Program Content Regulation Revisited

  • L. A. PoweJr.


The subordinate First Amendment status of over-the-air broadcasting is long-standing and well-known. Red Lion Broadcasting v. Federal Communications Commission (FCC) 1 authorized the Commission to require broadcasters to air material (free of charge) that the broadcaster did not wish to air. FCC v. Pacifica Foundation 2 authorized the Commission to impose sanctions on stations airing programming that the Commission deemed indecent.


Federal Communication Commission Free Speech Content Regulation Cable System Cable Operator 
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  1. 1.
    395 U.S. 367 (1969)Google Scholar
  2. 2.
    438 U.S. 736 (1978).Google Scholar
  3. 3.
    Miami Herald v. Tornillo, 418 U.S. 241 (1974).Google Scholar
  4. 4.
    Cohen v. California, 403 U.S. 15 (1971).Google Scholar
  5. 5.
    395 U.S. at 390.Google Scholar
  6. 6.
    438 U.S. at 748.Google Scholar
  7. 7.
    438 U.S. at 749.Google Scholar
  8. 8.
    438 U.S. at 749.Google Scholar
  9. 9.
    See Part IV 438 U.S. at 749.Google Scholar
  10. 10.
    Thomas G. Krattenmaker & L.A. Powe, Jr., Converging First Amendment Principles for Converging Communications Media, 104 Yale L.J. 1719 (1995).Google Scholar
  11. 11.
    Does Everyone Have to Own Everything? Wall St. J., Jan. 12, 2000, at B1.Google Scholar
  12. 12.
    Harry Kalven, A Worthy Tradition (Harper & Row 1988).Google Scholar
  13. 13.
    Schenck v. United States, 249 U.S. 47 (1919).Google Scholar
  14. 14.
    Debs v. United States, 249 U.S. 211 (1919).Google Scholar
  15. 15.
    Abrams v. United States, 250 U.S. 616 (1919).Google Scholar
  16. 16.
    Gitlow v. New York, 268 U.S. 652 (1925).Google Scholar
  17. 17.
    Whitney v. California, 274 U.S. 357 (1927).Google Scholar
  18. 18.
    United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943), aff’d, 326 U.S. 1 (1946).Google Scholar
  19. 19.
    Turner Broadcasting System v. FCC, [I], 512 U.S. 622, 641 (1994).Google Scholar
  20. 20.
    United States v. Playboy Entertainment Group, 120 S.Ct. 1878, 1889 (2000).Google Scholar
  21. 22.
    Reno v. ACLU, 521 U.S. 840 (1997).Google Scholar
  22. 23.
    James Landis, The Administrative Process 75 (Yale Univ. Press 1938).Google Scholar
  23. 24.
    E.g., 47 U.S.C. §§ 303 (General Powers of the FCC), 307 (Allocation of Facilities), 309(a) (Initial Licensing), and 309(k)(Renewals). Even the new statutory framework for the transition to digital television technology incorporates the public interest standard. 47 U.S.C. § 336(e).Google Scholar
  24. 25.
    47 U.S.C. § 326: “Nothing in this Act shall be understood or construed to give the Commission the power of censorship over … 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.”Google Scholar
  25. 26.
    KFKB v. FRC, 47 F. 2d 670 (D.C. Cir. 1931); Trinity Methodist Church v. FRC, 62 F.2d 850 (D.C. Cir. 1932).Google Scholar
  26. 27.
    395 U.S. at 389.Google Scholar
  27. 28.
    395 U.S. 444 (1969).Google Scholar
  28. 29.
    Schenck, 249 U.S. 47 (1919); Abrams, 250 U.S. at 624 (dissent); Gitlow, 268 U.S. At 672 (dissent).Google Scholar
  29. 30.
    Yates v. United States, 354 U.S. 298 (1957).Google Scholar
  30. 31.
    Gerald Gunther, Learned Hand and the Origins of the Modern First Amendment Doctrine, 27 Stan. L. Rev. 719 (1975).Google Scholar
  31. 32.
    Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)Google Scholar
  32. 33.
    All the gushing quotes come from Lucas A. Powe, Jr., the Warren Court and American Politics 333 (Belknap Press of Harvard Univ. Press 2000).Google Scholar
  33. 34.
    395 U.S. at 376.Google Scholar
  34. 35 Telecommunications Research & Action Center v. FCC, 801 F.2d 501, 508, reh’g denied, 806 F.2d 1115 (D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987).Google Scholar
  35. 36.
    Thomas G. Kraitenmaker & Lucas A. Powe, Jr., Regulating Broadcast Programming 204 (MIT/AEI Press, 1994).Google Scholar
  36. 37.
    NBC v. United States, 319 U.S. 190, 212 (1943).Google Scholar
  37. 38.
    NBC v. United States, 319 U.S. 190, 212 (1943). at 213.Google Scholar
  38. 39.
    395 U.S. at 388–89.Google Scholar
  39. 40.
    395 U.S. at 399.Google Scholar
  40. 41.
    Ronald J. Krotosynski, Jr., Into the Woods: Broadcasters, Bureaucrats, and Children’s Television Programming, 45 Duke L.J. 1193, 1207 (1996).Google Scholar
  41. 42.
    395 U.S. at 390.Google Scholar
  42. 43.
    395 U.S. at 390. at 389, 390.Google Scholar
  43. 44.
    376 U.S. 254 (1964). A chilling effect argument notes the obvious. A penalty for engaging in certain actions will produce fewer such actions as well as a reluctance to engage in conduct that might be classified as within the proscribed actions. In the context of the Fairness Doctrine, the chilling effect postulated that since programming about controversial issues was penalized, there would be less of it. And there was. See Regulating Broadcasting Programming at 237–75. Contrast “Talk Radio” after repeal of the Fairness Doctrine.Google Scholar
  44. 45.
    Tornillo, 418 U.S. 241.Google Scholar
  45. 46.
    That emergence is discussed in Powe, The Warren Court at 303–57.Google Scholar
  46. 47.
    205 U.S. 454 (1907).Google Scholar
  47. 48.
    Regulating Broadcast Programming at 180.Google Scholar
  48. 49.
    KFKB v. FRC, 47 F.2d 670, 672 (D.C. Cir 1931); Trinity Methodist Church v. FRC, 62 F.2d 850, 852 (D.C. Cir. 1932).Google Scholar
  49. 50.
    Lochner v. New York, 198 U.S. 45 (1905).Google Scholar
  50. 51.
    Zechariah Chafee, Law and Liberty in Freedom in the Modern World 98 (Horace M. Kallen ed., Coward-McCann. Inc. 1928).Google Scholar
  51. 52.
    Free Speech in the United States (Harvard Univ. Press 1941).Google Scholar
  52. 53.
    Carolene Products v. United States, 304 U.S. 144 (1938). Carolene Products, in its text and its famous “Footnote Four” suggested that the Court should not protect property rights, but should enforce the First Amendment, voting rights, and protect “discrete and insular minorities,” i.e., African-Americans and Jehovah’s Witnesses.Google Scholar
  53. 54.
    Free Speech in the United States at 361.Google Scholar
  54. 55.
    Free Speech in the United States at 361.Google Scholar
  55. 56.
    Mark A. Graber, Transforming Free Speech 159 (University of California Press 1991)Google Scholar
  56. 57.
    Mark A. Graber, Transforming Free Speech 159 (University of California Press 1991). at 161.Google Scholar
  57. 58.
    Chafee knew that misdistribution of economic resources biased the democratic process and wrote of “the increasing tendency for the most effective instrumentalities of communications to be bounded and shaped by persons who are often on one side of many public questions.” Zechariah Chafee, The Blessings of Liberty 108 (Lippincott 1956). Chafee’s willingness to advocate speech rights on the basis of arguments he knew were bogus is detailed as well in David Rabban, Free Speech in its Forgotten Years (Cambridge Univ. Press 1997).Google Scholar
  58. 59.
    Zechariah Chafee, The Blessings of Liberty 108 (Lippincott 1956).Google Scholar
  59. 60.
    319 U.S. 192 (1943).Google Scholar
  60. 62.
    319 U.S. at 226.Google Scholar
  61. 64.
    Justice Douglas did not participate.Google Scholar
  62. 65.
    395 U.S. at 400.Google Scholar
  63. 66.
    Lee Bollinger, Images of a Free Press 72 (University of Chicago Press 1991): The Court “reconceived the fundamental theoretical underpinnings … of the relationship between the press and government.”Google Scholar
  64. 68.
    Lee Bollinger, Images of a Free Press 72 (University of Chicago Press 1991). at 390.Google Scholar
  65. 70.
    Cohen v. California, 403 U.S. 15 (1971).Google Scholar
  66. 71.
    Young v. American Mini-Theaters, 427 U.S. 50 (1976).Google Scholar
  67. 72.
    438 U.S. at 746. They did not state what that reason was.Google Scholar
  68. 73.
    There were six, but the two important ones were Miller v. California, 413 U.S. 15 (1973) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).Google Scholar
  69. 74.
    Erznoznic v. City of Jacksonville, 422 U.S. 205 (1975).Google Scholar
  70. 75.
    Young v. American Mini-Theaters, 427 U.S. 50 (1976).Google Scholar
  71. 76.
    For a fuller discussion of the intersection of indecency and broadcasting see Regulating Broadcast Programming, Thomas G. Kraitenmaker & Lucas A. Powe, Jr., Regulating Broadcast Programming 204 (MIT/AEI Press, 1994), at 196–202.Google Scholar
  72. 78.
    Turner Broadcasting I, 512 U.S. at 638 n.5.Google Scholar
  73. 79.
    Turner Broadcasting I, 512 U.S. at 638 n.5. at 638, citing FCC v. League a/Women Voters, 468 U.S. 364, 376 n.11 (1984).Google Scholar
  74. 81.
    512 U.S. 622 (1994).Google Scholar
  75. 82.
    Tornillo, 418 U.S. 241.Google Scholar
  76. 83.
    512 U.S. at 649. See generally. Geoffrey R. Stone. Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983).Google Scholar
  77. 84.
    First Amendment doctrine now revolves around concepts of viewpoint neutrality and content neutrality. For those who do not follow the Court, the current doctrine operates as follows. Viewpoint-based regulations are virtually per se unconstitutional. Content-based regulations are presumptively unconstitutional unless coming within certain narrow, well-defined categories: illegal advocacy, obscenity, commercial speech, libel. Regulations not based on content are invariably valid. See note 104 City of Erie v. Pap’s A.M., 120 S.Ct. 1382, 1409 (2000) on the secondary effects doctrine.Google Scholar
  78. 85.
    Turner Broadcasting I, 512 U.S. at 639.Google Scholar
  79. 86.
    Turner Broadcasting I, 512 U.S. at 639. at 656.Google Scholar
  80. 87.
    Turner Broadcasting I, 512 U.S. at 639. at 639.Google Scholar
  81. 88.
    Turner Broadcasting I, 512 U.S. at 639. at 637–38: “We address first the Government's contention that regulation of cable television should be analyzed under the same First Amendment standard that applies to regulation of broadcast television. It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media. Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (television), and National Broadcasting Co. v. United States, 319 U.S. 190 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (print), and Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781 (1988) (personal solicitation). But the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable regulation. The justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium. See FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984); Red Lion, supra, at 388–389, 396–399; National Broadcasting Co., 319 U.S., at 226. As a general matter, there are more would-be broadcasters than frequencies available in the electromagnetic spectrum. And if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all. Id., at 212. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters. See FCC v. League of Women Voters, supra, at 377 (“The fundamental distinguishing characteristic of the new medium of broadcasting…is that [b]roadcast frequencies are a scarce resource [that] must be portioned out among applicants”) (internal quotation marks omitted); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 799 (1978). In addition, the inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees. Red Lion, 395 U.S., at 390. As we said in Red Lion, “[w]here 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.” Id., at 388; see also Columbia Broadcasting System, Inc. v. Democratic Nat’I Comm., 412 U.S. 94, 101 (1973).”Google Scholar
  82. 89.
    Turner Broadcasting I, 512 U.S. at 639. at 638 n.5.Google Scholar
  83. 90.
    Turner Broadcasting I, 512 U.S. at 639. at 650.Google Scholar
  84. 92.
    518 U.S. 727 (1996).Google Scholar
  85. 93.
    520 U.S. at 741–42.Google Scholar
  86. 94.
    520 U.S. at 755.Google Scholar
  87. 95.
    Sable Communications. Inc. v. FCC, 492 U.S. 115 (1989).Google Scholar
  88. 96.
    520 U.S. 742.Google Scholar
  89. 97.
    520 U.S. 742. at 741. Justice Breyer is serious as witnessed in his dissent in United States v. Playboy Entertainment Group where he would have allowed Congress to deal with a non-problem — minors watching a signal bleed from an adult channel before 10 p.m. — without any commensurate matching of the legislative remedy.Google Scholar
  90. 98.
    520 U.S. at 745.Google Scholar
  91. 99.
    520 U.S. at 744.Google Scholar
  92. 100.
    Accord, Denver Area, 518 U.S. at 759; Sable Communications, 492 U.S. at 128; Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983); Butler v. Michigan, 352 U.S. 380 (1957).Google Scholar
  93. 101.
    Sable Communications, 492 U.S. at 127.Google Scholar
  94. 102.
    390 U.S. 629 (1968).Google Scholar
  95. 103.
    475 U.S. 41 (1986).Google Scholar
  96. 104.
    Possibly the most absurd of the secondary effects cases is where the Court upheld Erie, Pennsylvania's ban on nude dancing (the women must wear pasties and g-strings) as a crime reduction measure. Justice Stevens's dissent wins the observation of the year award: the majority’s rationale was “a titanic surrender to the implausible.” City of Erie v. Pap’s A.M., 120 S.Ct. 1382, 1409 (2000).Google Scholar
  97. 105.
    521 U.S. at 867 quoting 438 U.S. 748.Google Scholar
  98. 106.
    521 U.S. at 869.Google Scholar
  99. 107.
    521 U.S. at 869.Google Scholar
  100. 108.
    521 U.S. at 867.Google Scholar
  101. 109.
    Erik Barnouw, in his history of broadcasting, uses 195 pages before he gets to the Radio Act of 1927. A Tower in Babel (Oxford Univ. Press 1966).Google Scholar
  102. 110.
    492 U.S. at 127.Google Scholar
  103. 111.
    United States v. Playboy Entertainment Group, 120 S.Ct. 1878 (2000).Google Scholar
  104. 115.
    512 U.S. at 656.Google Scholar
  105. 118.
    512 U.S. at 879.Google Scholar
  106. 119.
    Justice Souter expressed this when he stated that “in my own ignorance I have to accept the real possibility that ‘if we had to decide today … just what the First Amendment should mean in cyberspace … we would get it fundamentally wrong.’” Denver Area, 518 U.S. At 777.Google Scholar
  107. 120.
    Anyone interested in a rather unhappy demonstration of the point should read Frankfurter’s concurring opinion in Dennis v. United States, 34 I U.S. 494, 517 (1951) back to back with Justice Breyer’s majority opinion in Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000). Their language of deference — abdication, actually — to the legislature is beyond similar; it is virtually identical.Google Scholar
  108. 121.
    That, of course, is unconstitutional under standard First Amendment doctrine. Buckley v. Valeo, 424 U.S. 1 (1976).Google Scholar
  109. 122.
    “[W]e decide this case by closely scrutinizing [the statute) to assure that it properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech.” 518 U.S. at 743.Google Scholar
  110. 123.
    518 U.S. at 744.Google Scholar
  111. 124.
    Power is more extensively discussed in Regulating Broadcast Programming at 221–24.Google Scholar
  112. 126.
    L.A. Times, Jan. 11, 2000, at C11.Google Scholar
  113. 127.
    Ben H. Bagdikian, The Media Monopoly (Beacon Press, 1st ed. 1983).Google Scholar
  114. 128.
    The Media Monopoly. at ix (2d ed. 1987).Google Scholar
  115. 133.
    That appears to be how the Ninth Circuit saw the matter in AT&T v. City of Portland, 216 F.3d 871, 879 (9th Cir. 2000) holding that local governments did not have jurisdiction to order open access.Google Scholar
  116. 134.
    Regulating Broadcast Programming at 327.Google Scholar
  117. 135.
    William E. Lee, Open Access, Private Interests, and the Emerging Broadband Market (Cato Institute Policy Analysis No. 379, 2000) argues that it is not wise.Google Scholar
  118. 137.
    The conclusion of the district judge in AT&T v. City of Portland, 413 F. Supp. 2D 1146, 1154 (D.Or. 1999), rev’d 216 F. 3d 871 (9th Cir. 2000), that Turner Broadcasting was satisfied could simply not be possible on the record before him. Turner Broadcasting required a factual record far beyond the competence of the Mount Hood Cable Regulatory Commission to create.Google Scholar
  119. 138.
    Regulating Broadcast Programming at 224.Google Scholar
  120. 139.
    Even as enthusiastic a regulator as Cass Sunstein acknowledges that “[I]t is possible to think that before long, it will not make sense to impose regulatory requirements on CBS, NBC, ABC, and Fox, any more than it makes sense to impose regulatory requirements on Newsweek, Time, The New York Times, USA Today, National Review, or The New Republic.” He immediately notes that he has “argued against this conclusion.” Television and the Public Interest, 88 Calif. L. Rev. 499, 562 (2000).Google Scholar
  121. 140.
    512 U.S. at 649–50.Google Scholar
  122. 141.
    J.M. Balkin, Media Filters, the Vi-chip, and the Foundations of Broadcast Regulation, 45 Duke L.J. 1131 (1996).Google Scholar
  123. 142.
    Rowan v. Post Office, 397 U.S. 728, 738 (1970).Google Scholar
  124. 144.
    Pacifica; Osborne v. Ohio, 495 U.S. 103 (1990).Google Scholar
  125. 146.
    395 U.S. at 400.Google Scholar
  126. 149.
    FCC, Notice of Inquiry, Public Interest Obligations of TV Broadcast Licensees, 14 FCC Rcd 21633 (1999). “Free” air time for candidates is not exactly free. First, it is not free to broadcasters who are required to provide the subsidy to the candidate (or to the system in general). It is not free even to the candidates who, in order to participate, will be required to waive First Amendment rights related to campaign spending. Finally, it is not free to viewers who would prefer the programming the station would otherwise air. The migration of political broadcasting to cable may be lamentable, but unless broadcasters and cable operators are dumb, it reflects audience preferences. Thus it may be clear why politicians could be enthusiastic about free air time, but when Paul Taylor, the founder of Free TV for Straight Talk Coalition, asserts a “real hunger for political information,” it appears that a search looking for reality would find dieters instead. Lillian R. BeVier, Is Free TV for Federal Candidates Constitutional 49 (AEI Press 1998). Just try to find someone not professionally attached to politics who watched an Iowa or New Hampshire debate.Google Scholar
  127. 150.
    Wickard v. Filburn, 317 U.S. 111, 131 (1942).Google Scholar
  128. 151.
    Quoted in BeVier, Free TV at 11. See also Reed E. Hundt, The Public’s Airwaves: What Does the Public Interest Require of Television Broadcasters?, 45 Duke L.J. 1089 (1996).Google Scholar
  129. 152.
    BeVier, Free TV at 55.Google Scholar
  130. 153.
    Glen Robinson captures this perfectly. “[T[he public ownership claim here is a trope, a way of reifying the government’s claim to regulatory authority. The spectrum itself is simply a phenomenon produced by the transmission of electromagnetic energy through space ….[T]o say that [the government] owns the ‘airwaves’ is merely to give a property label to its regulatory powers….In common discourse the assertion of ownership is that assertion of a power that demands no further explanation. When it is said that the government (or the individual) can do something with its property because it ‘owns’ it, it is said by way of ending a conversation about the source of power and the reasons for acting.” Spectrum Property Law 101, 41 J.L. & Econ. 609, 620 (1998).Google Scholar
  131. 154.
    Professor BeVier wisely notes Takings Clause problems in the proposed regulations, but for purposes of my analysis, I am assuming that the requirements are placed on a licensee at the time of renewal of the license. BeVier, Free TV at 13–21.Google Scholar
  132. 155.
    BeVier, Free TV. at 38.Google Scholar
  133. 156.
    President Clinton thus claims that free television for candidates would restore the “broad confidence of the American people but also of the American press that comments upon it.” Clinton press conference, Mar. 11, 1997 quoted in BeVier, Free TV. at 42. The integrity of the democratic process, while overwhelmingly important, is a little hard to get a grip on since Americans vote, and losers abide the outcomes, peacefully leaving office when necessary, all of which seem to suggest the integrity of the process is well accepted. Specifics are necessary in order to know whether, say, keeping the polls open for another day or opting for cumulative voting might not be less restrictive alternatives in keeping democracy afloat. They turn out not to be because when specifics are requested, proponents claim that free air time will decrease the influence of money on politics, level the playing field, and elevate the quality of debate (by going beyond the hated thirty-second spots). These go to how we campaign, not how we vote. The specifics, of course, are also the rationales for campaign finance reform generally. What is different here is only that free air time has been added to the standard package of contribution and expenditure limitations.Google Scholar
  134. 157.
    Seemingly this would also authorize free advertising in the print media. But some constitutional rights are construed as not being subject to the compelling interest test and many core First Amendment rights are among them. Tornillo, 418 U.S. 241; Eugene Volokh, Freedom of Speech, Permissible Tailoring, and Transcending Strict Scrutiny, 144 U. Penn. L. Rev. 2417 (1996).Google Scholar
  135. 158.
    Buckley v. Valeo, 424 U.S. at 48–49.Google Scholar
  136. 159.
    FCC, Annual Assessment of the Status of Competition in Markets for Delivery of Video Programming, 15 FCC Rcd 978, 980-86 (2000).Google Scholar
  137. 160.
    Broadcasting & Cable Yearbook (2000).Google Scholar
  138. 161.
    “Media companies continue to offer increasing amounts of video over their Web sites in the expectation that the pictures will be acceptable for the intended use or eventually improve to broadcasting or VCR quality.” 15 FCC Red at 983-84, para. 15.Google Scholar
  139. 162.
    15 FCC Rcd. at 1031-32, para. 113.Google Scholar
  140. 163.
    United States v. Associated Press, 52 F. Supp. at 372.Google Scholar
  141. 164.
    Taking Turner Broadcasting at face value. But see text at note 518 U.S.Google Scholar

Copyright information

© Springer Science+Business Media New York 2001

Authors and Affiliations

  • L. A. PoweJr.
    • 1
  1. 1.University of Texas at AustinUSA

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