEM and DNC to
this Court. Respondents also rely on our recent decisions in
Grayned v. City of Rockford, 408 U.
S. 104 (1972), and
Police Dept. of Chicago v.
Mosley, 408 U. S. 92
(1972), where we held unconstitutional city ordinances that
permitted "peaceful picketing of any school involved in a labor
dispute,"
id. at
408 U. S. 93,
but prohibited demonstrations for any other purposes on the streets
and sidewalks within 150 feet of the school.
Those decisions provide little guidance, however, in resolving
the question whether the First Amendment requires the Commission to
mandate a private right of access to the broadcast media. In none
of those cases did the forum sought for expression have an
affirmative and independent statutory obligation to provide full
and fair coverage of public issues, such as Congress has imposed
on
Page 412 U. S. 130
all broadcast licensees. In short, there is no "discrimination"
against controversial speech present in this case. The question
here is not whether there is to be discussion of controversial
issues of public importance on the broadcast media, but rather who
shall determine what issues are to be discussed by whom, and
when.
The opinion of the Court of Appeals asserted that the Fairness
Doctrine, insofar as it allows broadcasters to exercise certain
journalistic judgments over the discussion of public issues, is
inadequate to meet the public's interest in being informed. The
present system, the court held,
"conforms . . . to a paternalistic structure in which licensees
and bureaucrats decide what issues are 'important,' and how 'fully'
to cover them, and the format, time and style of the coverage."
146 U.S.App.D.C. at 195, 450 F.2d at 656. The forced sale of
advertising time for editorial spot announcements would, according
to the Court of Appeals majority, remedy this deficiency. That
conclusion was premised on the notion that advertising time, as
opposed to programming time, involves a "special and separate mode
of expression" because advertising content, unlike programming
content, is generally prepared and edited by the advertiser. Thus,
that court concluded, a broadcaster's policy against using
advertising time for editorial messages "may well ignore
opportunities to enliven and enrich the public's overall
information."
Id. at 197, 450 F.2d at 658. The Court of
Appeals' holding would serve to transfer a large share of
responsibility for balanced broadcasting from an identifiable,
regulated entity -- the licensee -- to unregulated speakers who
could afford the cost.
We reject the suggestion that the Fairness Doctrine permits
broadcasters to preside over a "paternalistic" regime.
See Red
Lion, 395 U.S. at
395 U. S. 390.
That doctrine admittedly has not always brought to the public
perfect or, indeed, even consistently high-quality treatment of
all
Page 412 U. S. 131
public events and issues; but the remedy does not lie in
diluting licensee responsibility. The Commission stressed that,
while the licensee has discretion in fulfilling its obligations
under the Fairness Doctrine, it is required to "present
representative community views and voices on controversial issues
which are of importance to [its] listeners," and it is prohibited
from "excluding partisan voices and always itself presenting views
in a bland, inoffensive manner. . . ." 25 F.C.C.2d at 222. A
broadcaster neglects that obligation only at the risk of losing his
license.
Conceivably, at some future date, Congress or the Commission --
or the broadcasters -- may devise some kind of limited right of
access that is both practicable and desirable. Indeed, the
Commission noted in these proceedings that the advent of cable
television will afford increased opportunities for the discussion
of public issues. In its proposed rules on cable television, the
Commission has provided that cable systems in major television
markets
"shall maintain at least one specially designated, noncommercial
public access channel available on a first-come, nondiscriminatory
basis. The system shall maintain and have available for public use
at least the minimal equipment and facilities necessary for the
production of programming for such a channel."
37 Fed Reg. 3289, § 76.251(a)(4).
For the present, the Commission is conducting a wide-ranging
study into the effectiveness of the Fairness Doctrine to see what
needs to be done to improve the coverage and presentation of public
issues on the broadcast media. Notice of Inquiry in Docket 19260,
30 F.C.C.2d 26, 36 Fed.Reg. 11825. Among other things, the study
will attempt to determine whether "there is any feasible method of
providing access for discussion of public issues
Page 412 U. S. 132
outside the requirements of the fairness doctrine." 30 F.C.C.2d
at 33. The Commission made it clear, however, that it does not
intend to discard the Fairness Doctrine or to require broadcasters
to accept all private demands for air time. [
Footnote 24] The Commission's inquiry on this
score was announced prior to the decision of the Court of Appeals
in this case, and hearings are under way.
The problems perceived by the Court of Appeals majority are by
no means new; as we have seen, the history of the Communications
Act and the activities of the Commission over a period of 40 years
reflect a continuing search for means to achieve reasonable
regulation compatible with the First Amendment rights of the public
and the licensees. The Commission's pending hearings are but one
step in this continuing process. At the very least, courts should
not freeze this necessarily dynamic process into a constitutional
holding.
See American Commercial Lines, Inc. v. Louisville
& N. R. Co., 392 U. S. 571,
392 U. S.
590-593 (1968).
The judgment of the Court of Appeals is
Reversed.
* Together with Nos. 71-864,
Federal Communications
Commission et al. v. Business Executives' Move for Vietnam Peace et
al.; 71865,
Post-Newsweek Stations, Capital Area, Inc. v.
Business Executives' Move for Vietnam Peace; and 71-866,
American Broadcasting Cos., Inc. v. Democratic National
Committee, also on certiorari to the same court.
[
Footnote 1]
The Commission's rulings against BEM's Fairness Doctrine
complaint and in favor of DNC's claim that political parties should
be permitted to purchase air time for solicitation of funds were
not appealed to the Court of Appeals, and are not before us
here.
[
Footnote 2]
Congressman Davis, for example, stated on the floor of the House
the view that Congress found unacceptable:
"I do not think any member of the committee will deny that it is
absolutely inevitable that we are going to have to regulate the
radio public utilities, just as we regulate other public utilities.
We are going to have to regulate the rates and the service, and to
force them to give equal service and equal treatment to all."
67 Cong.Rec. 5483 (1926).
See also id. at 5484.
[
Footnote 3]
Section 315(a) now reads:
"If any licensee shall permit any person who is a legally
qualified candidate for any public office to use a broadcasting
station, he shall afford equal opportunities to all other such
candidates for that office in the use of such broadcasting station:
Provided, That such licensee shall have no power of
censorship over the material broadcast under the provisions of this
section. No obligation is imposed under this subsection upon any
licensee to allow the use of its station by any such candidate.
Appearance by a legally qualified candidate on any -- "
"(1) bona fide newscast,"
"(2) bona fide news interview,"
"(3) bona fide news documentary (if the appearance of the
candidate is incidental to the presentation of the subject or
subjects covered by the news documentary), or"
"(4) on-the-spot coverage of bona fide news events (including
but not limited to political conventions and activities incidental
thereto),"
"shall not be deemed to be use of a broadcasting station within
the meaning of this subsection. Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with
the presentation of newscasts, news interviews, news documentaries,
and on-the-spot coverage of news events, from the obligation
imposed upon them under this chapter to operate in the public
interest and to afford reasonable opportunity for the discussion of
conflicting views on issues of public importance."
47 U.S.C. § 315(a).
[
Footnote 4]
The Senate passed a provision stating that:
"[I]f any licensee shall permit any person to use a broadcasting
station in support of or in opposition to any candidate for public
office,
or in the presentation of views on a public question to
be voted upon at an election, he shall afford equal opportunity to
an equal number of other persons to use such station in
support of an opposing candidate for such public office, or to
reply to a person who has used such broadcasting station in support
of or in opposition to a candidate,
or for the presentation of
opposite views to such public questions."
See Hearings on S. 2910 before the Senate Committee on
Interstate Commerce, 73d Cong., 2d Sess., 19 (1934) (emphasis
added). The provision for discussion of public issues was deleted
by the House-Senate Conference.
See H.R.Conf.Rep. No.1918
on S. 3285, 73d Cong., 2d Sess., 49.
Also noteworthy are two bills offered in 1934 that would have
restricted the control of broadcasters over the discussion of
certain issues. Congressman McFadden proposed a bill that would
have forbidden broadcasters to discriminate against programs
sponsored by religious, charitable, or educational associations.
H.R. 798, 73d Cong., 2d Sess. The bill was not reported out of
committee. And, during the debates on the 1934 Act, Senators Wagner
and Hatfield offered an amendment that would have ordered the
Commission to
"reserve and allocate only to educational, religious,
agricultural, labor, cooperative, and similar non-profitmaking
associations one-fourth of all the radio broadcasting facilities
within its jurisdiction."
78 Cong.Rec. 8828. Senator Dill explained why the Committee had
rejected the proposed amendment, indicating that the practical
difficulties and the dangers of censorship were crucial:
"MR. DILL. . . . If we should provide that 25 percent of time
shall be allocated to nonprofit organizations, someone would have
to determine -- Congress or somebody else -- how much of the 25
percent should go to education, how much of it to religion, and how
much of it to agriculture, how much of it to labor, how much of it
to fraternal organizations, and so forth. When we enter this field,
we must determine how much to give to the Catholics probably and
how much to the Protestants and how much to the Jews."
78 Cong.Rec. 8843. Senator Dill went on to say that the problem
of determining the proper allocation of time for discussion of
these subjects should be worked out by the Commission.
Id.
at 8844. The Senate rejected the amendment.
Id. at
8846.
[
Footnote 5]
Section 3(h) provides as follows:
"'Common carrier' or 'carrier' means any person engaged as a
common carrier for hire, in interstate or foreign communication by
wire or radio or in interstate or foreign radio transmission of
energy, except where reference is made to common carriers not
subject to this chapter; but a person engaged in radio broadcasting
shall not, insofar as such person is so engaged, be deemed a common
carrier."
48 Stat. 1066, as amended, 47 U.S.C. § 153(h)
[
Footnote 6]
48 Stat. 1083, as amended, 47 U.S.C. § 307.
[
Footnote 7]
Section 303, 48 Stat. 1082, as amended, 47 U.S.C. § 303,
provides in relevant part:
"Except as otherwise provided in this chapter, the Commission
from time to time, as public convenience, interest, or necessity
requires, shall --"
"
* * * *"
"(b) Prescribe the nature of the service to be rendered by each
class of licensed stations and each station within any class;"
"
* * * *"
"(r) Make such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as may be
necessary to carry out the provisions of this chapter. . . ."
[
Footnote 8]
In 1959, Congress amended § 315 of the Act to give statutory
approval to the Fairness Doctrine. Act of Sept. 14, 1959, § 1, 73
Stat. 557, 47 U.S.C. § 315(a).
For a summary of the development and nature of the Fairness
Doctrine,
see Red Lion Broadcasting Co. v. FCC,
395 U. S. 367,
395 U. S.
375-386 (1969).
[
Footnote 9]
See Madalyn Murray, 5 P & F Radio Reg.2d 263
(1965). Factors that the broadcaster must take into account in
exercising his discretion include the following:
"In determining whether to honor specific requests for time, the
station will inevitably be confronted with such questions as
whether the subject is worth considering, whether the viewpoint of
the requesting party has already received a sufficient amount of
broadcast time, or whether there may not be other available groups
or individuals who might be more appropriate spokesmen for the
particular point of view than the person [or group] making the
request."
Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246,
1251-1252 (1949).
[
Footnote 10]
The Commission has also adopted various component regulations
under the Fairness Doctrine, the most notable of which are the
"personal attack" and "political editorializing" rules which we
upheld in
Red Lion. The "personal attack" rule provides
that
"[w]hen, during the presentation of views on a controversial
issue of public importance, an attack is made upon the honesty,
character, integrity or like personal qualities of an identified
person,"
the licensee must notify the person attacked and give him an
opportunity to respond.
E.g., 47 CFR § 73.123. Similarly,
the "political editorializing" rule provides that, when a licensee
endorses a political candidate in an editorial, he must give other
candidates or their spokesmen an opportunity to respond.
E.g.,
id., § 73.123.
The Commission, of course, has taken other steps beyond the
Fairness Doctrine to expand the diversity of expression on radio
and television. The chain broadcasting and multiple ownership rules
are established examples.
E.g., id., §§ 73.131, 73.240.
More recently, the Commission promulgated rules limiting television
network syndication practices and reserving 25% of prime time for
non-network programs.
Id. §§ 73.658(j), (k).
[
Footnote 11]
The Court of Appeals, respondents, and the dissent in this case
have relied on dictum in
United Broadcasting Co., 10
F.C.C. 515 (1945), as illustrating Commission approval of a private
right to purchase air time for the discussion of controversial
issues. In that case, the complaint alleged not only that the
station had a policy of refusing to sell time for the discussion of
public issues, but also that the station had applied its policy in
a discriminatory manner, a factor not shown in the cases presently
before us. Furthermore, the decision was handed down four years
before the Commission had fully developed and articulated the
Fairness Doctrine.
See Report on Editorializing by Broadcast
Licensees, 13 F.C.C. 1246 (1949). Thus, even if the decision
is read without reference to the allegation of discrimination, it
stands as merely an isolated statement, made during the period in
which the Commission was still working out the problems associated
with the discussion of public issues; the dictum has not been
followed since, and has been modified by the Fairness Doctrine.
[
Footnote 12]
In 1959, as noted earlier, Congress amended § 315(a) of the Act
to give statutory approval to the Commission's Fairness
Doctrine.Act of Sept. 14, 1959, § 1, 73 Stat. 557, 47 U.S.C. §
315(a). Very recently, Congress amended § 312(a) of the 1934 Act to
authorize the Commission to revoke a station license
"for willful or repeated failure to allow reasonable access to
or to permit purchase of reasonable amounts of time for the use of
a broadcasting station by a legally qualified candidate for Federal
elective office on behalf of his candidacy."
Campaign Communications Reform Act of 1972, Pub.L. 92-225, 86
Stat. 4. This amendment essentially codified the Commission's prior
interpretation of § 315(a) as requiring broadcasters to make time
available to political candidates.
Farmers Union v. WDAY,
360 U. S. 525,
360 U. S. 534
(1959).
See FCC Memorandum on Second Sentence of Section
315(a), in Political Broadcasts -- Equal Time, Hearings before
Subcommittee of the House Committee on Interstate and Foreign
Commerce, 88th Cong., 1st Sess., on H.J.Res. 247, pp. 84-90.
[
Footnote 13]
See, e.g., H.R. 3595, 80th Cong., 1st Sess. (1947). A
more recent proposal was offered by Senator Fulbright. His bill
would have amended § 315 of the Act to provide:
"(d) Licensees shall provide a reasonable amount of public
service time to authorized representatives of the Senate of the
United States, and the House of Representatives of the United
States, to present the views of the Senate and the House of
Representatives on issues of public importance. The public service
time required to be provided under this subsection shall be made
available to each such authorized representative at least, but not
limited to, four times during each calendar year."
S.J.Res. 209, 91st Cong., 2d Sess. (1970).
[
Footnote 14]
The dissent offers the same analysis as the Court of Appeals. As
one distinguished commentator has recognized, this line of
reasoning "stretch[es] the concept of state action very far."
Jaffe, The Editorial Responsibility of the Broadcaster: Reflections
on Fairness and Access, 85 Harv.L.Rev. 768, 784 (1972). The notion
that broadcasters are engaged in "governmental action" because they
are licensed to utilize the "public" frequencies and because they
are regulated is superficially appealing but, as Professor Jaffe
observes, "not entirely satisfactory."
Id. at 783.
[
Footnote 15]
The dissenting view would appear to "want to have it both ways"
on the question of Government control of the broadcast media. In
finding governmental action, the dissent stresses what is perceived
as an "elaborate statutory scheme governing virtually all aspects
of the broadcast industry." "Indeed," the dissent suggests,
"federal agency review and guidance of broadcaster conduct is
automatic, continuing, and pervasive."
Post at
412 U. S.
176-177. Yet later in the dissent, when discussing the
constitutional need for a right of access, the dissent objects to
the substantial independence afforded broadcasters in covering
issues of public importance. Thus, it is said that
"broadcasters retain almost exclusive control over the selection
of issues and viewpoints to be covered, the manner of presentation
and, perhaps most important, who shall speak."
Post at
412 U. S.
187.
[
Footnote 16]
See 25 F.C.C.2d 216, 230, 23235 (Johnson,
dissenting).
[
Footnote 17]
To overcome this inconsistency, it has been suggested that a
"submarket rate system" be established for those unable to afford
the normal cost for air time.
See Note, 85 Harv.L.Rev.
689, 695-696 (1972). That proposal has been criticized, we think
justifiably, as raising "incredible administrative problems."
Jaffe, The Editorial Responsibility of the Broadcaster: Reflections
on Fairness and Access, 85 Harv.L.Rev. 768, 789 (1972).
[
Footnote 18]
See n 8,
supra.
[
Footnote 19]
See Report on Editorializing by Broadcast Licensees, 13
F.C.C. at 1251-1252.
[
Footnote 20]
See Note, 85 Harv.L.Rev. 689, 697 (1973).
[
Footnote 21]
DNC has urged in this Court that we at least recognize a right
of our national parties to purchase air time for the purpose of
discussing public issues. We see no principled means under the
First Amendment of favoring access by organized political parties
over other groups and individuals.
[
Footnote 22]
Reprinted in Hearings before the Senate Committee on Interstate
Commerce on Radio Control, 69th Cong., 1st Sess., 54 (1926).
[
Footnote 23]
Lee v. Board of Regents of State
Colleges, 306 F.
Supp. 1097 (WD Wis.1969),
aff'd, 441 F.2d 1257 (CA7
1971);
Zucker v. Panitz, 299 F.
Supp. 102 (SDNY 1969);
Kissinger v. New York City Transit
Authority, 274 F.
Supp. 438 (SDNY 1967);
Hillside Community Church, Inc. v.
City of Taxoma, 76 Wash. 2d
63,
455 P.2d
350 (1969);
Wirta v. Alameda-Contra Costa Transit
District, 68 Cal. 2d 51,
434 P.2d 982 (1967).
[
Footnote 24]
Subsequent to the announcement of the Court of Appeals'
decision, the Commission expanded the scope of the inquiry to
comply with the Court of Appeals' mandate. Further Notice of
Inquiry in Docket 19260, 33 F.C.C.2d 554, 37 Fed.Reg. 3383. After
we granted certiorari and stayed the mandate of the Court of
Appeals, the Commission withdrew that notice of an expanded inquiry
and continued its study as originally planned. Order and Further
Notice of Inquiry in Docket 19260, 33 F.C.C.2d 798, 37 Fed.Reg.
4980.
MR. JUSTICE STEWART, concurring.
While I join Parts I and II of the Court's opinion, and the
opinion in Part III, my views closely approach those expressed by
MR. JUSTICE DOUGLAS concurring in the judgment.
Page 412 U. S. 133
The First Amendment prohibits the Government from imposing
controls upon the press. [
Footnote
2/1] Private broadcasters are surely part of the press.
United States v. Paramount Pictures, Inc., 334 U.
S. 131,
334 U. S. 166.
Yet here the Court of Appeals held, and the dissenters today agree,
that the First Amendment requires the Government to impose controls
upon private broadcasters -- in order to preserve First Amendment
"values." The appellate court accomplished this strange convolution
by the simple device of holding that private broadcasters are
Government. This is a step along a path that could eventually lead
to the proposition that private newspapers "are" Government.
Freedom of the press would then be gone. In its place, we would
have such governmental controls upon the press as a majority of
this Court at any particular moment might consider First Amendment
"values" to require. It is a frightening specter.
I
There is some first-blush appeal in seeking out analogies from
areas of the law where governmental involvement on the part of
otherwise private parties has led the Court to hold that certain
activities of those parties were tantamount to governmental action.
[
Footnote 2/2] The evolution of the
"state action" concept under the Fourteenth Amendment is one
available analogy. [
Footnote 2/3]
Another is the decision of this
Page 412 U. S. 134
Court in
Public Utilities Comm'n v. Pollak,
343 U. S. 451,
where a policy of a privately owned but publicly regulated bus
company that had been approved by the regulatory commission was
held to activate First Amendment review. The First Amendment has
also been held applicable where private parties control essentially
public forums.
Amalgamated Food Employees v. Logan Valley
Plaza, 391 U. S. 308,
Marsh v. Alabama, 326 U. S. 501;
cf. Lloyd Corp. v. Tanner, 407 U.
S. 551.
The problem before us, however, is too complex to admit of
solution by simply analogizing to cases in very different areas.
For we deal here with the electronic press, that is itself
protected from Government by the First Amendment. [
Footnote 2/4] Before woodenly accepting analogies
from cases dealing with
quasi-public racial
discrimination, regulated industries other than the press, or
"company towns," we must look more closely at the structure of
broadcasting and the limits of governmental regulation of
licensees.
When Congress enacted the Radio Act of 127, 44 Stat. 1162, and
followed it with the Federal Communications Act of 1934, 48 Stat.
1064, 47 U.S.C. § 151 et seq., it was responding to a then-evident
need to regulate access to the public airwaves. Not every member of
the public could broadcast over the air as he chose, since the
scarcity
Page 412 U. S. 135
of frequencies made this a sure road to chaos. [
Footnote 2/5] The system selected by the Congress
was a hybrid. The Federal Radio Commission (succeeded by the
Federal Communications Commission), was to license broadcasters for
no more than three-year periods. 47 U.S.C. § 307(d). The licensees,
though subject to some public regulation, were to be private
companies.
Scarcity meant more than a need to limit access. Because access
was to be limited, it was thought necessary for the regulatory
apparatus to take into account the public interest in obtaining
"the best practicable service to the community reached by his [the
licensee's] broadcasts."
FCC v. Sanders Brothers Radio
Station, 309 U. S. 470,
309 U. S. 475.
Public regulation has not, then, been merely a matter of
electromagnetic engineering for the sake of keeping signals clear.
It has also included some regulation of programming. Writing in
defense of Commission regulations regarding chain broadcasting, Mr.
Justice Frankfurter said:
"These provisions [of the Act], individually and in the
aggregate, preclude the notion that the Commission is empowered to
deal only with technical and engineering impediments to the 'larger
and more effective use of radio in the public interest.'"
National Broadcasting Co. v. United States,
319 U. S. 190,
319 U. S.
217.
Over time, federal regulation of broadcasting in the public
interest has been extensive, and,
pro tanto, has rightly
or wrongly been held to be tolerable under the First Amendment. We
now have the Fairness Doctrine, with its personal attack, editorial
reply, and "fair coverage of controversial issue" requirements.
[
Footnote 2/6] In
Red Lion
Broadcasting
Page 412 U. S. 136
Co. v. FCC, 395 U. S. 367,
this Doctrine was held to constitute permissible governmental
regulation of broadcasters, despite the First Amendment. The Court
said:
"Where there are substantially more individuals who want to
broadcast than there are frequencies to allocate, it is idle to
posit an unabridgeable First Amendment right to broadcast
comparable to the right of every individual to speak, write, or
publish."
"
* * * *"
". . . Because of the scarcity of radio frequencies, the
Government is permitted to put restraints on licensees in favor of
others whose views should be expressed on this unique medium. But
the people as a whole retain their interest in free speech by radio
and their collective right to have the medium function consistently
with the ends and purposes of the First Amendment. It is the right
of the viewers and listeners, not the right of the broadcasters,
which is paramount."
Id. at
395 U. S. 388,
395 U. S. 390.
The Fairness Doctrine has been held applicable to paid advertising,
as well as to other programming,
Banzhaf v. FCC, 132
U.S.App.D.C. 14, 405 F.2d 1082. And the public interest in
broadcasting has been recognized as a rationale for liberalized
standing on the part of listener
Page 412 U. S. 137
groups in Commission licensing proceedings.
Office of
Communication of United Church of Christ v. FCC, 123
U.S.App.D.C. 328, 359 F.2d 994.
Throughout this long history of regulation, however, it has been
recognized that broadcasters retain important freedoms, and that
the Commission's regulatory power has limits. Quite apart from what
may be required by the First Amendment itself, the regulatory
legislation makes clear what some of these freedoms are. Section
3(h) of the Act, 47 U.S.C. § 153(h), provides that broadcasters are
not to be treated as common carriers. Were broadcasters common
carriers within the meaning of the Act, they would be subject to 47
U.S.C. §§ 201, 202. Section 201 provides, in pertinent part,
that:
"(a) It shall be the duty of every common carrier engaged in
interstate or foreign communication by wire or radio to furnish
such communication service upon reasonable request therefor. . .
."
Section 202 provides that:
"(a) It shall be unlawful for any common carrier to make any
unjust or unreasonable discrimination in charges, practices,
classifications, regulations, facilities, or services for or in
connection with like communication service, directly or indirectly,
by any means or device, or to make or give any undue or
unreasonable preference or advantage to any particular person,
class of persons, or locality, or to subject any particular person,
class of persons, or locality to any undue or unreasonable
prejudice or disadvantage."
The Act also specifically gives licensees "freedom of
speech":
"Nothing in this chapter shall be understood or construed to
give the Commission the power of censorship over the radio
communications or signals
Page 412 U. S. 138
transmitted by any radio station, and no regulation or condition
shall be promulgated or fixed by the Commission which shall
interfere with the right of free speech by means of radio
communication."
47 U.S.C. § 326.
Thus, when examined as a whole, the Federal Communications Act
establishes a system of privately owned broadcast licensees. These
licensees, though regulated by the Commission under a fairly broad
"public interest" standard, have, quite apart from whatever
additional protections the First Amendment may provide, important
statutory freedoms in conducting their programming.
In
Red Lion, supra, this Court held that, despite the
First Amendment, the Commission may impose a so-called Fairness
Doctrine upon broadcasters, requiring them to present balanced
coverage of various and conflicting views on issues of public
importance. I agreed with the Court in
Red Lion, although
with considerable doubt, because I thought that that much
Government regulation of program content was within the outer
limits of First Amendment tolerability. Were the Commission to
require broadcasters to accept some amount of editorial advertising
as part of the public interest mandate upon which their licenses
are conditional, the issue before us would be in the same posture
as was the Fairness Doctrine itself in
Red Lion, and we
would have to determine whether this additional governmental
control of broadcasters was consistent with the statute and
tolerable under the First Amendment. Here, however, the Commission
imposed no such requirement, but left private broadcasters free to
accept or reject such advertising as they saw fit. The Court of
Appeals held that the First Amendment compels the Commission to
require broadcasters to accept such advertising, because it equated
broadcaster action with governmental action.
Page 412 U. S. 139
This holding not only raises a serious statutory question under
§ 3(h) of the Act, which provides that broadcasters are not common
carriers, but seems to me to reflect an extraordinarily odd view of
the First Amendment.
The dissenting opinion today argues, in support of the decision
of the Court of Appeals, that only a limited right of access is
sought by the respondents and required by the First Amendment, and
that such a limited right would not turn broadcasters into common
carriers. The respondents argue, somewhat differently, that the
Constitution requires that only "responsible" individuals and
groups be given the right to purchase advertising. These positions
are said to be arrived at by somehow balancing "competing First
Amendment values." But if private broadcasters are Government, how
can the First Amendment give only a limited right to those who
would speak? Since when has the First Amendment given Government
the right to silence all speakers it does not consider
"responsible?"
The First Amendment protects the press from governmental
interference; it confers no analogous protection on the Government.
[
Footnote 2/7] To hold that
broadcaster action is governmental action would thus simply strip
broadcasters of their own First Amendment rights. They would be
obligated to grant the demands of all citizens to be heard over the
air, subject only to reasonable regulations as to "time, place and
manner."
Cf. Police Dept. of Chicago v. Mosley,
408 U. S. 92,
408 U. S. 98;
Cox v.
Louisiana,
Page 412 U. S. 140
379 U. S. 536,5
379 U. S. 54;
Polos v. New Hampshire, 345 U. S. 395;
Cox v. New Hampshire, 312 U. S. 569. If,
as the dissent today would have it, the proper analogy is to public
forums [
Footnote 2/8] -- that is,
if broadcasters are Government for First Amendment purposes -- then
broadcasters are inevitably drawn to the position of common
carriers. For this is precisely the status of Government with
respect to public forums -- a status mandated by the First
Amendment. [
Footnote 2/9]
To hold that broadcaster action is governmental action would
thus produce a result wholly inimical to the broadcasters' own
First Amendment rights, and wholly at odds with the broadcasting
system established by Congress and with our many decisions
[
Footnote 2/10] approving those
legislative
Page 412 U. S. 141
provisions. [
Footnote 2/11] As
Judge McGowan wrote, dissenting from the judgment of the Court of
Appeals in these cases,
"This is the system which Congress has, wisely or not, provided
as the alternative to public ownership and operation of radio and
television communications facilities. This approach has never been
thought to be other than within the permissible limits of
constitutional choice."
146 U.S.App. D, C. 181, 205, 450 F.2d 642, 666.
II
412 U. S. as I
understand it, seems primarily to deal with the respondents'
statutory argument -- that the obligation of broadcasters to
operate in the "public interest" supports the judgment of the Court
of Appeals. Yet two of my concurring Brethren understand Part IV as
a discussion of the First Amendment issue that would exist in these
cases were the action of broadcasters to be equated with
governmental action. So, according to my Brother BLACKMUN, "the
governmental action issue does not affect the outcome of this
case."
Post at
412 U.S.
148. The Court of Appeals also conflated the constitutional
and statutory issues in these cases. It reasoned that whether its
decision
"is styled as a 'First Amendment decision' or as a decision
interpreting the fairness and public interest requirements 'in
light of the First Amendment' matters little."
146 U.S.App.D.C. at 188, 450 F.2d at 649.
Page 412 U. S. 142
I find this reasoning quite wrong, and wholly disagree with it
for the simple reason that the First Amendment and the public
interest standard of the statute are not coextensive. The two are
related in the sense that the Commission could not, "in the public
interest," place a requirement on broadcasters that constituted a
violation of their First Amendment rights. The two are also related
in the sense that both foster free speech. But we have held that
the Commission can, under the statute, require broadcasters to do
certain things "in the public interest" that the First Amendment
would not require if the broadcasters were the Government. For
example, the Fairness Doctrine is an aspect of the "public
interest" regulation of broadcasters that would not be compelled,
or even permitted, by the First Amendment itself if broadcasters
were the Government. [
Footnote
2/12]
If the "public interest" language of the statute were intended
to enact the substance of the First Amendment, a discussion of
whether broadcaster action is governmental action would indeed be
superfluous. For anything that Government could not do because of
the First Amendment the broadcasters could not do under the
statute. But this theory proves far too much, since it would make
the statutory scheme, with its emphasis on
Page 412 U. S. 143
broadcaster discretion and its proscription on interference with
"the right of free speech by means of radio communication," a
nullity. Were the Government really operating the electronic press,
it would, as my Brother DOUGLAS points out, be prevented by the
First Amendment from selection of broadcast content and the
exercise of editorial judgment. It would not be permitted, in the
name of "fairness," to deny time to any person or group on the
grounds that their views had been heard "enough." Yet broadcasters
perform precisely these functions and enjoy precisely these
freedoms, under the Act. The constitutional and statutory issues in
these cases are thus quite different.
In evaluating the statutory claims, the starting point must be
the
"venerable principle that the construction of a statute by those
charged with its execution should be followed unless there are
compelling indications that it is wrong. . . ."
Red Lion, 395 U.S. at
395 U. S.
381.
Though I have no doubt that the respondents here were attempting
to communicate what they considered to be important messages, it
does not follow that the Commission erred when it refused to
require every broadcaster to communicate those messages. Contrary
to what is said in dissent today, it is not the case that a seller
of goods is granted instant access to the media, while someone
"seeking to discuss war, peace, pollution, or the suffering of the
poor is denied this right to speak."
Post at
412 U. S. 200.
There is no indication that the thousands of broadcasters regulated
by the Commission have anything like a uniform policy of turning
down "controversial" or "editorial" advertising. In the cases
before us, the Business Executives' spot advertisements were
rejected by a single radio station. Of the three television
networks, only one turned down the Democratic National Committee's
request for air time. We are told that many, if not most,
broadcasters do accept advertising of
Page 412 U. S. 144
the type at issue here. This variation in broadcaster policy
reflects the very kind of diversity and competition that best
protects the free flow of ideas under a system of broadcasting
predicated on private management. [
Footnote 2/13]
Even though it would be in the public interest for the
respondents' advertisements to be heard, it does not follow that
the public interest requires every broadcaster to broadcast them.
And it certainly does not follow that the public interest would be
served by forcing every broadcaster to accept any particular kind
of advertising. In the light of these diverse broadcaster policies
-- and the serious First Amendment problem that a contrary ruling
would have presented -- there are surely no "compelling
indications" that the Commission misunderstood its statutory
responsibility.
III
There is never a paucity of arguments in favor of limiting the
freedom of the press. The Court of Appeals concluded that greater
Government control of press freedom is acceptable here because of
the scarcity of frequencies for broadcasting. But there are many
more broadcasting stations than there are daily newspapers.
[
Footnote 2/14] And it
Page 412 U. S. 145
would require no great ingenuity to argue that newspapers, too,
are Government. After all, newspapers get Government mail subsidies
and a limited antitrust immunity. [
Footnote 2/15] The reasoning of the Court of Appeals
would then lead to the conclusion that the First Amendment requires
that newspapers, too, be compelled to open their pages to all
comers.
Perhaps I overstate the logic of the opinion of the Court of
Appeals. Perhaps its "balancing" of First Amendment "values" would
require no more than that newspapers be compelled to give "limited"
access to dissident voices, and then only if those voices were
"responsible." And perhaps it would require that such access be
compelled only when there was a single newspaper in a particular
community. But it would be a close question for me which of these
various alternative results would be more grossly violative of the
First Amendment's guarantee of a free press. For that guarantee
gives every newspaper the liberty to print what it chooses and
reject what it chooses, free from the intrusive editorial thumb of
Government.
I profoundly trust that no such reasoning as I have attributed
to the Court of Appeals will ever be adopted by this Court. And if
I have exaggerated, it is only to make clear the dangers that beset
us when we lose sight of the First Amendment itself and march forth
in blind pursuit of its "values."
Those who wrote our First Amendment put their faith in the
proposition that a free press is indispensable to a free society.
They believed that "fairness" was far too fragile to be left for a
Government bureaucracy to accomplish.
Page 412 U. S. 146
History has many times confirmed the wisdom of their choice.
This Court was persuaded in
Red Lion to accept the
Commission's view that a so-called Fairness Doctrine was required
by the unique electronic limitations of broadcasting, at least in
the then-existing state of the art. Rightly or wrongly, we there
decided that broadcasters' First Amendment rights were
"abridgeable." But surely this does not mean that those rights are
nonexistent. And even if all else were in equipoise, and the
decision of the issue before us were finally to rest upon First
Amendment "values" alone, I could not agree with the Court of
Appeals. For if those "values" mean anything, they should mean at
least this: if we must choose whether editorial decisions are to be
made in the free judgment of individual broadcasters, or imposed by
bureaucratic fiat, the choice must be for freedom.
[
Footnote 2/1]
U.S.Const., Amdt. I, provides, in pertinent part, that "Congress
shall make no law . . . abridging the freedom of speech, or of the
press. . . ."
[
Footnote 2/2]
See Amalgamated Food Employees v. Logan Valley Plaza,
391 U. S. 308;
Railway Employes' Dept. v. Hanson, 351 U.
S. 225;
Public Utilities Comm'n v. Pollak,
343 U. S. 451;
Marsh v. Alabama, 326 U. S. 501.
[
Footnote 2/3]
"Conduct that is formally 'private' may become so entwined with
governmental policies or so impregnated with a governmental
character as to become subject to the constitutional limitations
placed upon state action."
Evans v. Newton, 382 U. S. 296,
382 U. S. 299.
Earlier, in
Burton v. Wilmington Parking Authority,
365 U. S. 715, the
Court held that a privately owned restaurant located within a
public parking garage was sufficiently involved with state
authority to bring its racially discriminatory actions within the
proscription of the Fourteenth Amendment.
[
Footnote 2/4]
See, e.g., United States v. Paramount Pictures, Inc.,
334 U. S. 131,
334 U. S. 166.
The Federal Communications Act also prohibits the Commission from
interfering with "the right of free speech by means of radio
communication." 47 U.S.C. § 326.
[
Footnote 2/5]
For a history of regulatory legislation regarding broadcasters,
see Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367,
395 U. S.
375-386;
National Broadcasting Co. v. United
States, 319 U. S. 190,
319 U. S.
210-214.
[
Footnote 2/6]
The personal attack and editorial reply rules appear at 47 CFR
§§ 73.123, 73.300, 73.59, 73.679. The public issue aspect of the
Fairness Doctrine requires the broadcaster to give adequate
coverage to public issues, fairly reflecting divergent views.
United Broadcasting Co., 10 F.C.C. 515;
New
Broadcasting Co., 6 P & F Radio Reg. 258;
see
generally Applicability of the Fairness Doctrine in the
Handling of Controversial Issues of Public Importance, 29 Fed.Reg.
10415. This coverage must be provided at the broadcaster's own
expense, if necessary,
Cullman Broadcasting Co., 25 P
& F Radio Reg. 895, and the duty must be met by providing
programming obtained at the licensee's own initiative if it is
available from no other source.
John J. Dempsey, 6 P &
F Radio Reg. 615.
[
Footnote 2/7]
Government is not restrained by the First Amendment from
controlling its own expression,
cf. New York Times Co. v.
United States, 403 U. S. 713,
403 U. S.
728-729 (STEWART, J., concurring). As Professor Thomas
Emerson has written,
"The purpose of the First Amendment is to protect private
expression, and nothing in the guarantee precludes the government
from controlling its own expression or that of its agents."
The System of Freedom of Expression 700 (1970).
[
Footnote 2/8]
"[T]he right to speak can flourish only if it is allowed to
operate in an effective forum -- whether it be a public park, a
school room, a town meeting hall, a soapbox, or a radio and
television frequency."
Post at
412 U. S.
193.
[
Footnote 2/9]
Professor Emerson has recognized the scope of the "access"
argument:
"The licensee therefore can only be considered as the agent of
the government, or trustee of the public, in a process of further
allocation. Hence, the licensee would have no direct First
Amendment rights of his own, except as to his own expression."
Supra, 412 U.S.
94fn2/7|>n. 7, at 663.
Though the licensee would be free to say what it wished during
its own broadcasting, whatever that might mean, it seems clear that
the licensee would have no special claim to broadcast time, and
would lose entirely the freedom to program and schedule according
to its own judgment, values, and priorities.
Cf. Police Dept.
of Chicago v. Mosley, 408 U. S. 92,
408 U. S. 98;
Cox v. Louisiana, 379 U. S. 536,
379 U. S. 554;
Poulos v. New Hampshire, 345 U. S. 395;
Cox v. New Hampshire, 312 U. S. 569.
Licensees would be forced to develop a procedurally fair and
substantively nondiscriminatory system for controlling access, and,
in my view, this is precisely what Congress intended to avoid
through § 3(h) of the Act.
[
Footnote 2/10]
Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367;
National Broadcasting Co. v. United
States, 319 U. S. 190;
FCC v. Sanders Brothers Radio Station, 309 U.
S. 470;
FCC v. Pottsville Broadcasting Co.,
309 U. S. 134.
[
Footnote 2/11]
None of this suggests any disagreement on my part with the
evolution of "state action" under the Fourteenth Amendment. I
recognize that, if
Moose Lodge No. 107 v. Irvis,
407 U. S. 163,
were relevant, the fact that the Commission considered and rejected
a challenge to broadcaster policy might be sufficient to constitute
"state action." This, in fact, was the basis of the Court's
decision in
Public Utilities Comm'n v. Pollak,
343 U. S. 451.
[
Footnote 2/12]
The basis for a Fairness Doctrine is statutory, not
constitutional. As the Court said in
Red Lion:
"In light of the fact that the 'public interest' in broadcasting
clearly encompasses the presentation of vigorous debate of
controversial issues of importance and concern to the public; the
fact that the FCC has rested upon that language from its very
inception a doctrine that these issues must be discussed, and
fairly; and the fact that Congress has acknowledged that the
analogous provisions of § 315 are not preclusive in this area, and
knowingly preserved the FCC's complementary efforts, we think the
fairness doctrine and its component personal attack and political
editorializing regulations are a legitimate exercise of
congressionally delegated authority."
395 U.S. at
395 U. S.
385.
[
Footnote 2/13]
The Democratic National Committee cited this very lack of
uniformity as a reason for seeking a declaratory ruing from the
Commission. There was too much diversity, it thought, for it to
plan effectively an advertising campaign. In the DNC's request for
a declaratory ruling before the Commission, it stated:
"In addition to the three national commercial networks, as of
April 1, 1970, there were, on the air, 509 commercial VHF
television stations, 180 commercial UHF stations, 4,280 standard
broadcast stations, and 2,111 commercial FM stations. While several
of these stations have common owners, it does not necessarily
follow that every station owned by an individual or group would
follow the same policies."
[
Footnote 2/14]
There are 1,792 daily newspapers in the United States. Ayer
Directory of Publications VIII (1973).
Compare the number
of broadcasters,
412 U.S.
94fn2/13|>n. 13,
supra.
[
Footnote 2/15]
Newspapers and other periodicals receive a Government subsidy in
the form of second-class postage rates, 39 CFR § 132. An antitrust
immunity is established by the Newspaper Preservation Act, 15
U.S.C. § 1801
et seq.
MR. JUSTICE WHITE, concurring.
I join Parts I, II, and IV of the Court's opinion and its
judgment. I do not, however, concur in the
412 U.
S.
I do not suggest that the conduct of broadcasters must always,
or even often, be considered that of a government for the purposes
of the First Amendment. But it is at least arguable, and strongly
so, that the Communications Act and the policies of the Commission,
including the Fairness Doctrine, are here sufficiently implicated
to require review of the Commission's orders under the First
Amendment. For myself, the heart of the argument is simply stated.
The claim in these cases was that the Communications Act and the
First Amendment should be interpreted to confer a right of access
on those who wished to buy time for editorial advertising and to
raise political funds. The Commission rejected both the statutory
and constitutional positions. To confer a right
Page 412 U. S. 147
of access, it said, would be contrary to the Communications Act
and to the policies adopted by the Commission to implement that
Act. Congress intended that the Fairness Doctrine be complied with,
but it also intended that broadcasters have wide discretion with
respect to the method of compliance. There is no requirement that
broadcasters accept editorial ads; they could, instead, provide
their own programs, with their own format, opinion and opinion
sources. Congress intended that there be no right of access such as
claimed in these cases; and, in the Commission's view, to recognize
that right would require major revisions in statutory and
regulatory policy. The Commission also ruled, contrary to the views
of its dissenting member, that rejection of the asserted right of
access was wholly consistent with the First Amendment.
In this context, I am not ready to conclude, as is done in the
Part III opinion, that the First Amendment may be put aside for
lack of official action necessary to invoke its proscriptions. But,
assuming,
arguendo, as the Court does in
412 U.
S. that Congress or the Commission is sufficiently
involved in the denial of access to the broadcasting media to
require review under the First Amendment, I would reverse the
judgment of the Court of Appeals. Given the constitutionality of
the Fairness Doctrine, and accepting Part IV of the Court's
opinion, I have little difficulty in concluding that statutory and
regulatory recognition of broadcaster freedom and discretion to
make up their own programs and to choose their method of compliance
with the Fairness Doctrine is consistent with the First
Amendment.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE POWELL joins,
concurring.
In
412 U. S.
assuming governmental action, broadcasters are required" to
accept
Page 412 U. S. 148
editorial advertisements "by reason of the First Amendment."
Ante at
412 U. S. 121.
The Court concludes that the Court of Appeals erred when it froze
the "continuing search for means to achieve reasonable regulation
compatible with the First Amendment rights of the public and the
licensees" into "a constitutional holding."
Ante at
412 U. S. 132.
The Court's conclusion that the First Amendment does not compel the
result reached by the Court of Appeals demonstrates that the
governmental action issue does not affect the outcome of this case.
I therefore refrain from deciding it.
MR. JUSTICE DOUGLAS, concurring in the judgment.
While I join the Court in reversing the judgment below, I do so
for quite different reasons.
My conclusion is that TV and radio stand in the same protected
position under the First Amendment as do newspapers and magazines.
The philosophy of the First Amendment requires that result, for the
fear that Madison and Jefferson had of government intrusion is
perhaps even more relevant to TV and radio than it is to newspapers
and other like publications. That fear was founded not only on the
spectre of a lawless government, but of government under the
control of a faction that desired to foist its views of the common
good on the people. In popular terms, that view has been expressed
as follows:
"The ground rules of our democracy, as it has grown, require a
free press, not necessarily a responsible or a temperate one. There
aren't any halfway stages. As Aristophanes saw, democracy means
that power is generally conferred on second-raters by third-raters,
whereupon everyone else, from first-raters to fourth-raters, moves
with great glee to try to dislodge them. It's messy, but most
politicians understand
Page 412 U. S. 149
that it can't very well be otherwise and still be a
democracy."
Stewart, reviewing Epstein, News From Nowhere: Television and
the News (1972), Book World, Washington Post March 25, 1973, pp. 4
5.
I
Public broadcasting, of course, raises quite different problems
from those tendered by the TV outlets involved in this
litigation.
Congress has authorized the creation of the Corporation for
Public Broadcasting, whose Board of Directors is appointed by the
President by and with the advice and consent of the Senate. 47
U.S.C. § 396. A total of 223 television and 560 radio stations made
up this nationwide public broadcasting system as of June 30, 1972.
See 1972 Corporation for Public Broadcasting Annual
Report. It is a nonprofit organization, and, by the terms of §
396(b), is said not to be "an agency or establishment of the United
States Government." Yet, since it is a creature of Congress whose
management is in the hands of a Board named by the President and
approved by the Senate, it is difficult to fee why it is not a
federal agency engaged in operating a "press" as that word is used
in the First Amendment. If these cases involved that Corporation,
we would have a situation comparable to that in which the United
States owns and manages a prestigious newspaper like the New York
Times, Washington Post or Sacramento Bee. The Government, as owner
and manager, would not, as I see it, be free to pick and choose
such news items as it desired. For, by the First Amendment, it may
not censor or enact or enforce any other "law" abridging freedom of
the press. Politics, ideological slants, rightist or leftist
tendencies could play no part in its design of programs.
See Markel, Will It be Public or Private TV?, World, Mar.
13, 1973, p. 57;
Page 412 U. S. 150
Shales, WGBH-TV: An Ultimatum Against "Improper" White House
Influence, Washington Post, Apr. 27, 1973, p. E2. More
specifically, the programs tendered by the respondents in the
present cases could not then be turned down.
Governmental action may be evidenced by various forms of
supervision or control of private activities.
Burton v.
Wilmington Parking Authority, 365 U.
S. 715. I have expressed the view that the activities of
licensees of the government operating in the public domain are
governmental actions, so far as constitutional duties and
responsibilities are concerned.
See Garner v. Louisiana,
368 U. S. 157,
368 U. S.
183-185 (concurring);
Lombard v. Louisiana,
373 U. S. 267,
373 U. S. 281
(concurring);
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S. 179
(dissenting). It is somewhat the same idea expressed by the first
Mr. Justice Harlan in his dissent in
Plessy v. Ferguson,
163 U. S. 537,
163 U. S. 554.
But that view has not been accepted. If a TV or radio licensee were
a federal agency, the thesis of my Brother BRENNAN would inexorably
follow. For a licensee of the Federal Government would be in
precisely the situation of the Corporation for Public Broadcasting.
A licensee, like an agency of the Government, would, within limits
of its time, be bound to disseminate all views. For, being an arm
of the Government, it would be unable, by reason of the First
Amendment, to "abridge" some sectors of thought in favor of others.
The Court does not, however, decide whether a broadcast licensee is
a federal agency within the context of these cases.
II
If a broadcast licensee is not engaged in governmental action
for purposes of the First Amendment, I fail to see how
constitutionally we can treat TV and radio differently than we
treat newspapers. It would come
Page 412 U. S. 151
as a surprise to the public as well as to publishers and editors
of newspapers to be informed that a newly created federal bureau
would hereafter provide "guidelines" for newspapers or promulgate
rules that would give a federal agency power to ride herd on the
publishing business to make sure that fair comment on all current
issues was made. In 1970, Congressman Farbstein introduced a bill,
[
Footnote 3/1] never reported out
of the Committee, which provided that any newspaper of general
circulation published in a city with a population greater than
25,000 and in which only one separately owned newspaper of general
circulation is published "shall provide a reasonable opportunity
for a balanced presentation of conflicting views on issues of
public importance," and giving the Federal Communications
Commission power to enforce the requirement.
Thomas I. Emerson, our leading First Amendment scholar, has
stated that:
"[A]ny effort to solve the broader problems of a monopoly press
by forcing newspapers to cover all 'newsworthy' events and print
all viewpoints, under the watchful eyes of petty public officials,
is likely to undermine such independence as the press now shows
without achieving any real diversity."
The System of Freedom of Expression 671 (1970).
The sturdy people who fashioned the First Amendment would be
shocked at that intrusion of Government into a field which in this
Nation has been reserved for individuals, whatever part of the
spectrum of opinion they represent. Benjamin Franklin, one of the
Founders who was in the newspaper business, wrote in simple and
graphic form what I had always assumed was the basic
Page 412 U. S. 152
American newspaper tradition that became implicit in the First
Amendment. In our early history, one view was that the publisher
must open his columns
"to any and all controversialists, especially if paid for it.
Franklin disagreed, declaring that his newspaper was not a
stagecoach, with seats for everyone; he offered to print pamphlets
for private distribution, but refused to fill his paper with
private altercations. [
Footnote
3/2]"
F. Mott, American Journalism 55 (3d ed.1962).
It is said that TV and radio have become so powerful and exert
such an influence on the public mind that they must be controlled
by Government. [
Footnote 3/3]
Some
Page 412 U. S. 153
newspapers in our history have exerted a powerful -- and some
have thought -- a harmful interest on the public mind. But even
Thomas Jefferson, who knew how base and obnoxious the press could
be, never dreamed of interfering. For he thought that government
control of newspapers would be the greater of two evils. [
Footnote 3/4]
"I deplore . . . the putrid state into which our newspapers have
passed, and the malignity, the vulgarity, and mendacious spirit of
those who write them. . . . These ordures are rapidly depraving the
public taste."
"It is, however, an evil for which there is no remedy; our
liberty depends on the freedom of the press, and that cannot be
limited without being lost."
Of course, there is private censorship in the newspaper field.
But for one publisher who may suppress a fact, there are many who
will print it. But if the Government is the censor, administrative
fiat, not freedom of choice, carries the day.
As stated recently by Harry Kalven, Jr.:
"It is an insufficiently noticed aspect of the First Amendment
that it contemplates the vigorous use of self-help by the opponents
of given doctrines, ideas, and political positions. It is not the
theory that all ideas and positions are entitled to flourish under
freedom of discussion. It is rather, then, that they must survive
and endure against hostile criticism. There is perhaps a paradox in
that the suppression of speech by speech is part and parcel of the
principle of freedom of speech. Indeed, one big reason why policy
dictates that government keep its hands off communication is that,
in this area, self-help of criticism is singularly effective. . .
."
"Free, robust criticism of government, its officers, and its
policy is the essence of the democratic
Page 412 U. S. 154
dialectic -- of 'the belief,' again to quote Brandeis, 'in the
power of reason as applied through public discussion.' The
government cannot reciprocally criticize the performance of the
press, its officers, and its policies without its criticism's
carrying implications of power and coercion. The government simply
cannot be another discussant of the press's performance. Whether it
will it or not, it is a critic who carries the threat of the
censor, and, more often than not, it wills it. Nor is it at all
clear that its voice will be needed; surely there will be others to
champion its view of the performance of the press."
"The balance struck, then, is avowedly, and even
enthusiastically, one-sided. The citizen may criticize the
performance and motives of his government. The government may
defend its performance and its policies, but it may not criticize
the performance and motives of its critics."
6 The Center Magazine, No. 3, pp. 36-37 (May/June 1973).
Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367, in a carefully written opinion that was built
upon predecessor cases, put TV and radio under a different regime.
I did not participate in that decision and, with all respect, would
not support it. The Fairness Doctrine has no place in our First
Amendment regime. It puts the head of the camel inside the tent and
enables administration after administration to toy with TV or radio
in order to serve its sordid or its benevolent ends. In 1973 -- as
in other years -- there is clamoring to make TV and 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.
The same cry of protest has gone up against the newspapers and
magazines. When Senator Joseph McCarthy
Page 412 U. S. 155
was at his prime, holding in his hand papers containing the
names of 205 "Communists" in the State Department (R. Feuerlicht,
Joe McCarthy and McCarthyism 54 (1972)), there were scarcely a
dozen papers in this Nation that stood firm for the citizen's right
to due process and to First Amendment protection. That, however,
was no reason to put the saddle of the federal bureaucracy on the
backs of publishers. Under our Bill of Rights, people are entitled
to have extreme ideas, silly ideas, partisan ideas.
The same is true, I believe, of TV and radio. At times, they
have a nauseating mediocrity. At other times, they show the
dazzling brilliance of a Leonard Bernstein, and they very often
bring humanistic influences of faraway people into every home.
Both TV and radio news broadcasts frequently tip the news one
direction or another, and even try to turn a public figure into a
character of disrepute. Yet so do the newspapers and the magazines,
and other segments of the press. The standards of TV, radio,
newspapers, or magazines -- whether of excellence or mediocrity --
are beyond the reach of Government. Government -- acting through
courts -- disciplines lawyers. Government makes criminal some acts
of doctors and of engineers. But the First Amendment puts beyond
the reach of Government federal regulation of news agencies save
only business or financial practices which do not involve First
Amendment rights. Conspicuous is
Associated Press v. United
States, 326 U. S. 1, where
enforcement of the antitrust laws against a news-gathering agency
was held to be not inconsistent with First Amendment rights.
Government has no business in collating, dispensing, and
enforcing, subtly or otherwise, any set of ideas on the press.
Beliefs, proposals for change, clamor for controls, protests
against any governmental regime are protected
Page 412 U. S. 156
by the First Amendment against governmental ban or control.
There has been debate over the meaning of the First Amendment as
applied to the States by reason of the Fourteenth. Some have
thought that, at the state level, the First Amendment was somewhat
"watered down," and did not have the full vigor which it had as
applied to the Federal Government.
See Roth v. United
States, 354 U. S. 476,
354 U. S.
502-503 (Harlan, J., concurring). So far, that has been
the minority view.
See Malloy v. Hogan, 378 U. S.
1,
378 U. S. 10. But
it is quite irrelevant here, for the First Amendment, like other
parts of the Bill of Rights, was, at the outset, applicable only to
the Federal Government. [
Footnote
3/5] The First Amendment is written in terms that are absolute.
Its command is that "Congress shall make no law . . . abridging the
freedom of speech, or of the press. . . ."
That guarantee, can, of course, be changed by a constitutional
amendment which can make all the press or segments of the press
organs of Government, and thus control the news and information
which people receive. Such a restructuring of the First Amendment
cannot be done by judicial fiat or by congressional action. The ban
of "no" law that abridges freedom of the press is, in my view,
total and complete. [
Footnote 3/6]
The Alien and Sedition Acts, 1 Stat. 566, 570, 596, passed early in
our history, were
Page 412 U. S. 157
plainly unconstitutional, as Jefferson believed. Jefferson,
indeed, said that, by reason of the First Amendment,
"libels, falsehood, and defamation, equally with heresy and
false religion, are withheld from the cognizance of federal
tribunals. That therefore the act of the Congress of the United
States, passed on the 14th of July, 1798, entitled "An Act in
Addition to the Act entitled
An Act for the Punishment of
certain Crimes against the United States,'" which does abridge the
freedom of the press, is not law, but is altogether void, and of no
force."
4 J. Elliot's Debates on the Federal Constitution 541 (1876).
And see 15 Writings of Thomas Jefferson 214 (Memorial
ed.1904); 14
id. at 116; 11
id. at 43-44.
Those Acts had but a short life, and we never returned to them.
We have, however, witnessed a slow encroachment by Government over
that segment of the press that is represented by TV and radio
licensees. Licensing is necessary for engineering reasons; the
spectrum is limited, and wavelengths must be assigned to avoid
stations' interfering [
Footnote
3/7] with each other.
Red Lion Broadcasting Co. v.
FCC, 395 U.S. at
395 U. S. 388.
The Commission has a duty to encourage a multitude of voices, but
only in
Page 412 U. S. 158
a limited way,
viz., by preventing monopolistic
practices and by promoting technological developments that will
open up new channels. [
Footnote
3/8] But censorship [
Footnote
3/9] or editing or the screening by Government of what
licensees may broadcast goes against the grain of the First
Amendment.
The Court in
National Broadcasting Co. v. United
States, 319 U. S. 190,
319 U. S. 226,
said,
"Unlike other modes of
Page 412 U. S. 159
expression, radio inherently is not available to all. That is
its unique characteristic, and that is why, unlike other modes of
expression, it is subject to governmental regulation."
That uniqueness is due to engineering and technical problems.
But the press, in a realistic sense, is likewise not available to
all. Small or "underground" papers appear and disappear; and the
weekly is an established institution. But the daily papers now
established are unique in the sense that it would be virtually
impossible for a competitor to enter the field due to the financial
exigencies of this era. The result is that, in practical terms, the
newspapers and magazines, like TV and radio, are available only to
a select few. Who at this time would have the folly to think he
could combat the New York Times or Denver Post by building a new
plant and becoming a competitor? That may argue for a redefinition
of the responsibilities of the press in First Amendment terms.
[
Footnote 3/10] But I do not
think it gives us
Page 412 U. S. 160
carte blanche to design systems of supervision and
control or empower Congress to read the mandate in the First
Amendment that "Congress shall make no law . . . abridging the
freedom . . . of the press" to mean that Congress may, acting
directly or through any of its agencies such as the FCC, make
"some" laws "abridging" freedom of the press.
Powerful arguments, summarized and appraised in T. Emerson, The
System of Freedom of Expression, cc. VII and XVIII (1970), can be
made for revamping or reconditioning the system. The present one
may be largely aligned on the side of the
status quo. The
problem implicates our educational efforts, which are bland and
conformist, and the pressures on the press, from political and from
financial sources, to foist boilerplate points of view on our
people rather than to display the diversities of ideologies and
culture in a world which, as Buckminster Fuller said, has been
"communized" by the radio.
What kind of First Amendment would best serve our needs as we
approach the 21st century may be an open question. But the
old-fashioned First Amendment that we have is the Court's only
guideline, and one hard and fast principle which it announces is
that Government
Page 412 U. S. 161
shall keep its hands off the press. That principle has served us
through days of calm and eras of strife, and I would abide by it
until a new First Amendment is adopted. That means, as I view it,
that TV and radio, as well as the more conventional methods for
disseminating news, are all included in the concept of "press" as
used in the First Amendment, and therefore are entitled to live
under the
laissez-faire regime which the First Amendment
sanctions.
The issues presented in these cases are momentous ones. TV and
radio broadcasters have mined millions by selling merchandise, not
in selling ideas across the broad spectrum of the First Amendment.
But some newspapers have done precisely the same, loading their
pages with advertisements; they publish not discussions of critical
issues confronting our society, but stories about murders, scandal,
and slanderous matter touching the lives of public servants who
have no recourse, due to
New York Times Co. v. Sullivan,
376 U. S. 254.
Commissioner Johnson of the FCC wrote in the present case a
powerful dissent. He said:
"Although the First Amendment would clearly ban governmental
censorship of speech content, government must be concerned about
the procedural rules that control the public forums for discussion.
If someone -- a moderator, or radio-television licensee -- applies
rules that give one speaker, or viewpoint, less time (or none at
all) to present a position, then a censorship exists as invidious
as outright thought control. There is little doubt in my mind that,
for any given forum of speech, the First Amendment demands rules
permitting as many to speak and be heard as possible. And if this
Commission does not enact them, then the courts must require
them."
25 F.C.C.2d 216, 232.
Page 412 U. S. 162
But the prospect of putting Government in a position of control
over publishers is, to me, an appalling one, even to the extent of
the Fairness Doctrine. The struggle for liberty has been a struggle
against Government. The essential scheme of our Constitution and
Bill of Rights was to take Government off the backs of people.
Separation of powers was one device. An independent judiciary was
another device. The Bill of Rights was still another. And it is
anathema to the First Amendment to allow Government any role of
censorship over newspapers, magazines, books, art, music, TV,
radio, or any other aspect of the press. There is unhappiness in
some circles at the impotence of Government. But if there is to be
a change, let it come by constitutional amendment. The Commission
has an important role to play in curbing monopolistic practices, in
keeping channels free from interference, in opening up new channels
as technology develops. But it has no power of censorship.
It is said, of course, that Government can control the
broadcasters because their channels are in the public domain in the
sense that they use the airspace that is the common heritage of all
the people. But parks are also in the public domain. Yet people who
speak there do not come under Government censorship.
Lovell v.
Griffin, 303 U. S. 444,4
303 U. S.
50-453;
Hague v. CIO, 307 U.
S. 496,
307 U. S.
515-516. It is the tradition of Hyde Park, not the
tradition of the censor, that is reflected in the First Amendment.
TV and radio broadcasters are a vital part of the press, and, since
the First Amendment allows no Government control over it, I would
leave this segment of the press to its devices.
Licenses are, of course, restricted in time, and while, in my
view, Congress has the power to make each license limited to a
fixed term and nonreviewable, there is no power to deny renewals
for editorial or ideological reasons.
Page 412 U. S. 163
The reason is that the First Amendment gives no preference to
one school of thought over others. [
Footnote 3/11]
The Court in today's decision, by endorsing the Fairness
Doctrine, sanctions a federal saddle on broadcast licensees that is
agreeable to the traditions of nations that never have known
freedom of press [
Footnote 3/12]
and that is tolerable in countries that do not have a written
constitution containing prohibitions as absolute as those in the
First Amendment. Indeed, after these cases were argued, the FCC
instituted a "non-public" inquiry [
Footnote 3/13] to
Page 412 U. S. 164
determine whether any broadcaster or cablecaster has broadcast
"
obscene, indecent or profane language' in violation of" 18
U.S.C. § 1464.
In April, 1973, the FCC fined Sonderling Broadcasting Corp.,
which operates station WGLD in Oak Park, Illinois, for allowing
"obscene" conversations on a telephone "talk show." It used
Roth v. United States, 354 U. S. 476,
Memoirs v. Massachusetts, 383 U.
S. 413, and
Ginzburg v. United States,
383 U. S. 463, as
supplying the criteria for broadcasting. It fined the corporation
$2,000 under 18 U.S.C. § 1464, which reads,
"Whoever utters any obscene, indecent, or profane language by
means of radio communication shall be fined not more than $10,000
or imprisoned not more than two years, or both."
Commissioner Johnson dissented, saying that the FCC prefers
"to sit as an omniscient programming review board, allegedly
capable of deciding what is and is not good for the American public
to see and hear,"
and that, when the FCC bars a particular program, it casts "a
pall over the entire broadcasting industry" for the reason that the
licensees "fear the potential loss of their highly profitable
broadcast licenses." That, he concluded, creates a "chilling
effect" which has "enormous proportions," and reaches "all forms of
broadcast expression."
We ourselves have, of course, made great inroads on the First
Amendment, of which obscenity is only one of the many examples. So
perhaps we are inching slowly toward a controlled press. But the
regime of federal supervision under the Fairness Doctrine is
contrary to our constitutional mandate, and makes the broadcast
licensee an easy victim of political pressures and reduces him to a
timid and submissive segment of the press whose measure of the
public interest will now be echoes of the dominant political voice
that emerges after every election. The affair with freedom of which
we have been
Page 412 U. S. 165
proud will now bear only a faint likeness of our former robust
days.
III
I said that it would come as a surprise to the public as well as
to publishers and editors of newspapers to learn that they were
under a newly created federal bureau. Perhaps I should have said
that such an event
should come as a surprise. In fact, it
might not, in view of the retrogressive steps we have
witnessed.
We have allowed ominous inroads to be made on the historic
freedom of the newspapers. The effort to suppress the publication
of the Pentagon Papers failed only by a narrow margin, and actually
succeeded for a brief spell in imposing prior restraint on our
press for the first time in our history.
See New York Times Co.
v. United States, 403 U. S. 713.
In recent years, the admonition of Mr. Justice Black that the
First Amendment gave the press freedom so that it might "serve the
governed, not the governors" (
id. at
403 U. S. 717)
has been disregarded.
"The Government's power to censor the press was abolished so
that the press would remain forever free to censure the Government.
The press was protected so that it could bare the secrets of
government and inform the people. Only a free and unrestrained
press can effectively expose deception in government. And paramount
among the responsibilities of a free press is the duty to prevent
any part of the government from deceiving the people and sending
them off to distant lands to die of foreign fevers and foreign shot
and shell."
Ibid.
The right of the people to know has been greatly undermined by
our decisions requiring, under pain of contempt, a reporter to
disclose the sources of the information he comes across in
investigative reporting.
Branzburg v. Hayes, 408 U.
S. 665.
Page 412 U. S. 166
The Boston Globe reports: [
Footnote 3/14]
"In the last two years, at least 20 Federal Grand Juries have
been used to investigate radical or anti-war dissent. With the
power of subpoena, the proceedings secret, and not bound by the
rules of evidence required in open court, they have a lot more
leverage than, for example, the old House UnAmerican Activities
Committee."
Many reporters have been put in jail, a powerful weapon against
investigative reporting. As the Boston Globe states, "in reality
what is being undermined here is press freedom itself." [
Footnote 3/15]
In the same direction is the easy use of the stamp "secret" or
"top secret" which the Court recently approved in
Environmental
Protection Agency v. Mink, 410 U. S. 73. That
decision makes a shambles of the Freedom of Information Act. In
tune with the other restraints on the press are provisions of the
new proposed Rules of Evidence which the Court recently sent to
Congress. Proposed Rule 509(b) provides:
"The government has a privilege to refuse to give evidence and
to prevent any person from giving evidence upon a showing of
reasonable likelihood of danger that the evidence will disclose a
secret of state or official information, as defined in this
rule."
Under the statute, if Congress does not act, [
Footnote 3/16] this new regime of secrecy will be
imposed on the Nation and the
Page 412 U. S. 167
right of people to know will be further curtailed. The proposed
code sedulously protects the Government; it does not protect
newsmen. It indeed pointedly omits any mention of the privilege of
newsmen to protect their confidential sources.
These growing restraints on newspapers have the same ominous
message that the overtones of the present opinion have on TV and
radio licensees.
The growing specter of governmental control and surveillance
over all activities of people makes ominous the threat to liberty
by those who hold the executive power. Over and over again,
attempts have been made to use the Commission as a political weapon
against the opposition, whether to the left or to the right.
Experience has shown that unrestrained power cannot be trusted
to serve the public weal, even though it be in governmental hands.
The fate of the First Amendment should not be so jeopardized.
[
Footnote 3/17] The
constitutional mandate that the Government shall make "no law"
abridging freedom of speech and the press is clear; the orders and
rulings of the Commission are covered by that ban, and it must be
carefully confined lest broadcasting -- now our most powerful media
-- be used to subdue the minorities or help produce a action of
people who walk submissively to the executive's notions of the
public good.
Page 412 U. S. 168
Mills v. Alabama, 384 U. S. 214,
involved a prosecution of a newspaper editor for publishing,
contrary to a state statute, an editorial on election day urging
the voters to vote against the existing city commission and to
replace it with a mayor-council government. This Court, speaking
through Mr. Justice Black, reversed the judgment saying:
"[T]he press serves, and was designed to serve, as a powerful
antidote to any abuses of power by governmental officials, and as a
constitutionally chosen means for keeping officials elected by the
people responsible to all the people whom they were selected to
serve. Suppression of the right of the press to praise or criticize
governmental agents and to clamor and contend for or against
change, which is all that this editorial did, muzzles one of the
very agencies the Framers of our Constitution thoughtfully and
deliberately selected to improve our society and keep it free. The
Alabama Corrupt Practices Act, by providing criminal penalties for
publishing editorials such as the one here, silences the press at a
time when it can be most effective. It is difficult to conceive of
a more obvious and flagrant abridgment of the constitutionally
guaranteed freedom of the press."
Id. at
384 U. S.
219.
I would apply the same test to TV or radio. [
Footnote 3/18]
Page 412 U. S. 169
What Walter Lippman wrote about President Coolidge's criticism
of the press has present relevancy. Coolidge, he said, had
"'declared for peace, good-will, understanding moderation;
disapproved of conquest, aggression, exploitation; pleaded for a
patriotic press, for a free press; denounced a narrow and bigoted
nationalism, and announced that he stood for law, order, protection
of life, property, respect for sovereignty and principle of
international law. Mr. Coolidge's catalog of the virtues was
complete except for one virtue. . . . That is the humble
realization that God has not endowed Calvin Coolidge with an
infallible power to determine in each concrete case exactly what is
right, what is just, what is patriotic. . . . Did he recognize this
possibility, he would not continue to lecture the press in such a
way as to make it appear that, when newspapers oppose him, they are
unpatriotic, and that, when they support him, they do so not
because they think his case is good, but because they blindly
support him. Mr. Coolidge's notion . . . would, if it were accepted
by the American press, reduce it to utter triviality.'"
J. Luskin, Lippman, Liberty, and the Press 60 (1972).
Page 412 U. S. 170
The same political appetite for oversight of most segments of
the press has markedly increased since the bland days of Calvin
Coolidge.
[
Footnote 3/1]
H.R. 18927, 91st Cong., 2d Sess.
[
Footnote 3/2]
Congress provided in 47 U.S.C. § 153(h) that "a person engaged
in radio broadcasting shall not, insofar as such person is so
engaged, be deemed a common carrier."
[
Footnote 3/3]
"To say that the media have great decisionmaking powers without
defined legal responsibilities or any formal duties of public
accountability is both to overestimate their power and to put forth
a meaningless formula for reform. How shall we make the New York
Times 'accountable' for its anti-Vietnam policy? Require it to
print letters to the editor in support of the war? If the situation
is as grave as stated, the remedy is fantastically inadequate. But
the situation is not that grave. The New York Times, the Chicago
Tribune, NBC, ABC, and CBS play a role in policy formation, but
clearly they were not alone responsible, for example, for Johnson's
decision not to run for reelection, Nixon's refusal to withdraw the
troops from Vietnam, the rejection of the two billion dollar New
York bond issue, the defeat of Carswell and Haynsworth, or the
Supreme Court's segregation, reapportionment and prayer decisions.
The implication that the people of this country -- except the
proponents of the theory -- are mere unthinking automatons
manipulated by the media, without interests, conflicts, or
prejudices, is an assumption which I find quite maddening. The
development of constitutional doctrine should not be based on such
hysterical overestimation of media power and underestimation of the
good sense of the American public."
Jaffe, The Editorial Responsibility of the Broadcaster.
Reflections on Fairness and Access, 85 Harv.L.Rev. 768, 786-787
(1972).
[
Footnote 3/4]
T. Jefferson, Democracy 150-151 (Padover ed.1939).
[
Footnote 3/5]
Barron v. Mayor of
Baltimore, 7 Pet. 243.
[
Footnote 3/6]
The press in this country, like that of Britain, was at one time
subject to contempt for its comments on pending litigation.
Toledo Newspaper Co. v. United States, 247 U.
S. 402. But that position was changed.
See Bridges
v. California, 314 U. S. 252,
314 U. S. 267.
Federal habeas corpus, however, is available to give a man his
freedom and the prosecution an opportunity for a new trial where
the conduct of the press has resulted in an unfair trial.
Sheppard v. Maxwell, 384 U. S. 333. And
change of venue may be had where the local atmosphere has saturated
the community with prejudice.
See Rideau v. Louisiana,
373 U. S. 723.
[
Footnote 3/7]
The Senate Report which accompanied the bill that became the
Radio Act of 1927, 44 Stat. 1162 stated:
"If the channels of radio transmission were unlimited in number,
the importance of the regulatory body would be greatly lessened,
but these channels are limited and restricted in number, and the
decision as to who shall be permitted to use them and on what terms
and for what periods of time, together with the other questions
connected with the situation, requires the exercise of a high order
of discretion and the most careful application of the principles of
equitable treatment to all the classes and interests affected. For
these and other reasons, your committee decided that all power to
regulate radio communication should be centered in one independent
body, a radio commission, granting it full and complete authority
over the entire subject of radio."
S.Rep. 772, 69th Cong., 1st Sess., 3.
[
Footnote 3/8]
Scarcity may soon be a constraint of the past, thus obviating
the concerns expressed in
Red Lion. It has been predicted
that it may be possible within 10 years to provide television
viewers 400 channels through the advances of cable television. R.
Smith, The Wired Nation 7 (1972);
see Brandywine-Main Line
Radio, Inc. v. FCC, 153 U.S. App. D.C. 305, 362-365, 473 F.2d
16, 73-76 (Bazelon, J., dissenting).
[
Footnote 3/9]
Currently, press censorship covers most of the globe. In Brazil,
the present regime of censorship is pervasive. As reported in the
New York Times for Feb. 17, 1973, p. 11:
"The censors' rules, issued a few months ago and constantly
amended, cover a vast field, and, if strictly applied, would leave
the press little to discuss. In practice, however, much depends on
the whims and suspicions of the local censors."
"General prohibitions include protests against censorship, any
discussion of a successor to President Emilio Garrastazu Medici,
whose term is up in 1974, campaigns against the Government's
special powers by decree, and sensational news that might hurt the
image of Brazil."
"Others are campaigns to discredit the national housing program,
the financial market, or other matters of vital importance to the
Government, the playing up of assaults on banks or credit
establishments, tension between the Roman Catholic Church and the
state, agitation in union and student circles, and publicity for
Communist personalities and nations. Criticism of state governors
and 'exaltation of immorality' through news of homosexuality,
prostitution and drugs are also barred."
"The most controversial order, issued by the Minister of Justice
last September, bans all news, comment or interviews on a political
relaxation of the regime, on democracy for Brazil, and on the
economic and financial situation in general."
[
Footnote 3/10]
Indeed, it can be argued that the existence of newspapers, and
thus their access to the public, is dependent upon the preferential
mailing privileges newspapers receive through second-class postage
rates. This is a privilege afforded by the Government, and, as my
Brother STEWART recognizes, a form of subsidy.
Under the Postal Reorganization Act, the new Postal Rate
Commission is empowered to fix postage rates at levels high enough
to make each class of mail pay its own way. John Fischer reports
that the increase in second-class mail rates for magazines and
periodicals (127%) is "nothing less than a death sentence for an
unpredictable number of publications." The Easy Chair, Harper's
Magazine 30, 31 (May 1973). It is not the established giants of the
publishing field that will suffer most, for it is estimated that
some 10,000 magazines and small newspapers will be forced out of
existence.
Id. at 30. Fischer mentions specifically the
National Review, Human Events, The Nation, and The New Republic.
These are the publications that offer us the rich diversity of
opinion and reporting the First Amendment is designed to promote
and protect. As Senator McGee, Chairman of the Post Office and
Civil Service Committee, has said:
"I believe that the American public generally has a vested
interest in the survival of newspapers and magazines. Regardless of
the economic, political, or social policies which they espouse,
they contribute to the nation's thought process. I am personally
convinced that the Congress should not permit magazines to go under
because the cost of distributing them through the postal system is
higher than their readers are willing to pay."
Id. at 32.
In addition to the benefits of reduced postage rates, newspapers
have been afforded a limited antitrust exemption. Newspaper
Preservation Act, 15 U.S.C. § 181
et seq.
[
Footnote 3/11]
Judge Bazelon, dissenting in
Brandywine-Main Line Radio,
Inc. v. FCC, 153 U.S.App.D.C. at 358-359, 473 F.2d at 69-70,
said:
"WXUR was, no doubt, devoted to a particular religious and
political philosophy, but it was also a radio station devoted to
speaking out and stirring debate on controversial issues. The
station was purchased by Faith Theological Seminary to propagate a
viewpoint which was not being heard in the greater Philadelphia
area. The record is clear that, through its interview and call-in
shows, it did offer a variety of opinions on a broad range of
public issues, and that it never refused to lend its broadcast
facilities to spokesmen of conflicting viewpoints."
"The Commission's strict rendering of fairness requirements, as
developed in its decision, has removed WXUR from the air. This has
deprived the listening public not only of a viewpoint, but also of
robust debate on innumerable controversial issues. It is beyond
dispute that the public has lost access to information and ideas.
This is not a loss to be taken lightly, however unpopular or
disruptive we might judge these ideas to be."
(Footnotes omitted.)
[
Footnote 3/12]
If Eastern European experience since World War II is any
criterion, the newspapers are pretty much the company paper in the
huge company (Communist) nation. The easiest target, however, seems
to be TV, where the input can be carefully controlled and "prime
time" filled with tapes of official meetings, political speeches,
and the tedious accounts of achievement of the workers.
See Morgan, Press Obedience in East Europe, Washington
Post, May 19, 1973, p. A14.
[
Footnote 3/13]
FCC Order No. 73-331, 39 Fed.Reg. 8301 (Mar. 27, 1973).
[
Footnote 3/14]
The People's Need to Know, Editorial Series, Jan. 21-27, 1973,
reprinted from Boston Globe, p. 12.
[
Footnote 3/15]
Id. at 13.
[
Footnote 3/16]
By reason of an Act of Congress of Mar. 30, 1973, the Rules of
Evidence -- and amendments to the Rules of Civil Procedure and to
the Rules of Criminal Procedure (which we sent up Nov. 20, 1972,
and Dec. 18, 1972) -- Will have no force or effect except to the
extent that Congress expressly approves. 87 Stat. 9.
[
Footnote 3/17]
Alexander Bickel has spurned the "total agnosticism" that allows
the First Amendment to have its way because "who really knows,
after all, what is true or false, evil or good, noxious or
wholesome." The Press and Government: Adversaries Without
Absolutes, Freedom at Issue 5 (May-June 1973). He attributes this
view to Mr. Justice Holmes. He would place at least partial
responsibility with the Government for determining the "good
counsels and wholesome doctrine."
Ibid. But it was
precisely the mistrust of the evanescent, narrow, factional views
of those in power and the belief that no one has a patent on the
"truth" that underlay the First Amendment.
[
Footnote 3/18]
The monetary and other burdens imposed on the press by the right
of a criticized person to reply, like the traditional damage remedy
for libel, lead, of course, to self-censorship respecting matters
of importance to the public that the First Amendment denies the
Government the power to impose. The burdens certainly are as
onerous as the indirect restrictions on First Amendment rights
which we have struck down: (1) the requirement that a bookseller
examine the contents of his shop,
Smith v. California,
361 U. S. 147
(1959); (2) the requirement that a magazine publisher investigate
his advertisers,
Manual Enterprises, Inc. v. Day,
370 U. S. 478,
370 U. S.
492-493 (1962) (opinion of Harlan, J.); (3) the
requirement that names and addresses of sponsors be printed on
handbills,
Talley v. California, 362 U. S.
60 (1960); (4) the requirement that organizations supply
membership lists,
Gibson v. Florida Legislative Investigation
Committee, 372 U. S. 539
(1963);
Louisiana ex rel. Gremillion v. NAACP,
366 U. S. 293
(1961);
Bates v. City of Little Rock, 361 U.
S. 516 (1960);
NAACP v. Alabama, 357 U.
S. 449 (1958); and (5) the requirement that individuals
disclose organizational membership,
Shelton v. Tucker,
364 U. S. 479
(1960). In each instance, we held the restriction unconstitutional
on the ground that it discouraged or chilled constitutionally
protected rights of speech, press, or association.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
These cases require us to consider whether radio and television
broadcast licensees may, with the approval of the Federal
Communications Commission, [
Footnote
4/1] refuse absolutely to sell any part of their advertising
time to groups or individuals wishing to speak out on controversial
issues of public importance. In practical effect, the broadcaster
policy here under attack permits airing of only those paid
presentations which advertise products or deal with
"noncontroversial" matters, while relegating the discussion of
controversial public issues to formats such as documentaries, the
news, or panel shows, which are tightly controlled and edited by
the broadcaster. The Court holds today that this policy --
including the absolute ban on the sale of air time for the
discussion of controversial issues -- is consistent with the
"public interest" requirements of the Communications Act of 1934,
47 U.S.C. §§ 307(d), 309(a). [
Footnote
4/2] The Court also holds that the
Page 412 U. S. 171
challenged policy does not violate the First Amendment. It is
noteworthy that, in reaching this result, the Court does not hold
that there is insufficient "governmental involvement" in the
promulgation and enforcement of the challenged ban to activate the
commands of the First Amendment. On the contrary, only THE CHIEF
JUSTICE and my Brothers STEWART and REHNQUIST express the view that
the First Amendment is inapplicable to this case. My Brothers
WHITE, BLACKMUN, and POWELL quite properly do not decide that
question, for they find that the broadcaster policy here under
attack does not violate the "substance" of the First Amendment.
Similarly, there is no majority for the holding that the challenged
ban does not violate the "substance" of the First Amendment. For
although THE CHIEF JUSTICE and my Brother REHNQUIST purport to
"decide" that question, their disposition of the "governmental
involvement" issue necessarily renders their subsequent discussion
of the "substantive" question mere dictum.
Page 412 U. S. 172
In my view, the principle at stake here is one of fundamental
importance, for it concerns the people's right to engage in and to
hear vigorous pubic debate on the broadcast media. And balancing
what I perceive to be the competing interests of broadcasters, the
listening and viewing public, and individuals seeking to express
their views over the electronic media, I can only conclude that the
exclusionary policy upheld today can serve only to inhibit, rather
than to further, our "profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and
wide-open."
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 270
(1964). I would therefore affirm the determination of the Court of
Appeals that the challenged broadcaster policy is violative of the
First Amendment.
I
The command of the First Amendment that "Congress shall make no
law . . . abridging the freedom of speech, or of the press" is, on
its face, directed at governmental, rather than private, action.
Nevertheless, our prior decisions make clear that
"[c]onduct that is formally 'private' may become so entwined
with governmental policies or so impregnated with a governmental
character as to become subject to the constitutional limitations
placed upon [governmental] action."
Evans v. Newton, 382 U. S. 296,
382 U. S. 299
(1966). Thus, the reach of the First Amendment depends not upon any
formalistic "private/public" dichotomy, but, rather, upon more
functional considerations concerning the extent of governmental
involvement in, and public character of, a particular "private"
enterprise.
"Only by sifting facts and weighing circumstances can the
nonobvious involvement of the [Government] in private conduct be
attributed its true significance."
Burton v. Wilmington Parking Authority, 365 U.
S. 715,
365 U. S. 722
(1961);
See Moose Lodge No. 107
v.
Page 412 U. S. 173
Irvis, 407 U. S. 163,
407 U. S. 172
(1972). And because of the inherent complexity of this case-by-case
inquiry, "[t]his Court has never attempted the
impossible task'
of formulating an infallible test" for determining in all instances
whether particular conduct must be deemed private or governmental.
Reitman v. Mulkey, 387 U. S. 369,
387 U. S. 378
(1967); see Kotch v. Pilot Comm'rs, 330 U.
S. 552, 330 U. S. 556
(1947).
This does not mean, of course, that our prior experience in this
area offers no guidance for the purposes of our present inquiry. On
the contrary, our previous decisions have focused on myriad indicia
of "governmental action," many of which are directly applicable to
the operations of the broadcast industry. [
Footnote 4/3] As the Court of Appeals recognized,
"the general characteristics of the broadcast industry reveal an
extraordinary relationship between the broadcasters and the federal
government -- a relationship which puts that industry in a class
with few others."
146 U.S.App.D.C. 181, 190, 450 F.2d 642, 651. More specifically,
the public nature of the airwaves, the governmentally created
preferred status of broadcast licensees, the pervasive federal
regulation of broadcast programming, and the Commission's specific
approval of the challenged broadcaster policy combine in this case
to bring the promulgation and enforcement of that policy within the
orbit of constitutional imperatives.
At the outset, it should be noted that both radio and television
broadcasting utilize a natural resource -- the electromagnetic
spectrum [
Footnote 4/4] -- that is
part of the public
Page 412 U. S. 174
domain. And, although broadcasters are granted the temporary use
of this valuable resource for terminable three-year periods,
"ownership" and ultimate control remain vested in the people of the
United States. Thus, § 301 of the Communications Act of 1934, 47
U.S.C. § 301, specifically provides:
"It is the purpose of this [Act] . . . to maintain the control
of the United States over all the channels of interstate and
foreign radio transmission; and to provide for the use of such
channels, but not the ownership thereof, by persons for limited
periods of time, under licenses granted by Federal authority, and
no such license shall be construed to create any right, beyond the
terms, conditions, and periods of the license. . . ."
Such public "ownership" of an essential element in the
operations of a private enterprise is, of course, an important and
established indicium of "governmental involvement." In
Burton
v. Wilmington Parking Authority, supra, for example, we
emphasized the fact of "public ownership" in holding the
proscriptions of the Fourteenth Amendment applicable to a privately
owned restaurant leasing space in a building owned by the State.
[
Footnote 4/5]
Page 412 U. S. 175
In reaching that result, we explained that, in part because of
the "public ownership" of the building, the State "has elected to
place its power, property and prestige behind the" actions of the
privately owned restaurant. 365 U.S. at
365 U. S. 725.
And, viewing the relationship in its entirety, we concluded
that
"[t]he State has so far insinuated itself into a position of
interdependence with [the restaurant] that it must be recognized as
a joint participant in the challenged activity. . . ."
Ibid.; see also Moose Lodge No. 107 v. Irvis, supra at
407 U. S.
172-173,
407 U. S. 175;
Turner v. City of Memphis, 369 U.
S. 350 (1962);
Kissinger v. New York City Transit
Authority, 274 F.
Supp. 438 (SDNY 1967);
Farmer v. Moses, 232 F.
Supp. 154 (SDNY 1964).
A second indicium of "governmental involvement" derives from the
direct dependence of broadcasters upon the Federal Government for
their "right" to operate broadcast frequencies. There can be no
doubt that, for the industry as a whole, governmental regulation
alone makes "radio communication possible by . . . limiting the
number of licenses so as not to overcrowd the spectrum."
Red
Lion Broadcasting Co. v. FCC, 395 U.
S. 367,
395 U. S. 389
(1969). [
Footnote 4/6] Moreover,
with respect to individual licensees, it is equally clear that
"existing broadcasters have often attained their present position"
not as a result of free market pressures, [
Footnote 4/7] but rather "because of their initial
government selection. . . ."
Id. at
395 U. S. 400.
Indeed, the "
quasi-monopolistic" advantages enjoyed by
broadcast licensees "are the fruit of a preferred position
conferred by the Government."
Ibid.
Page 412 U. S. 176
Thus, as MR. CHIEF JUSTICE (then Judge) BURGER has himself
recognized,
"[a] broadcaster seeks and is granted the free and exclusive use
of a limited and valuable part of the public domain; when he
accepts that franchise, it is burdened by enforceable public
obligations."
Office of Communication of United Church of Christ v.
FCC, 123 U.S.App.D.C. 328, 337, 359 F.2d 994, 1003 (1966).
And, along these same lines, we have consistently held that
"when authority derives in part from Government's thumb on the
scales, the exercise of that power by private persons becomes
closely akin, in some respects, to its exercise by Government
itself."
American Communications Assn. v. Dodds, 339 U.
S. 382,
339 U. S. 401
(1950);
see, e.g., Public Utilities Comm'n v. Pollak,
343 U. S. 451,
343 U. S. 462
n. 8 (1952).
A further indicium of "governmental involvement" in the
promulgation and enforcement of the challenged broadcaster policy
may be seen in the extensive governmental control over the
broadcast industry. It is true, of course, that this "Court has
never held" that actions of an otherwise private entity necessarily
constitute governmental action if that entity "is subject to . . .
regulation in any degree whatever."
Moose Lodge No. 107 v
Irvis, supra, at
407 U. S. 173.
Here, however, we are confronted not with some minimal degree of
regulation, but rather with an elaborate statutory scheme governing
virtually all aspects of the broadcast industry. [
Footnote 4/8] Indeed, federal
Page 412 U. S. 177
agency review and guidance of broadcaster conduct is automatic,
continuing, and pervasive. [
Footnote
4/9] Thus, as the Court of Appeals noted, "[a]lmost no other
private business -- almost no other regulated private business --
is so intimately bound to government. . . ." 146 U.S.App.D.C. at
191, 450 F.2d at 652.
Even more important than this general regulatory scheme,
however, is the specific governmental involvement in the
broadcaster policy presently under consideration. There is, for
example, an obvious nexus between the Commission's Fairness
Doctrine and the absolute refusal of broadcast licensees to sell
any part of their air time to groups or individuals wishing to
speak out on controversial issues of public importance. Indeed, in
defense of this policy, the broadcaster petitioners argue
vigorously that this exclusionary policy is authorized, and even
compelled, by the Fairness Doctrine. And the Court itself
recognizes repeatedly that the Fairness Doctrine and other
Communications Act policies are
Page 412 U. S. 178
inextricably linked to the challenged ban. Thus, at one point,
the Court suggests that,
"[i]f the Fairness Doctrine were applied to editorial
advertising, there is . . . the substantial danger that the
effective operation of that doctrine would be jeopardized."
Ante at
412 U. S. 124.
Similarly, the Court maintains that, in light of the Fairness
Doctrine, there simply is no reason to allow individuals to
purchase advertising time for the expression of their own views on
public issues.
See ante at
412 U. S.
130-131. [
Footnote
4/10] Although I do not in any sense agree with the substance
of these propositions, they serve at least to illustrate the extent
to which the Commission's Fairness Doctrine has influenced the
development of the policy here under review.
Moreover, the Commission's involvement in the challenged policy
is not limited solely to the indirect effects of its Fairness
Doctrine. On the contrary, in a decision which must inevitably
provide guidance for future broadcaster action, the Commission has
specifically considered and specifically authorized the flat ban.
See Business Executives Move for Vietnam Peace, 25
F.C.C.2d 242 (1970);
Democratic National Committee, 25
F.C.C.2d 216 (1970). In so doing, the Commission -- and, through
it, the Federal Government -- has unequivocally given its
imprimatur to the absolute ban on editorial advertising. And, of
course, it is now well settled that specific governmental approval
of or acquiescence in challenged action by a private entity
indicates "governmental action."
Thus, in
McCabe v. Atchison, T. & S.F. R. Co.,
235 U. S. 151
(1914), for example, the Court dealt with a statute which, as
construed by the Court, simply
Page 412 U. S. 179
authorized rail carriers to provide certain types of
cars for white passengers without offering equal facilities to
blacks. Although dismissal of the complaint on procedural grounds
was affirmed, we made clear that such a statute, even though purely
permissive in nature, was invalid under the Fourteenth Amendment
because a carrier refusing equal service to blacks would be "acting
in the matter under the authority of a state law."
Id. at
235 U. S. 162.
And, some 50 years later, we explained this finding of
"governmental action" in
McCabe as
"nothing less than considering a permissive state statute as an
authorization to discriminate and as sufficient state action to
violate the Fourteenth Amendment. . . ."
Reitman v. Mulkey, 387 U.S. at
387 U. S. 379.
Thus, "[o]ur prior decisions leave no doubt" that any action of the
Government, through any of its agencies, approving, authorizing,
encouraging, or otherwise supporting conduct which, if performed by
the Government, would violate the Constitution, "constitutes
illegal [governmental] involvement in those pertinent private acts
. . . that subsequently occur."
Aldickes v. Kress &
Co., 398 U. S. 144,
398 U. S. 202
(1970) (opinion of BRENNAN, J.);
see, e.g., Moose Lodge No. 107
v. Irvis, supra; Hunter v. Erickson, 393 U.
S. 385 (1969);
Reitman v. Mulkey, supra; Evans v.
Newton, 382 U. S. 296
(1966);
Robinson v. Florida, 378 U.
S. 153 (1964);
Lombard v. Louisiana,
373 U. S. 267
(1963);
Peterson v. City of Greenville, 373 U.
S. 244 (1963);
Burton v. Wilmington Parking
Authority, supra; McCabe v. Atchison, T. & S.F. R. Co.,
supra.
Finally, and perhaps most important, in a case virtually
identical to those now before us, we held that a policy promulgated
by a privately owned bus company, franchised by the Federal
Government and regulated by the Public Utilities Commission of the
District of Columbia, must be subjected to the constraints of the
First Amendment.
Public Utilities Comm'n v.
Pollak, 343
Page 412 U. S. 180
U.S. 451 (1952). In reaching that result, we placed primary
emphasis on the specific regulatory acquiescence in the challenged
action of the bus company. Thus, after noting that the bus
company
"operates its service under the regulatory supervision of the
Public Utilities Commission of the District of Columbia which is an
agency authorized by Congress,"
we explained that our finding of "governmental action" was
predicated specifically
"upon the fact that that agency, pursuant to protests against
the [challenged policy], ordered an investigation of it and, after
formal public hearings, ordered its investigation dismissed on the
ground that the public safety, comfort and convenience were not
impaired thereby."
Id. at
343 U. S. 462.
See Moose Lodge No. 107 v. Irvis, supra, at
407 U. S.
175-176, n. 3.
Although THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and
MR. JUSTICE REHNQUIST, strains valiantly to distinguish
Pollak, he offers nothing more than the proverbial
"distinctions without a difference." Here, as in
Pollak,
the broadcast licensees operate "under the regulatory supervision
of . . . an agency authorized by Congress." 343 U.S. at
343 U. S. 462.
And, again as in
Pollak, that agency received "protests"
against the challenged policy and, after formal consideration,
"dismissed" the complaints on the ground that the "public interest,
convenience, and necessity" were not "impaired" by that policy.
Indeed, the argument for finding "governmental action" here is even
stronger than in
Pollak, for this case concerns not an
incidental activity of a bus company, but rather the primary
activity of the regulated entities -- communication.
Thus, given the confluence of these various indicia of
"governmental action" -- including the public nature
Page 412 U. S. 181
of the airwaves, [
Footnote
4/11] the governmentally created preferred status of
broadcasters, the extensive Government regulation of broadcast
programming, and the specific governmental approval of the
challenged policy -- I can only conclude that the Government "has
so far insinuated itself into a position" of participation in this
policy that the absolute refusal of broadcast licensees to sell air
time to groups or individuals wishing to speak out on controversial
issues of public importance must be subjected to the restraints of
the First Amendment. [
Footnote
4/12]
Page 412 U. S. 182
II
Radio and television have long been recognized as forms of
communication "affected by a First Amendment interest" and, indeed,
it can hardly be doubted that broadcast licensees are themselves
protected by that Amendment.
Red Lion Broadcasting Co. v.
FCC, 395 U.S. at
395 U. S. 386.
See United States v. Paramount Pictures, Inc.,
334 U. S. 131,
334 U. S. 166
(1948); Z. Chafee, Free Speech in the United States 545-546 (1941).
Recognition of this fact does not end our inquiry, however, for it
is equally clear that the protection of the First Amendment in this
context is not limited solely to broadcasters. On the contrary, at
least one set of competing claims to the
Page 412 U. S. 183
protection of that Amendment derives from the fact that, because
of the limited number of broadcast frequencies available and the
potentially pervasive impact of the electronic media,
"the people as a whole retain their interest in free speech by
radio and their collective right to have the medium function
consistently with the ends and purposes of the First
Amendment."
Red Lion Broadcasting Co. v. FCC, supra, at
395 U. S.
390.
Over 50 years ago, Mr. Justice Holmes sounded what has since
become a dominant theme in applying the First Amendment to the
changing problems of our Nation. "[T]he ultimate good," he
declared, "is better reached by free trade in ideas," and "the best
test of truth is the power of the thought to get itself accepted in
the competition of the market. . . ."
Abrams v. United
States, 250 U. S. 616,
250 U. S. 630
(1919) (dissenting opinion);
see also Whitney v.
California, 274 U. S. 357,
274 U. S.
375-376 (1927) (Brandeis, J., concurring);
Gitlow v.
New York, 268 U. S. 652,
268 U. S.
672-673 (1925) (Holmes, J., dissenting). Indeed, the
First Amendment itself testifies to our "profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open," [
Footnote 4/13] and the Amendment
"rests on the assumption that the widest possible dissemination
of information from diverse and antagonistic sources is essential
to the welfare of the public. . . ."
Associated Press v. United States, 326 U. S.
1,
326 U. S. 20
(1945). For
"it is only through free debate and free exchange of ideas that
government remains responsive to the will of the people and
peaceful change is effected."
Terminiello v. Chicago, 337 U. S.
1,
337 U. S. 4
(1949);
see also Thornhill v. Alabama, 310 U. S.
88,
310 U. S. 102
(1940);
Palko v. Connecticut, 302 U.
S. 319,
302 U. S.
326-327 (1937).
Page 412 U. S. 184
With considerations such as these in mind, we have specifically
declared that, in the context of radio and television broadcasting,
the First Amendment protects "the right of the public to receive
suitable access to social, political, esthetic, moral, and other
ideas and experiences. . . ."
Red Lion Broadcasting Co. v. FCC,
supra, at
395 U. S. 390.
[
Footnote 4/14] And, because
"[i]t is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ultimately
prevail, rather than to countenance monopolization of that market,
whether it be by the Government itself or a private licensee, . . .
[i]t is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount."
Ibid.
Thus, we have explicitly recognized that, in light of the unique
nature of the electronic media, the public have strong First
Amendment interests in the reception of a full spectrum of views --
presented in a vigorous and uninhibited manner -- on controversial
issues of public importance. And, as we have seen, it has
traditionally been thought that the most effective way to insure
this "uninhibited, robust, and wide-open" debate is by fostering a
"free trade in ideas" by making our forums of communication readily
available to all persons wishing to express their views. Although
apparently conceding the legitimacy of these principles, the Court
nevertheless upholds the absolute ban on editorial advertising
because, in its view, the Commission's Fairness Doctrine, in and of
itself, is sufficient to satisfy the First Amendment interests of
the public. I cannot agree.
Page 412 U. S. 185
The Fairness Doctrine originated early in the history of
broadcast regulation and, rather than being set forth in any
specific statutory provision, [
Footnote 4/15] developed gradually in a long series of
Commission rulings in particular cases. [
Footnote 4/16] In essence, the doctrine imposes a
twofold duty upon broadcast licensees: (1) coverage of issues of
public importance must be adequate, [
Footnote 4/17] and (2) such coverage must fairly
reflect opposing viewpoints. [
Footnote 4/18]
See Red Lion Broadcasting Co. v.
FCC, supra, at
395 U. S. 377.
In fulfilling their obligations under the Fairness Doctrine,
Page 412 U. S. 186
however, broadcast licensees have virtually complete discretion,
subject only to the Commission's general requirement that licensees
act "reasonably an in good faith," [
Footnote 4/19] "to determine what issues should be
covered, how much time should be allocated, which spokesmen should
appear, and in what format." [
Footnote 4/20] Thus, the Fairness Doctrine does not in
any sense require broadcasters to allow "non-broadcaster" speakers
to use the airwaves to express their own views on controversial
issues of public importance. [
Footnote 4/21] On the contrary, broadcasters may
meet
Page 412 U. S. 187
their fairness responsibilities through presentation of
carefully edited news programs, panel discussions, interviews, and
documentaries. As a result, broadcasters retain almost exclusive
control over the selection of issues and viewpoints to be covered,
the manner of presentation, and, perhaps most important, who shall
speak. Given this doctrinal framework, I can only conclude that the
Fairness Doctrine, standing alone, is insufficient -- in theory as
well as in practice -- to provide the kind of "uninhibited, robust,
and wide-open" exchange of views to which the public is
constitutionally entitled.
As a practical matter, the Court's reliance on the Fairness
Doctrine as an "adequate" alternative to editorial advertising
seriously overestimates the ability -- or willingness -- of
broadcasters to expose the public to the "widest possible
dissemination of information from diverse and antagonistic
sources." [
Footnote 4/22] As
Professor Jaffe has noted,
"there is considerable possibility the broadcaster will exercise
a large amount of self-censorship and try to avoid as much
controversy as he safely can. [
Footnote 4/23]"
Indeed, in light of the strong interest of broadcasters in
maximizing their audience, and therefore their profits, it seems
almost naive to expect the majority of broadcasters to produce the
variety and controversality of material necessary to reflect a full
spectrum of viewpoints. Stated simply, angry customers are not good
customers, and, in the commercial world of mass communications, it
is simply "bad business" to espouse -- or even to allow others to
espouse -- the heterodox or the controversial. As a result, even
under the Fairness Doctrine, broadcasters generally tend to permit
only established
Page 412 U. S. 188
-- or at least moderated -- views to enter the broadcast world's
"marketplace of ideas." [
Footnote
4/24]
Moreover, the Court's reliance on the Fairness Doctrine as the
sole means of informing the public seriously misconceives
and underestimates the public's
Page 412 U. S. 189
interest in receiving ideas and information directly from the
advocates of those ideas without the interposition of journalistic
middlemen. Under the Fairness Doctrine, broadcasters decide what
issues are "important," how "fully" to cover them, and what format,
time, and style of coverage are "appropriate." The retention of
such
absolute control in the hands of a few Government
licensees is inimical to the First Amendment, for vigorous, free
debate can be attained only when members of the public have at
least
some opportunity to take the initiative and
editorial control into their own hands.
Our legal system reflects a belief that truth is best
illuminated by a collision of genuine advocates. Under the Fairness
Doctrine, however, accompanied by an absolute ban on editorial
advertising, the public is compelled to rely
exclusively
on the "journalistic discretion" of broadcasters, who serve in
theory as surrogate spokesmen for all sides of all issues. This
separation of the advocate from the expression of his views can
serve only to diminish the effectiveness of that expression.
Indeed, we emphasized this fact in
Red Lion: [
Footnote 4/25]
"Nor is it enough that he should hear the arguments of
adversaries from his own teachers, presented as they state them,
and accompanied by what they offer as refutations. That is not the
way to do justice to the arguments, or bring them into real contact
with his own mind. He must be able to hear them from persons who
actually believe them; who defend them in earnest, and do their
very utmost for them."
Thus, if the public is to be honestly and forthrightly apprised
of opposing views on controversial issues, it is imperative that
citizens be permitted at least
some
Page 412 U. S. 190
opportunity to speak directly for themselves as genuine
advocates on issues that concern them.
Moreover, to the extent that broadcasters actually permit
citizens to appear on "their" airwaves under the Fairness Doctrine,
such appearances are subject to extensive editorial control. Yet it
is clear that the effectiveness of an individual's expression of
his views is as dependent on the style and format of presentation
as it is on the content itself. And the relegation of an
individual's views to such tightly controlled formats as the news,
documentaries, edited interviews, or panel discussions may tend to
minimize, rather than maximize the effectiveness of speech. Under a
limited scheme of editorial advertising, however, the crucial
editorial controls are in the speaker's own hands.
Nor are these cases concerned solely with the adequacy of
coverage of those views and issues which generally are recognized
as "newsworthy." For also at stake is the right of the public to
receive suitable access to new and generally unperceived ideas and
opinions. Under the Fairness Doctrine, the broadcaster is required
to present only "
representative community views and voices
on controversial issues" of public importance. [
Footnote 4/26] Thus, by definition, the Fairness
Doctrine tends to perpetuate coverage of those "views and voices"
that are already established, while failing to provide for exposure
of the public to those "views and voices" that are novel,
unorthodox, or unrepresentative of prevailing opinion. [
Footnote 4/27]
Page 412 U. S. 191
Finally, it should be noted that the Fairness Doctrine permits,
indeed
requires, broadcasters to determine for themselves
which views and issues are sufficiently "important" to warrant
discussion. The briefs of the broadcaster petitioners in this case
illustrate the type of "journalistic discretion" licensees now
exercise in this regard. Thus, ABC suggests that it would refuse to
air those views which
it considers "scandalous" or
"crackpot," [
Footnote 4/28] while
CBS would exclude those issues or opinions that are "insignificant"
[
Footnote 4/29] or "trivial."
[
Footnote 4/30] Similarly, NBC
would bar speech that strays "beyond the bounds of normally
accepted taste," [
Footnote 4/31]
and WTOP would protect the public from subjects that are "slight,
parochial or inappropriate." [
Footnote 4/32]
The genius of the First Amendment, however, is that it has
always defined what the public ought to hear by permitting speakers
to say what they wish. As the Court of Appeals recognized,
"[i] t has traditionally been thought that the best judge of the
importance of a particular viewpoint or issue is the individual or
group holding the viewpoint and wishing to communicate it to
others."
146 U.S.App.D.C. at 195, 450 F.2d at 656. Indeed, "supervised
and ordained discussion" is directly contrary to the underlying
purposes of the First Amendment, [
Footnote 4/33] for that Amendment
"presupposes that right
Page 412 U. S. 192
conclusions are more likely to be gathered out of a multitude of
tongues than through any kind of authoritative selection. [
Footnote 4/34]"
Thus, in a related context, we have explicitly recognized that
editorial advertisements constitute "an important outlet for the
promulgation of information and ideas by persons who do not
themselves have access to [media] facilities," and the
unavailability of such editorial advertising can serve only "to
shackle the First Amendment in its attempt to secure
the widest
possible dissemination of information from diverse and antagonistic
sources.'" New York Times Co. v. Sullivan, 376 U.S. at
376 U. S.
266.
The Fairness Doctrine's requirement of full and fair coverage of
controversial issues is, beyond doubt, a commendable and, indeed,
essential tool for effective regulation of the broadcast industry.
But, standing alone, it simply cannot eliminate the need for a
further, complementary airing of controversial views through the
limited availability of editorial advertising. Indeed, the
availability of at least
some opportunity for editorial
advertising is imperative if we are ever to attain the
"'free and general discussion of public matters [that] seems
absolutely essential to prepare the people for an intelligent
exercise of their rights as citizens.'"
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S. 250
(1936).
III
Moreover, a proper balancing of the competing First Amendment
interests at stake in this controversy must consider not only the
interests of broadcasters and of the listening and viewing public,
but also the independent First Amendment interest of groups and
individuals in effective self-expression.
See, e.g., T.
Emerson, Toward
Page 412 U. S. 193
a General Theory of the First Amendment 4-7 (1966); Z. Chafee,
Free Speech in the United States 33 (1941). "[S]peech concerning
public affairs . . . is the essence of self-government,"
Garrison v. Louisiana, 379 U. S. 64,
379 U. S. 74-75
(1964), and the First Amendment must therefore safeguard not only
the right of the public to hear debate, but also the right of
individuals to participate in that debate and to attempt to
persuade others to their points of view.
See, e.g., Thomas v.
Collins, 323 U. S. 516,
323 U. S. 537
(1945);
cf. NAACP v. Button, 371 U.
S. 415,
371 U. S.
429-430 (1963). And, in a time of apparently growing
anonymity of the individual in our society, it is imperative that
we take special care to preserve the vital First Amendment interest
in assuring "self-fulfillment [of expression] for each individual."
Police Dept. of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 96
(1972). For our citizens may now find greater than ever the need to
express their own views directly to the public, rather than through
a governmentally appointed surrogate, if they are to feel that they
can achieve at least some measure of control over their own
destinies.
In light of these considerations, the Court would concede, I
assume, that our citizens have at least an abstract right to
express their views on controversial issues of public importance.
But freedom of speech does not exist in the abstract. On the
contrary, the right to speak can flourish only if it is allowed to
operate in an effective forum -- whether it be a public park, a
school room, a town meeting hall, a soapbox, or a radio and
television frequency. For in the absence of an effective means of
communication, the right to speak would ring hollow indeed. And, in
recognition of these principles, we have consistently held that the
First Amendment embodies not only the abstract right to be free
from censorship, but also the right of an individual to utilize an
appropriate and effective medium for the expression of his
views.
Page 412 U. S. 194
See, e.g., Lloyd Corp., Ltd. . v. Tanner, 407 U.
S. 551,
407 U. S. 559
(1972);
Tinker v. Des Moines Independent School District,
393 U. S. 503
(1969);
Amalgamated Food Employees Union v. Logan Valley
Plaza, 391 U. S. 308
(1968);
Brown v. Louisiana, 383 U.
S. 131 (1966);
Edwards v. South Carolina,
372 U. S. 229
(1963);
Kunz v. New York, 340 U.
S. 290 (1951);
Marsh v. Alabama, 326 U.
S. 501 (1946);
Jamison v. Texas, 318 U.
S. 413 (1943);
Schneider v. State, 308 U.
S. 147 (1939);
Hague v. CIO, 307 U.
S. 496 (1939).
Here, of course, there can be no doubt that the broadcast
frequencies allotted to the various radio and television licensees
constitute appropriate "forums" for the discussion of controversial
issues of public importance. [
Footnote 4/35]
Page 412 U. S. 195
Indeed, unlike the streets, parks, public libraries, and other
"forums" that we have held to be appropriate for the exercise of
First Amendment rights, the broadcast media are dedicated
specifically to communication. And, since the expression of ideas
-- whether political, commercial, musical, or otherwise -- is the
exclusive purpose of the broadcast spectrum, it seems clear that
the adoption of a limited scheme of editorial advertising would in
no sense divert that spectrum from its intended use.
Cf. Lloyd
Corp., Ltd. v. Tanner, supra, at
407 U. S. 563;
Amalgamated Food Employees Union v. Logan Valley Plaza,
supra, at
391 U. S.
320.
Moreover, it is equally clear that, with the assistance of the
Federal Government, the broadcast industry has become what is
potentially the most efficient and effective "marketplace of ideas"
ever devised. [
Footnote 4/36]
Indeed, the electronic media are today "the public's prime source
of information," [
Footnote 4/37]
and we have ourselves recognized that broadcast
"technology . . . supplants atomized, relatively
Page 412 U. S. 196
informal communicational with mass media as a prime source of
national cohesion and news. . . ."
Red Lion Broadcasting Co. v. FCC, 395 U.S. at
395 U. S.
386n. 15. Thus, although "full and free discussion" of
ideas may have been a reality in the heyday of political
pamphleteering, modern technological developments in the field of
communications have made the soapbox orator and the leafleteer
virtually obsolete. And, in light of the current dominance of the
electronic media as the most effective means of reaching the
public, any policy that
absolutely denies citizens access
to the airwaves necessarily renders even the concept of "full and
free discussion" practically meaningless.
Regrettably, it is precisely such a policy that the Court
upholds today. And, since effectuation of the individual's right to
speak through a limited scheme of editorial advertising can serve
only to further, rather than to inhibit, the public's interest in
receiving suitable exposure to "uninhibited, robust, and wide-open"
debate on controversial issues, the challenged ban can be upheld
only if it is determined that such editorial advertising would
unjustifiably impair the broadcaster's assertedly overriding
interest in exercising
absolute control over "his"
frequency. [
Footnote 4/38] Such
an analysis, however, hardly reflects the delicate balancing of
interests that this sensitive question demands. Indeed, this
"absolutist" approach wholly disregards the competing First
Amendment rights of all "non-broadcaster" citizens, ignores the
Page 412 U. S. 197
teachings of our recent decision in
Red Lion Broadcasting
Co. v. FCC, supra, and is not supported by the historical
purposes underlying broadcast regulation in this Nation.
Prior to 1927, it must be remembered, it was clearly recognized
that the broadcast spectrum was part of the public domain. As a
result, the allocation of frequencies was left entirely to the
private sector, [
Footnote 4/39]
and groups and individuals therefore had the same right of access
to radio facilities as they had, and still have, to the printed
press -- that is, "anyone who will may transmit." [
Footnote 4/40] Under this scheme, however, the
number of broadcasters increased so dramatically that, by 1927,
every frequency was occupied by at least one station, and many were
occupied by several. "The result was confusion and chaos. With
everybody on the air, nobody could be heard."
National
Broadcasting Co. v. United States, 319 U.
S. 190,
319 U. S. 212
(1943). It soon became "apparent that broadcast frequencies
constituted a scarce resource whose use could be regulated and
rationalized only by the Government."
Red Lion Broadcasting Co.
v. FCC, supra, at
395 U. S. 376.
Thus, in the Radio Act of 1927, 44 Stat. 1162, Congress placed the
broadcast spectrum under federal regulation, and sought to
reconcile competing uses of the airwaves by setting aside a limited
number of frequencies for each of the important uses of radio.
[
Footnote 4/41] And, since the
number of frequencies allocated to public broadcasting was
necessarily limited, the
Page 412 U. S. 198
Government was compelled to grant licenses to some applicants
while denying them to others.
See generally Red Lion
Broadcasting Co. v. FCC, supra, at
395 U. S.
375-377,
395 U. S. 388;
National Broadcasting Co. v. United States, supra, at
319 U. S.
210-214.
Although the overriding need to avoid overcrowding of the
airwaves clearly justifies the imposition of a ceiling on the
number of individuals who will be permitted to operate broadcast
stations, [
Footnote 4/42] and,
indeed, renders it "idle to posit an unabridgeable First Amendment
right to broadcast comparable to the right of every individual to
speak, write, or publish," [
Footnote
4/43] it does not in any sense dictate that the continuing
First Amendment rights of all nonlicensees be brushed aside
entirely. Under the existing system, broadcast licensees are
granted a preferred status with respect to the airwaves not because
they have competed successfully in the free market, but rather
"because of their initial government selection. . . ."
Red Lion
Broadcasting Co. v. FCC, supra, at
395 U. S. 400.
And in return for that "preferred status," licensees must respect
the competing First Amendment
Page 412 U. S. 199
rights of others. Thus, although the broadcaster has a clear
First Amendment right to be free from Government censorship in the
expression of his own views, [
Footnote 4/44] and, indeed, has a significant interest
in exercising reasonable journalistic control over the use of his
facilities, "
[t]he right of free speech of a broadcaster . . .
does not embrace a right to snuff out the free speech of
others."
Id. at
395 U. S. 387
(emphasis added). Indeed, after careful consideration of the nature
of broadcast regulation in this country, we have specifically
declared that
"as far as the First Amendment is concerned, those who are
licensed stand no better than those to whom licenses are refused. A
license permits broadcasting, but the licensee has no
constitutional right to . . . monopolize a radio frequency to the
exclusion of his fellow citizens."
Id. at
395 U. S. 389.
Because I believe this view is as sound today as when voiced only
four years ago, I can only conclude that there is simply no
overriding First Amendment interest of broadcasters that can
justify the
absolute exclusion of virtually all of our
citizens from the most effective "marketplace of ideas" ever
devised.
This is not to say, of course, that broadcasters have
no First Amendment interest in exercising journalistic
supervision over the use of their facilities. On the contrary, such
an interest does indeed exist, and it is an interest that must be
weighed heavily in any legitimate effort to balance the competing
First Amendment interests involved in this case. In striking such a
balance, however, it must be emphasized that these cases deal
only with the allocation of
advertising time --
air time that broadcasters regularly relinquish to others without
the retention of significant editorial control. Thus, we are
concerned here not with the speech of broadcasters themselves,
[
Footnote 4/45]
Page 412 U. S. 200
but, rather, with their "right" to decide which
other
individuals will be given an opportunity to speak in a forum that
has already been opened to the public.
Viewed in this context, the
absolute ban on editorial
advertising seems particularly offensive, because, although
broadcasters refuse to sell any air time whatever to groups or
individuals wishing to speak out on controversial issues of public
importance, they make such air time readily available to those
"commercial" advertisers who seek to peddle their goods and
services to the public. Thus, as the system now operates, any
person wishing to market a particular brand of beer, soap,
toothpaste, or deodorant has direct, personal, and instantaneous
access to the electronic media. He can present his own message, in
his own words, in any format he selects, and at a time of his own
choosing. Yet a similar individual seeking to discuss war, peace,
pollution, or the suffering of the poor is denied this right to
speak. Instead, he is compelled to rely on the beneficence of a
corporate "trustee" appointed by the Government to argue his case
for him. It has long been recognized, however, that, although
access to public forums may be subjected to reasonable "time,
place, and manner" regulations, [
Footnote 4/46] "[s]elective exclusions from a public
forum may not be based on
content alone. . . ."
Police
Dept. of Chicago v. Mosley, 408 U.S. at
408 U. S. 96
(emphasis added);
see, e.g., Shuttlesworth v. City of
Birmingham, 394 U. S. 147
(1969);
Page 412 U. S. 201
Edwards v. South Carolina, 372 U.
S. 229 (1963);
Fowler v. Rhode Island,
345 U. S. 67
(1953);
Niemotko v. Maryland, 340 U.
S. 268 (1951);
Saia v. New York, 334 U.
S. 558 (1948). Here, of course, the differential
treatment accorded "commercial" and "controversial" speech clearly
violates that principle. [
Footnote
4/47] Moreover, and not without some irony, the favored
treatment given "commercial" speech under the existing scheme
clearly reverses traditional First Amendment priorities. For it has
generally been understood that "commercial" speech enjoys
less First Amendment protection than speech directed at
the discussion of controversial issues of public importance.
See, e.g., Breard v. Alexandria, 341 U.
S. 622 (1951);
Valentine v. Chrestensen,
316 U. S. 52
(1942).
The First Amendment values of individual self-fulfillment
through expression and individual participation in public debate
are central to our concept of liberty. If these values are to
survive in the age of technology, it is essential that individuals
be permitted at least some opportunity to express their views on
public issues over the electronic media. Balancing those interests
against the limited interest of broadcasters in exercising
"journalistic supervision" over the mere allocation of
advertising time that is already made available to some
members of the public, I simply cannot conclude that the interest
of broadcasters must prevail.
IV
Finally, the Court raises the specter of administrative
apocalypse as justification for its decision today. The Court's
fears derive largely from the assumption, implicit
Page 412 U. S. 202
in its analysis, that the Court of Appeals mandated an
absolute right of access to the airwaves. In reality,
however, the issue in these cases is not whether there is an
absolute right of access but, rather, whether there may be
an
absolute denial of such access. The difference is, of
course, crucial, and the Court's misconception of the issue
seriously distorts its evaluation of the administrative
difficulties that an invalidation of the absolute ban might
conceivably entail.
Specifically, the Court hypothesizes three potential sources of
difficulty: (1) the availability of editorial advertising might, in
the absence of adjustments in the system, tend to favor the
wealthy; (2) application of the Fairness Doctrine to editorial
advertising might adversely affect the operation of that doctrine;
and (3) regulation of editorial advertising might lead to an
enlargement of Government control over the content of broadcast
discussion. These are, of course, legitimate and, indeed,
important, concerns. But, at the present time, they are concerns --
not realities. We simply have no sure way of knowing whether, and
to what extent, if any, these potential difficulties will actually
materialize. The Court's bare assumption that these hypothetical
problems are both inevitable and insurmountable indicates an utter
lack of confidence in the ability of the Commission and licensees
to adjust to the changing conditions of a dynamic medium. This
sudden lack of confidence is, of course, strikingly inconsistent
with the general propositions underlying all other aspects of the
Court's approach to this case.
Moreover, it is noteworthy that, 28 years ago, the Commission
itself declared that
"the operation of any station under the extreme principles that
no time shall be sold for the discussion
Page 412 U. S. 203
of controversial public issues . . . is inconsistent with the
concept of public interest. . . . The Commission recognizes that
good program balance may not permit the sale or donation of time to
all who may seek it for such purposes, and that difficult problems
calling for careful judgment on the part of station management may
be involved in deciding among applicants for time when all cannot
be accommodated. However, competent management should be able to
meet such problems in the public interest and with fairness to all
concerned. The fact that it places an arduous task on management
should not be made a reason for evading the issue by a strict rule
against the sale of time for any programs of the type
mentioned."
United Broadcasting Co., 10 F.C.C. 515, 518 (1945). I
can see no reason why the Commission and licensees should be deemed
any less competent today then they were in 1945. And even if
intervening developments have increased the complexities involved
in implementing a limited right of access, there is certainly no
dearth of proposed solutions to the potential difficulties feared
by the Court.
See, e.g., Canby, The First Amendment Right
to Persuade: Access to Radio and Television, 19 U.C.L.A.L.Rev. 723,
754-757 (1972); Malone, Broadcasting, the Reluctant Dragon: Will
the First Amendment Right of Access End the Suppressing of
Controversial Ideas?, 5 U.Mich.J.L.Reform 193, 252-269 (1972);
Johnson & Westen, A Twentieth-Century Soapbox: The Right to
Purchase Radio and Television Time, 57 Va.L.Rev. 574 (1971); Note,
85 Harv.L.Rev. 689, 693-699 (1972).
With these considerations in mind, the Court of Appeals confined
itself to invalidating the flat ban alone,
Page 412 U. S. 204
leaving broad latitude [
Footnote
4/48] to the Commission and licensees to develop in the first
instance reasonable regulations to govern the availability of
editorial advertising. In the context of these cases, this was
surely the wisest course to follow, for,
"if experience with the administration of these doctrines
indicates that they have the net effect of reducing, rather than
enhancing, [First Amendment values], there will be time enough to
reconsider the constitutional implications."
Red Lion Broadcasting Co. v. FCC, 395 U.S. at
395 U. S.
393.
For the present, however, and until such time, if ever, as these
assertedly "overriding" administrative difficulties actually
materialize, I must agree with the conclusion of the Court of
Appeals that, although
"it may unsettle some of us to see an anti-war message or a
political party message in the accustomed place of a soap or beer
commercial . . . , we must not equate what is habitual with what is
right -- or what is constitutional. A society already so saturated
with commercialism can well afford another outlet for speech on
public issues. All that we may lose is some of our apathy.
[
Footnote 4/49]"
[
Footnote 4/1]
See Business Executives Move for Vietnam Peace, 25
F.C.C.2d 242 (1970);
Democratic National Committee, 25
F.C.C.2d 216 (1970).
[
Footnote 4/2]
I do not specifically address the "statutory" question in this
case because, in practical effect, the considerations underlying
the "statutory" question are, in many respects, similar to those
relevant to the "substance" of the "constitutional" claim. There is
one aspect of the Court's "statutory" discussion, however, that
merits at least brief attention. In upholding the absolute ban on
the sale of editorial advertising, the Court relies heavily upon 47
U.S.C. § 153(h), which declares that broadcasters shall not be
deemed "common carriers." In my view, this reliance is misplaced.
Even a cursory examination of the legislative history of this
provision reveals that it was enacted in recognition of the fact
that traditional doctrines governing true "common carriers," such
as transportation companies, would not suit the particular problems
of radio broadcasting. Specifically, it was feared that such
"common carrier" status for broadcasters would mean that they
"would have to give
all their time to [public issues]." 67
Cong.Rec. 12504 (Sen. Dill) (emphasis added);
see also
ibid. (Sen. Broussard);
id. at 12356 (Sen.Sess).
Section 153(h) was intended solely to assure that broadcasters
would not be required to surrender all of their air time to willing
purchasers; it does not bear upon the question whether they may be
required to sell a
reasonable and limited amount of air
time to members of the public for discussion of controversial
issues.
See 2 Z. Chafee, Government and Mass
Communications 635 n. 75 (1947). Indeed, the Commission itself has
rejected the Court's interpretation of § 153(h) when it declared,
over 25 years ago, that
"the operation of any station under the extreme principles that
no time shall be sold for the discussion of controversial public
issues . . . is inconsistent with the concept of public interest
established by the Communications Act. . . ."
United Broadcasting Co., 10 F.C.C. 515, 518 (1945).
[
Footnote 4/3]
See generally Business Executives Move for Vietnam
Peace, 25 F.C.C.2d at 253-264 (dissenting opinion), wherein
Commissioner Johnson identified no less than eight separate indicia
of "governmental action" involved in the promulgation and
enforcement of the challenged broadcaster policy.
[
Footnote 4/4]
For a discussion of the attributes of the electromagnetic
spectrum,
see generally W. Jones, Regulated Industries
1019 (1967); Levin, The Radio Spectrum Resource, 11 J.Law &
Econ. 433 (1968).
[
Footnote 4/5]
It is true, of course, that, unlike the State in
Burton, the Federal Government here does not receive
substantial financial compensation for the use of the "public"
property.
See Burton v. Wilmington Parking Authority,
365 U. S. 715,
365 U. S.
723-724 (1961);
Moose Lodge No. 107 v. Irvis,
407 U. S. 163,
407 U. S.
174-175 (1972). Nevertheless, the absence of such a
financial arrangement represents, in practical effect, Government
subsidization of broadcasters, thereby enhancing the degree of
governmental involvement.
Cf. Kalven, Broadcasting, Public
Policy and the First Amendment, 10 J.Law & Econ. 15, 31 (1967).
Moreover, as in
Burton, the publicly owned property is
"not surplus state property" but, rather, constitutes an "integral
and, indeed, indispensable part" of the governmental scheme.
Burton v. Wilmington Parking Authority, supra, at
365 U. S. 723.
See also 47 U.S.C. § 303(g).
[
Footnote 4/6]
For a discussion of the Fairness Doctrine and its relevance to
this case,
see text and notes, at nn.
412 U.S.
94fn4/15|>15-34,
infra.
[
Footnote 4/7]
Indeed, the Communications Act of 1934 makes it a criminal
offense to operate a broadcast transmitter without a license.
See 47 U.S.C. § 501. Thus, the Federal Government
specifically insulates the licensee from any real threat of
economic competition.
[
Footnote 4/8]
Thus, the Communications Act of 1934 authorizes the Federal
Communications Commission to assign frequency bands, 47 U.S.C. §
303(c); allocate licenses by location, § 303(d); regulate
apparatus, § 303(e); establish service areas, § 303(h); regulate
chain ownership, § 303(i); require the keeping of detailed records,
§ 303(j); establish qualifications of licensees, § 303(1); suspend
licenses, § 303(m)(1); inspect station facilities, § 303 (n);
require publication of call letters and other information, §
303(p); make rules to effect regulation of radio and television, §
303(r); require that television sets be capable of receiving all
signals, § 303(s); regulate the granting of licenses and the terms
thereof, §§ 307, 309; prescribe information to be supplied by
applicants for licenses, § 308(b); regulate the transfer of
licenses, § 310; impose sanctions on licensees, including
revocation of license, § 312; require fair coverage of
controversial issues, § 315; control the operation of transmitting
apparatus, § 318; and prohibit the use of offensive language, 18
U.S.C. § 1464.
[
Footnote 4/9]
Pursuant to statutory authority,
see 412 U.S.
94fn4/8|>n. 8,
supra, the Commission has
promulgated myriad regulations governing all aspects of licensee
conduct.
See 47 CFR § 73.17
et seq. These
regulations affect such matters as hours of operation, § 73.23;
multiple ownership of licenses by a single individual, § 73.35;
station location and program origination, § 73.30; maintenance of
detailed logs of programming, operation, and maintenance, §§
73.111-116; billing practices, § 73.124; the personal attack and
political editorial fairness requirements, § 73.123; relationship
of licensees to networks, §§ 73.131-139; permissible equipment, §§
73.39-50. The above-cited regulations relate only to AM radio, but
similar regulations exist for FM radio, § 73.201
et seq.,
and television, § 73.601
et seq.
[
Footnote 4/10]
In addition, the Court contends that, because of the Fairness
Doctrine, the challenged broadcaster policy does not discriminate
against controversial speech.
See ante at
412 U. S.
128-130.
[
Footnote 4/11]
Moreover, the appropriateness of a particular forum, even if
privately owned, for effective communication has, in some
instances, been emphasized to establish the relevance of First
Amendment protections.
See, e.g., Amalgamated Food Employees
Union v. Logan Valley Plaza, 391 U. S. 308
(1968);
Marsh v. Alabama, 326 U.
S. 501 (1946). Here, as the Court of Appeals
recognized,
"the broadcast media are specifically dedicated to
communication. They function as both our foremost forum for public
speech and our most important educator of an informed people."
146 U.S.App.D.C. 181, 192, 450 F.2d 642, 653.
See also
text and notes, at
412 U.S.
94fn4/35|>nn. 35-37,
infra.
[
Footnote 4/12]
In his concurring opinion, my Brother STEWART suggests that a
finding of governmental action in this context necessarily means
that "private broadcasters
are Government."
Ante
at
412 U. S. 139
(emphasis in original). In my view, this assertion reflects a
complete misunderstanding of the nature of the governmental
involvement in these cases. Here, the Government has selected the
persons who will be permitted to operate a broadcast station,
extensively regulates those broadcasters, and has specifically
approved the challenged broadcaster policy. Thus, the commands of
the First Amendment come into play not because "private
broadcasters are Government," but rather because the Government
"has so far insinuated itself into a position" of participation in
the challenged policy as to make the Government itself responsible
for its effects. Similarly, I cannot agree with my Brother
STEWART's suggestion that a finding of governmental involvement
here "would . . . simply strip broadcasters of their own First
Amendment rights."
Ibid. The actions of a purely private
individual are, of course, not subject to the constraints of the
First Amendment. But where, as here, the Government has implicated
itself in the actions of an otherwise private individual, that
individual must exercise his own rights with due regard for the
First Amendment rights of others. In other words, an accommodation
of competing rights is required, and "balancing," not the
"absolutist" approach suggested by my Brother STEWART, is the
result. Indeed, it is this misunderstanding of the significance of
governmental involvement that apparently leads to my Brother
STEWART's disagreement with my Brothers WHITE, BLACKMUN, and POWELL
as to the relationship between the "public interest" standard of
the Act and First Amendment "values."
I might also note that, contrary to the suggestion of my Brother
STEWART, a finding of governmental involvement in this case does
not in any sense command a similar conclusion with respect to
newspapers. Indeed, the factors that compel the conclusion that the
Government is involved in the promulgation and enforcement of the
challenged broadcaster policy have simply no relevance to
newspapers. The decision as to who shall operate newspapers is made
in the free market, not by Government fiat. The newspaper industry
is not extensively regulated and, indeed, in light of the
differences between the electronic and printed media, such
regulation would violate the First Amendment with respect to
newspapers. Finally, since such regulation of newspapers would be
impossible, it would likewise be impossible for the Government to
approve an exclusionary policy of newspapers in the sense that it
has approved the challenged policy of the broadcasters.
[
Footnote 4/13]
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 270
(1964);
see also Pickering v. Board of Education,
391 U. S. 563,
391 U. S. 573
(1968);
Mills v. Alabama, 384 U.
S. 214,
384 U. S. 218
(1966).
[
Footnote 4/14]
This was not new doctrine, for we have long recognized in a
variety of contexts that the First Amendment "necessarily protects
the right to receive [information]."
Martin v. City of
Struthers, 319 U. S. 141,
319 U. S. 143
(1943);
see, e.g., Stanley v. Georgia, 394 U.
S. 557,
394 U. S. 564
(1969);
Time, Inc. v. Hill, 385 U.
S. 374,
385 U. S. 388
(1967);
Griswold v. Connecticut, 381 U.
S. 479,
381 U. S. 482
(1965),
Lamont v. Postmaster General, 381 U.
S. 301 (1965).
[
Footnote 4/15]
The Fairness Doctrine was recognized and implicitly approved by
Congress in the 1959 amendments to § 15 of the Communications
Act.Act of Sept. 14, 1959, § 1, 73 Stat. 557, 47 U.S.C. § 315(a).
As amended, § 315(a) recognizes the obligation of broadcasters
"to operate in the public interest and to afford reasonable
opportunity for the discussion of conflicting views on issues of
public importance."
[
Footnote 4/16]
The Fairness Doctrine was first fully set forth in Report in the
Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246
(1949), and was elaborated upon in Applicability of the Fairness
Doctrine in the Handling of Controversial Issues of Public
Importance, 29 Fed.Reg. 10415 (1964). The statutory authority of
the Commission to promulgate this doctrine and related regulations
derives from the mandate to the "Commission from time to time, as
public convenience, interest, or necessity requires," to
promulgate
"such rules and regulations and prescribe such restrictions and
conditions . . . as may be necessary to carry out the provisions of
[the Act]."
47 U.S.C. § 303(r).
[
Footnote 4/17]
See John J. Dempsey, 6 P & F Radio Reg. 615 (1950);
see also Metropolitan Broadcasting Corp., 19 P & F
Radio Reg. 602 (1960);
The Evening News Assn., 6 P & F
Radio Reg. 283 (1950).
[
Footnote 4/18]
If the broadcaster presents one side of a question, and does not
wish to present the other side himself, he can fulfill his fairness
obligation by announcing his willingness to broadcast opposing
views by volunteers.
See Mid-Florida Television Corp., 40
F.C.C. 620 (1964). If the broadcaster rejects a volunteer spokesman
as "inappropriate," he must seek out others.
See Richard G.
Ruff, 19 F.C.C.2d 838 (1969). The broadcaster must provide
free time for the presentation of opposing views if sponsorship is
unavailable.
See Cullman Broadcasting Co., 25 P & F
Radio Reg. 895 (1963).
[
Footnote 4/19]
Applicability of the Fairness Doctrine in the Handling of
Controversial Issues of Public Importance,
supra,
412 U.S.
94fn4/16|>n. 16, at 10424.
[
Footnote 4/20]
Notice of Inquiry: The Handling of Public Issues Under the
Fairness Doctrine and the Public Interest Standards of the
Communications Act, 30 F.C.C.2d 26, 27-28 (1971);
see also
Applicability of the Fairness Doctrine in the Handling of
Controversial Issues of Public Importance,
supra,
412 U.S.
94fn4/16|>n. 16, at 10416; Report in the Matter of
Editorializing by Broadcast Licensees,
supra, 412 U.S.
94fn4/16|>n. 16.
[
Footnote 4/21]
Thus, the Fairness Doctrine must be sharply distinguished from
the "equal time" requirement, which provides that a broadcaster who
affords air time to one political candidate must make equal time
available to other candidates for the same office. 47 U.S.C. § 315.
See also Nicholas Zapple, 23 F.C.C.2d 707 (1970)
(extension of "equal time" rule to cover a candidate's supporters
where spokesmen for other candidates are permitted to purchase air
time). Similarly, the Fairness Doctrine must not be confused with
the Commission's "personal attack" and "political editorializing"
rules which were upheld in
Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367
(1969). The "personal attack" rule provides that,
"[w]hen, during the presentation of views on a controversial
issue of public importance, an attack is made upon the honesty,
character, integrity or like personal qualities of an identified
person,"
the licensee must notify the person attacked and offer him an
opportunity to respond. 47 CFR § 73.123. The "political
editorializing" rule provides that, when a licensee endorses a
candidate for political office, it must give other candidates or
their spokesmen an opportunity to respond.
See, e.g., 47
CFR § 73.123. Thus, unlike the Fairness Doctrine, the "equal time,"
"personal attack," and "political editorializing" rules grant a
particular group or individual a limited "right of access" to the
airwaves not subject to the "journalistic supervision" of the
broadcaster.
[
Footnote 4/22]
Associated Press v. United States, 326 U. S.
1,
326 U. S. 20
(1945).
[
Footnote 4/23]
Jaffe, The Editorial Responsibility of the Broadcaster:
Reflections on Fairness and Access, 85 Harv.L.Rev. 768, 773 n. 26
(1972).
[
Footnote 4/24]
See generally D. Lacy, Freedom and Communications 69
(1961); Mallamud, The Broadcast Licensee as Fiduciary: Toward the
Enforcement of Discretion, 1973 Duke L.J. 89, 94-95, 98-99; Jaffe,
supra, 412 U.S.
94fn4/23|>n. 23, at 773 n. 26; Canby, The First Amendment
Right to Persuade: Access to Radio and Television, 19
U.C.L.A.L.Rev. 723, 727 (1972); Malone, Broadcasting, The Reluctant
Dragon: Will the First Amendment Right of Access End the
Suppressing of Controversial Ideas?, 5 U.Mich.J.L.Reform 193,
205-211, 216 (1972); Johnson & Westen, A Twentieth Century
Soapbox: The Right to Purchase Radio and Television Time, 57
Va.L.Rev. 574 (1971); Barron, Access to the Press -- A New First
Amendment Right, 80 Harv.L.Rev. 1641 (1967); Note, Free Speech and
the Mass Media, 57 Va.L.Rev. 636 (1971); Note, A Fair Break for
Controversial Speakers: Limitations of the Fairness Doctrine and
the Need for Individual Access, 39 Geo.Wash.L.Rev. 532 (1971);
Note, The Wasteland Revisited: A Modest Attack Upon the FCC's
Category System, 17 U.C.L.A.L.Rev. 868, 870-875 (1970); Comment,
Freedom of Speech and the Individual's Right of Access to the
Airwaves, 1970 Law & Social Order 424, 428; Note, The Federal
Communications Commission's Fairness Regulations: A First Step
Towards Creation of a Right of Access to the Mass Media, 54 Cornell
L.Rev. 294, 296 (1969).
Although admitting that the Fairness Doctrine "has not always
brought to the public perfect or, indeed, even consistently
high-quality treatment of all public events and issues," the Court
nevertheless suggests that a broadcaster who fails to fulfill his
fairness obligations does so "at the risk of losing his license."
Ante at
412 U. S.
130-131. The Court does not cite a single instance,
however, in which this sanction has ever been invoked because of a
broadcaster's failure to comply with the Fairness Doctrine. Indeed,
this is not surprising, for the Commission has acted with great
reluctance in this area, intervening in only the most extreme cases
of broadcaster abuse.
See Mallamud,
supra, at
115-122; Canby,
supra, at 725-727; Malone,
supra,
at 215-216;
see also Cox & Johnson, Broadcasting in
America and the FCC's License Renewal Process: An Oklahoma Case
Study, 14 F.C.C.2d 1 (1968).
[
Footnote 4/25]
Red Lion Broadcasting Co. v. FCC, supra, at
395 U. S. 392
n. 18, quoting J. Mill, On Liberty 32 (R. McCallum ed.1947).
[
Footnote 4/26]
Democratic National Committee, 25 F.C.C.2d at 222
(emphasis added).
[
Footnote 4/27]
Indeed, the failure to provide adequate means for groups and
individuals to bring new issues or ideas to the attention of the
public explains, at least to some extent,
"the development of new media to convey unorthodox, unpopular,
and new ideas. Sit-ins and demonstrations testify to . . . the
inability to secure access to the conventional means of reaching
and changing public opinion. [For by] the bizarre and unsettling
nature of his technique, the demonstrator hopes to arrest and
divert attention long enough to compel the public to ponder his
message."
Barron, 80 Harv.L.Rev. at 1647;
cf. Adderley v.
Florida, 385 U. S. 39,
385 U. S. 50-51
(1966) (DOUGLAS, J., dissenting).
[
Footnote 4/28]
Brief for American Broadcasting Companies, Inc. 52.
[
Footnote 4/29]
Brief for Columbia Broadcasting System, Inc. 34.
[
Footnote 4/30]
Id. at 40.
[
Footnote 4/31]
Brief for National Broadcasting Company, Inc. 10.
[
Footnote 4/32]
Brief for Post-Newsweek Stations, Capital Area, Inc. 31.
[
Footnote 4/33]
Tinker v. Des Moines Independent School District,
393 U. S. 503,
393 U. S. 512
(1969).
[
Footnote 4/34]
United States v. Associated Press, 52 F. Supp.
362, 372 (SDNY 1943),
aff'd, 326 U. S.
1 (1945).
See also Thomas v. Collins,
323 U. S. 516,
323 U. S. 545
(1945) (Jackson, J., concurring).
[
Footnote 4/35]
The Court does make the rather novel suggestion, however, that
editorial advertising might indeed be "inappropriate" because
"listeners and viewers constitute a
captive audience.'"
Ante at 412 U. S. 127.
In support of this proposition, the Court cites our decisions in
Public Utilities Comm'n v. Pollak, 343 U.
S. 451 (1952), and Kovacs v. Cooper,
336 U. S. 77
(1949). In Pollak, however, we explicitly rejected a claim
that the broadcasting of radio programs in streetcars violated the
First and Fifth Amendment rights of passengers who did not wish to
listen to those programs. And in Kovacs, although we
upheld an ordinance forbidding the use on public streets of sound
trucks which emit "loud and raucous noises," we did so because the
ordinance was concerned not with the content of speech, but rather,
with the offensiveness of the sounds themselves. Here; however, the
Court seems perfectly willing to allow broadcasters to continue to
invade the "privacy" of the home through commercial advertising and
even controversial programming under the Fairness Doctrine. Thus,
the Court draws its line solely on the basis of the content of the
particular speech involved, and, of course, we have consistently
held that, where content is at issue, constitutionally protected
speech may not be prohibited because of a "mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular
viewpoint." Tinker v. Des Moines Independent School
District, 393 U.S. at
393 U. S. 509; see, e.g., Grayned v. City of
Rockford, 408 U. S. 104,
408 U. S. 117
(1972). The suggestion that constitutionally protected speech may
be banned because some persons may find the ideas expressed
offensive is, in itself, offensive to the very meaning of the First
Amendment.
[
Footnote 4/36]
Indeed, approximately 95% of American homes contain at least one
television set, and that set is turned on for an average of more
than five and one-half hours per day.
See Hearings on H.R.
13721 before the Subcommittee on Communications and Power of the
House Committee on Interstate and Foreign Commerce, 91st Cong., 2d
Sess., 7 (1970) (statement of Dean Burch, Chairman of the Federal
Communications Commission). As to the potential influence of the
electronic media on American thought,
see generally A.
Krock, The Consent of the Governed 66 (1971); H. Mendelsohn &
I. Crespi, Polls, Television, and the New Politics 256, 264 (1970);
Malone, 5 U.Mich.J.L.Reform at 197.
[
Footnote 4/37]
H.R.Rep. No. 91-257, p. 6 (1969). According to one study, 67% of
Americans prefer the electronic media to other sources of
information.
See G. Wyckoff, The Image Candidates 13-14
(1968).
See also Amendment of Sections 73.35, 73.240, and
73.636 of the Commission's Rules, 22 F.C.C.2d 339, 344 (1970) (59%
of Americans depend on television as their principal source of
news).
[
Footnote 4/38]
It should be noted that, although the Fairness Doctrine is at
least arguably relevant to the
public's interest in
receiving suitable exposure to "uninhibited, robust, and wide-open"
debate on controversial issues, it is not in any sense relevant to
the
individual's interest in obtaining access to the
airwaves for the purpose of effective self-expression. For the
individual's interest in expressing his own views in a manner of
his own choosing is an inherently personal one, and it can never be
satisfied by the expression of "similar" views by a surrogate
spokesman.
[
Footnote 4/39]
Indeed, pre-1927 regulation of radio gave no discretion to the
Federal Government to deny the right to operate a broadcast
station.
See 1 A. Socolow, The Law of Radio Broadcasting
38 (1939); H. Warner, Radio & Television Law 757
et
seq. (1948);
see generally National Broadcasting Co. v.
United States, 319 U. S. 190,
319 U. S.
210-214 (1943).
[
Footnote 4/40]
67 Cong.Rec. 5479 (Rep. White).
[
Footnote 4/41]
These include, of course, not only public broadcasting, but also
"amateur operation, aircraft, police, defense, and navigation. . .
."
Red Lion Broadcasting Co. v. FCC, 395 U.S. at
395 U. S.
388.
[
Footnote 4/42]
Although this licensing scheme necessarily restricts the First
Amendment rights of those groups or individuals who are denied the
"right" to operate a broadcast station, it does not, in and of
itself, violate the First Amendment. For it has long been
recognized that, when "[c]onflicting demands on the same [forum] .
. . compel the [Government] to make choices among potential users
and uses," neutral rules of allocation to govern that scarce
communications resource are not,
per se, unconstitutional.
Police Dept. of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 98
(1972);
cf. Cox v. Louisiana, 379 U.
S. 536,
379 U. S. 554
(1965);
Cox v. New Hampshire, 312 U.
S. 569,
312 U. S. 574
(1941);
Schneider v. State, 308 U.
S. 147,
308 U. S. 160
(1939). And, in the context of broadcasting, it would be ironic
indeed
"if the First Amendment, aimed at protecting and furthering
communications, prevented the Government from making radio
communication possible . . . by limiting the number of licenses so
as not to overcrowd the spectrum."
Red Lion Broadcasting Co. v. FCC, supra, at
395 U. S.
389.
[
Footnote 4/43]
Id. at
395 U. S.
388.
[
Footnote 4/44]
See, e.g., 47 U.S.C. § 326.
[
Footnote 4/45]
Thus, as the Court of Appeals recognized,
"[i]n normal programming time, closely controlled and edited by
broadcasters, the constellation of constitutional interests would
be substantially different."
146 U.S.App.D.C. at 193, 450 F.2d at 654.
[
Footnote 4/46]
See, e.g., Police Dept. of Chicago v. Mosley, supra, at
408 U. S. 98;
Grayned v. City of Rockford, 408 U.S. at
408 U. S. 115;
Cox v. Louisiana, supra, at
379 U. S. 554;
Poulos v. New Hampshire, 345 U. S. 395,
345 U. S. 398
(1953);
Cox v. New Hampshire, supra, at
312 U. S.
575-576;
Schneider v. State, supra, at
308 U. S.
160.
[
Footnote 4/47]
Contrary to the Court's assertion, the existence of the Fairness
Doctrine cannot in any sense rationalize this discrimination.
Indeed, the Fairness Doctrine is wholly unresponsive to the need
for individual access to the airwaves for the purpose of effective
self-expression.
See also 412 U.S.
94fn4/38|>n. 38,
supra.
[
Footnote 4/48]
The Court of Appeals did, however, suggest certain possible
contours of implementation. For example, the court noted that
broadcasters should be permitted "to place an outside limit on the
total amount of editorial advertising they will sell," and
"
reasonable regulation' of the placement of advertisements is
altogether proper." 146 U.S.App.D.C. at 202, 450 F.2d at
663.
[
Footnote 4/49]
Id. at 204-205, 450 F.2d at 665-666.