|Red Lion Broadcasting Co. v. Federal Communications Commission|
|Argued April 2-3, 1969|
Decided June 8, 1969
|Full case name||Red Lion Broadcasting Company, Incorporated, et al. v. Federal Communications Commission, et al.|
|Citations||395 U.S. 367 (more)|
|Prior||381 F.2d 908 (D.C. Cir. 1967); cert. granted, 389 U.S. 968 (1967);|
Radio Television News Directors Ass'n v. United States, 400 F.2d 1002 (7th Cir. 1968); cert. granted, consolidated, 393 U.S. 1014 (1969).
|The First Amendment permits a federal agency to formulate rules to allow persons defamed or potentially defamed access to equal time to respond and a fairness standard for editorial speech by broadcast radio stations.|
|Majority||White, joined by Warren, Black, Harlan, Brennan, Stewart, Marshall|
|Douglas took no part in the consideration or decision of the case.|
|U.S. Const. amend. I|
Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969), upheld the equal time provisions of the Fairness Doctrine, ruling that it was "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences." However, it strongly suggested that broadcast radio stations (and, by logical extension, television stations) are First Amendment speakers whose editorial speech is protected. In upholding the Fairness Doctrine, the Court based its rationale partly on a scarce radio spectrum.
The FCC, by administrative rulemaking, had required that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. As a result, the FCC added an "equal time rule" and a "response to personal attack" rule. Red Lion Broadcasting Co. challenged these rules as unconstitutionally infringing on the speech of the station's editorial judgment. Justice Byron White, writing for the majority, explained: "the FCC has included among the conditions of the Red Lion license itself the requirement that operation of the station be carried out in the public interest."
Petitioner: Red Lion Broadcasting Company, et al.
Respondent: Federal Communications Commission, et al.
Chief Lawyer for Petitioner: Roger Robb
Chief Lawyer for Respondent: Archibald Cox
Justices for the Court: Hugo Lafayette Black, William J. Brennan, Jr., John Marshall Harlan II, Thurgood Marshall, Potter Stewart, Earl Warren, Byron R. White (writing for the Court) Justices Dissenting: None (William O. Douglas did not participate)
The Supreme Court ruled unanimously in favor of the FCC and found the Fairness Doctrine to be constitutional. Justice White delivered the opinion of the Court and came to the conclusion that the federal government could place restrictions on broadcasters that could not be placed on ordinary individuals. He stated that "without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard." It was decided that even though broadcasting is a medium that is affected by the First Amendment, the differences in broadcasting justify differences in the application of the First Amendment.
Justice White also explained that it is the rights of the viewers and listeners that is the most important, not the rights of the broadcasters. The Court did not see how the Fairness Doctrine went against the First Amendments goal of creating an informed public. The Fairness Doctrine required that those who were talked about be given chance to respond to the statements made by broadcasters. The Court believed that this helped create a more informed public. Justice White explains that without this doctrine station owners would only have people on the air who agreed with their opinions
Throughout his opinion, Justice White discusses the scarcity of radio frequencies. He claims that these frequencies should be used to educate the public about controversial issues in a way that is fair and non-biased so they can create their own opinions.
"Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest.
In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional. The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA [US v. Radio Television News Directors Association] reversed and the causes remanded for proceedings consistent with this opinion."
The Federal Communications Commission (FCC) has for many years imposed on broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program which constituted a personal attack on one Cook (journalist Fred J. Cook), and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the FCC's position. After the commencement of the Red Lion litigation the FCC began a rule-making proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the Court of Appeals in RTNDA (No. 717), as abridging the freedoms of speech and press.
Held: 1. The history of the fairness doctrine and of related legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the FCC was implementing congressional policy. pp. 375-386.
(a) The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicant in the public interest, and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine. pp. 375-379.
(b) The FCC's statutory mandate to see that broadcasters operate in the public interest and Congress' reaffirmation, in the 1959 amendment to 315 of the Communications Act, of the FCC's view that the fairness doctrine inhered in the public interest standard, support the conclusion that the doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority. pp. 379-386.
2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. pp. 386-401.
(a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. pp. 386-390.
(b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. pp. 390-392.
(c) The danger that licensees will eliminate coverage of controversial issues as a result of the personal attack and political editorial rules is at best speculative, and, in any event, the FCC has authority to guard against this danger. pp. 392-395.
(d) There was nothing vague about the FCC's specific ruling in the Red Lion case and the regulations at issue in No. 717 could be employed in precisely the same way as the fairness doctrine in Red Lion. It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise. pp. 395-396.
(e) It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. pp. 396-400.
No. 2, 127 U.S. App. D.C. 129, 381 F.2d 908, affirmed; No. 717, 400 F.2d 1002, reversed and remanded