Broadcast Regulation

The history of Broadcast Regulation affords a unique civil liberties perspective because it is the sole example of a government agency created to supervise the press. That agency, the Federal Communications Commission (FCC), enforced specific statutory commands, such as the requirement to give equal time to candidates for elective office or suppressing indecency, as well as created its own, such as the ‘‘fairness doctrine’’ and the requirement to air local programming, based on its own notions of the public interest. All of these content regulations would have been unconstitutional if applied to the print media.

Until it was repealed in 1987, the fairness doctrine was the centerpiece of Broadcast Regulation. It required broadcasters to give adequate coverage to significant public issues and to ensure fair coverage that accurately presents conflicting viewpoints on those issues (although not necessarily in the same program). For years the FCC and the courts could not say enough good things about the fairness doctrine; it was, the Commission said, ‘‘the single most important requirement of operation in the public interest—the sine qua non for grant of renewal of license.’’ No station could avoid it as the FCC made clear when it rejected a defense that opposite sides of the issues in question were fully available on other stations in the area. The FCC then proceeded to strip the license from a Philadelphia station that aired more controversial programming than any other in that market. The FCC believed that each station acting as a market (airing something of everything) was superior to having stations differentiate themselves on the basis of content. It feared that listeners would stick with a single station and thus might not be as well informed as the Commission believed they should be.

In operation the fairness doctrine proved a failure. In the days before unique formats became common, most stations would automatically do what the fairness doctrine required so that the doctrine itself should have affected only those who did not wish to comply (and those who lacked the competency to comply). Because the doctrine was triggered by complaints, however, a station in compliance could nevertheless be forced to respond to the FCC. Indeed the more controversial issues that a station covered, the more likely it was to have a complaint filed against it. Responding to a complaint—taking time from management and possibly hiring a lawyer—constituted a tax on airing controversial programming. Yet airing such programming was what the FCC claimed it desired.

Supporters of the fairness doctrine claimed that its effects were exactly those stated in its purposes: fostering coverage of controversial issues. Its repeal put the lie to that assertion. Freed from the fairness doctrine, talk radio, with its controversies, became possible and flourished. Thus, occasionally a supporter of the fairness doctrine now laments its demise and pines for the days when radio was not ‘‘uninhibited, robust, and wide open,’’ and instead was tempered by the fairness doctrine. That, of course, is inconsistent with the premises of the First Amendment as articulated in New York Times v. Sullivan (1964).

In Red Lion Broadcasting v. FCC (1969), the Supreme Court upheld the constitutionality of the fairness doctrine. Like the FCC, the Court assumed that the doctrine was synonymous with its purposes. Further, the Court was blind to the fact that such a good doctrine could have a chilling effect on broadcast speech; if there were a chilling effect, then the FCC would take appropriate action to eliminate it.

Red Lion announced a trust hierarchy. At the top were viewers and listeners whose rights were paramount. At the bottom were broadcasters who were mere proxies for the greater good. In between were the FCC and the federal courts poised to require that broadcasters give the people their due.

The Court never knew the actual facts behind Red Lion. If the facts had come out, perhaps the Court would have understood that government oversight of broadcasting would operate just like the Court knows that government oversight of the print media would work. It would be partisan.

In 1963, the Democratic National Committee created an operation to monitor rightwing radio stations and harass them with equal time and fairness doctrine complaints. The expressed hope was ‘‘that challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.’’ The monitoring did not cease with the 1964 elections and that picked up Red Lion’s supposed transgression. The station, accurately sensing that it was being harassed, fought back—and lost unanimously to a Court that was sure broadcasting was unique and that the FCC was promoting the public interest.

For almost every attempt by the FCC to coerce or coax diverse programming, there is an opposite one to mandate or persuade conformity. Thus, fresh from its success in Red Lion, the FCC turned on popular music attempting to rid the airwaves of songs that it believed promoted the drug culture (even though such songs had peaked three years previously and the phenomenon was subsiding). A ‘‘do not play’’ list of twenty-two songs was produced by the Broadcast Bureau. Included were ‘‘Lucy in the Sky with Diamonds’’ and ‘‘With a Little Help from my Friends’’ by the Beatles as well as ‘‘Truckin’’ by the Grateful Dead. Some panicked stations ceased playing ‘‘Puff, the Magic Dragon’’ by Peter, Paul, and Mary.

The Commission’s attention soon wandered to other issues—specifically sex and violence. Sometimes with censorship, sometimes with jawboning, the Commission attempted to return radio and television to the cultural standards of an earlier era. Like most attempts to move culture backward, this effort failed.

It has been over two decades since the Supreme Court last decided a broadcast case. Its discussions of Broadcast Regulation in cases involving cable and the Internet indicate that the Court recognizes its embrace of FCC actions was mistaken. Freedom of speech and the press will not blossom in an environment of government supervision. The Court knew that; Broadcast Regulation has proved it again.

SCOT POWE

References and Further Reading

• Krattenmaker, Thomas G., and Lucas A. Powe, Jr. Regulating Broadcast Programming. Cambridge, MA: MIT Press; Washington, D.C.: AEI Press, 1994
• Powe, Lucas A., Jr. American Broadcasting and the First Amendment. Berkeley: University ofCalifornia Press, 1987
• Spitzer, Matthew. Seven Dirty Words and Six Other Stories. New Haven, Conn.: Yale University Press, 1986

Cases and Statutes Cited

• New York Times v. Sullivan, 376 U.S. 254 (1964) 
• Red Lion Broadcasting v. Federal Communications Commission, 395 U.S. 367 (1969)