Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)

Over-the-air radio and television broadcasters receive generally fewer constitutional safeguards than their counterparts in printed media. This disparity in First Amendment jurisprudence originated in the 1969 case of Red Lion Broadcasting Co. v. FCC. That decision upheld the Federal Communications Commission’s (FCC) fairness doctrine, which comprised two distinct rules. The ‘‘personal attack’’ rule required an FCClicensed broadcaster to offer an opportunity to respond to any public figure who had been personally attacked during a broadcast. The ‘‘political editorializing’’ rule required a broadcaster who endorsed or opposed a political candidate to offer reply time to all disfavored candidates.

Red Lion upheld the fairness doctrine. Mindful of physical limits on the extent of the electromagnetic spectrum, Justice Byron White observed that ‘‘only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time.’’ This scarcity, held the Court, justified limits on the First Amendment rights of broadcasters: ‘‘Where there are substantially more individuals who want to broadcast than there are frequencies to allot, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.’’

The Supreme Court has never upheld a right-ofreply regime of the sort at issue in Red Lion in any context outside broadcasting. Five years later, in a decision that did not cite Red Lion, the Supreme Court in Miami Herald Publishing Co. v. Tornillo (1974) invalidated a state right-of-reply law that was functionally identical to the fairness doctrine at issue in Red Lion. The Tornillo Court found that a compulsory right of reply impermissibly impaired the editorial freedom of newspaper publishers. In the 1998 case of Arkansas Educational Television Commission v. Forbes, the Court observed that ‘‘broad rights of access for outside speakers’’ to nonbroadcast facilities are ‘‘antithetical’’ to publishers’ constitutional rights. In a 1987 proceeding called In re Syracuse Peace Council, the FCC repealed the fairness doctrine as a matter of administrative law.

The scarcity rationale that justified Red Lion’s endorsement of the fairness doctrine has faced withering criticism in lower court decisions and in the academic literature. Every communicative medium is scarce in the sense that not every willing speaker will have access. The ‘‘analytical confusion’’ that has surrounded Red Lion’s scarcity rationale, as Judge Robert Bork observed in 1986, arises from the Supreme Court’s fruitless ‘‘attempt to use a universal fact as a distinguishing principle.’’

Although broadcasters are no longer required to follow the fairness doctrine, Red Lion retains enormous importance within free speech jurisprudence. Together with the 1943 case of National Broadcasting Co. v. United States, Red Lion stands for the proposition that ‘‘differences in the characteristics of new media justify differences in the First Amendment standards applied to them.’’ This endorsement of medium- specific approaches to the First Amendment all but dictated the Supreme Court’s decision to uphold a ‘‘must-carry’’ regime for cable television in the Turner Broadcasting System, Inc. v. FCC controversy. As illustrated in the 1996 case of Denver Area Educational Telecommunications Consortium, Inc. v. FCC and in the 2000 case of United States v. Playboy Entertainment Group, Inc., however, the Supreme Court has never equated the constitutional status of cable television with that of broadcasting. Nor has the Court used Red Lion to justify a reduction in constitutional protection for sexually explicit speech on the Internet. Indeed, the Court has blocked full enforcement of the Communications Decency Act of 1996 and the Child Online Protection Act of 1998 on constitutional grounds.

Perhaps Red Lion’s most enduring legacy is its blueprint for judicial evaluation of novel communications conduits. As summarized in the 1997 case of Reno v. ACLU, which invalidated the Communications Decency Act, Red Lion invites courts to examine the history of regulation within a particular medium (such as conventional broadcasting, cable television, or the Internet), the scarcity of available channels for expression, and the extent to which a medium has an ‘‘invasive’’ impact on its audience. Despite the limited reach of the so-called ‘‘broadcast model’’ of free speech jurisprudence and the decline of the fairness doctrine, Red Lion can be expected to figure prominently in any case that contests the constitutional status of a new communications medium for the first time.

JIM CHEN

References and Further Reading

• Benjamin, Stuart Minor, The Logic of Scarcity: Idle Spectrum as a First Amendment Violation, Duke Law Journal 52 (2002): 1.
• Bloch, Susan Low, Orphaned Rules in the Administrative State: The Fairness Doctrine and Other Orphaned Progeny of Interactive Deregulation, Georgetown Law Journal 76 (1987): 59.
• Chen, Jim, Conduit-Based Regulation of Speech, Duke Law Journal 54 (2005).
• ———, Liberating Red Lion from the Glass Menagerie of Free Speech Jurisprudence, Telecommunications and High Technology Law Journal 1 (2002): 293.
• Robinson, Glen O., The Electronic First Amendment: An Essay for the New Age, Duke Law Journal 47 (1998): 899.
• Van Alstyne, William W., The Mo¨bius Strip of the First Amendment: Perspectives on Red Lion, South Carolina Law Review 29 (1978): 539.
• Weinberg, Jonathan, Broadcasting and Speech, California Law Review 81 (1993): 1103.
• Yoo, Christopher S., The Rise and Demise of the Technology- Specific Approach to the First Amendment, Georgetown Law Journal 91 (2003): 245.

Cases and Statutes Cited

• Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998)
• Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996)
• In re Syracuse Peace Council, 2 F.C.C.R. 5043 (1987)
• Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)
• National Broadcasting Co. v. United States, 319 U.S. 190 (1943)
• Reno v. ACLU, 521 U.S. 844 (1997)
• Telecommunications Research & Action Center v. FCC, 801 F.2d 501 (D.C. Cir. 1986) (Bork, J.)
• Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)
• Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997)
• United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)

See also Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Turner Broadcasting Sys. Inc. v. FCC (Turner I), 512 U.S. 622 (1994); 520 U.S. 180 (1997) (Turner II)