Broadcast media and censorship

Definition: Radio, television, and cable communications

Significance: The most pervasive form of communications in the late twentieth century, the broadcast media have been the target of numerous efforts to regulate content

The United States government played a pivotal role in the birth of radio, television, and cable broadcasting and took a paternalistic interest in their growth and development. From an economic and technological standpoint, the government’s role in promoting these new industries was beneficial and served the national interest. From a First Amendment perspective, however, unwarranted governmental censorship of broadcasting poses a serious and persistent threat to freedom of expression.

Fairness

In 1964 a Pennsylvania radio station, WGCB, carried a fifteen-minute broadcast, the “Christian Crusade,” in which the Reverend Billy James Hargis accused Fred J. Cook, author of Barry Goldwater: Extremist of the Right (1964), of working for a communist-affiliated publication and of sympathizing with Alger Hiss. Invoking the personal-attack rule contained in the Communications Act of 1934, Cook demanded free reply time but was denied. When the Federal Communications Commission (FCC) concluded that the station had failed to meet its obligations under the Fairness Doctrine, WGCB went to court.

Ultimately, in Red Lion Broadcasting Co. Inc. v. Federal Communications Commission (1969), the US Supreme Court, in a unanimous opinion, held that the personal-attack aspect of the Fairness Doctrine did not abridge the freedoms of speech or press. The Court found that the Fairness Doctrine was an “obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory requirement of Section 315 of the Communications Act that equal time be allotted all qualified candidates for public office.” The Court articulated the often-repeated public-interest standard in justifying government regulation of broadcasting content. “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 . . . we think the fairness doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority.” Adopting the view that spectrum scarcity (there are only so many broadcast frequencies available; therefore, issues of public interest can influence private use of said frequencies) also justified government regulations, the Court observed that “licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them.”

Critics of the Red Lion decision argue that neither the public interest nor spectrum scarcity rationales justify affording radio and television broadcasting less First Amendment protection than the print media. The value of “vigorous debate of controversial issues of importance and concern to the public” is not unique to broadcasting. Newspapers, magazines, books, and films also serve that purpose, yet few, if any, would tolerate government-imposed standards of “fairness” on those forms of expression.

Likewise, the notion that since there are only a limited number of radio and television frequencies available, the government must allocate them in such a manner as to ensure a “diversity of viewpoints,” has been criticized as scientifically flawed and unwise public policy. Technically, critics argue, there is no spectrum, only transmitters and receivers of electromagnetic energy. Signals do not interfere with each other in space, they interfere with each other in receivers, which have limited capacity to differentiate between modulations. As technology becomes more sophisticated, the number of channels expands, thereby enlarging the so-called spectrum, allowing for diversity to emerge naturally, not by government fiat.

Furthermore, critics of the spectrum-scarcity argument point out that taken to its logical conclusion, scarcity could be used to justify the censorship of the print media as well. Newsprint, presses, distribution trucks, newsstands, and so on are by one standard or another scarce, as are bookstores and movie theaters. If limitations on the delivery or transportation of a means of expression can thereby justify greater government regulation, all media is in jeopardy.

Thus, issues of censorship relating to the broadcast media are seen as part and parcel of broader censorship issues. Precedents established in one area can bleed over into another. Telecommunications technologies involving computers have merged the print and electronic media. Many newspapers are now transmitted by satellite. The Court has decided little on which First Amendment model will prevail in such cases. There is the print model, affording maximum protection for freedom of expression, and there is the broadcast model, allowing for greater government regulation.

Seven Dirty Words

On the afternoon of October 30, 1973, New York radio station WBAI, owned by the Pacifica Foundation, broadcast George Carlin’s “Filthy Words” monologue. A few weeks later, a listener who said he heard the program while driving with his young son wrote a complaint to the FCC. On February 21, 1975, the FCC issued a declaratory order granting the complaint. The order became part of the station’s license file. The FCC stated, “We therefore hold that the language as broadcast was indecent and prohibited by 18 U.S.C. [section] 1464.” The FCC decision was reversed by the Court of Appeals for the District of Columbia. Each of the appellate judges wrote separately. Judge Edward Allen Tamm concluded that the order represented censorship and was prohibited by the Communications Act, Section 326. Judge David L. Bazelon rested his view on the Constitution. Judge Harold Leventhal, in dissent, emphasized the interest in protecting children and said that the FCC had correctly condemned the daytime broadcast as indecent. The case went to the Supreme Court, in a 5-4 opinion, ruled for the FCC.

The Court’s decision in Federal Communications Commission v. Pacifica Foundation (1978) was limited to the FCC’s determination that the Carlin monologue was indecent as broadcast within the meaning of 18 United States Code (U.S.C.) section 1464, which bars the broadcast of “any obscene, indecent, or profane language.” Addressing the Communications Act’s prohibition of program censorship (a different law, 47 U.S.C. section 326), the Court said that the FCC is barred from editing a proposed broadcast in advance but that the law had never been construed to deny the commission the power to review the content of completed broadcasts in the performance of its regulatory duties. The Court found the content of the monologue to be vulgar, offensive, and shocking and argued that the commission’s order was not unconstitutional under the First Amendment, either because of being overly broad or because the monologue was not obscene. On the question of whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content, the Court said that case law showed that obscene materials had been denied protection because their content is “so offensive to contemporary moral standards.” It noted that because of its characteristics of being received in the home, broadcasting had traditionally received the least First Amendment protection of all media. “Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. The ease with which children may obtain access to broadcast material . . . amply justifies special treatment of indecent broadcasting.” The Court concluded, “We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

Separately, Justice Lewis Franklin Powell Jr., joined by Justice Harry Andrew Blackmun, concurred but disagreed with the plurality that Supreme Court justices were free to decide on the basis of content which protected speech was deserving of more or less protection. “The result turns instead on the unique characteristics of the broadcast media, combined with society’s right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes.”

In dissent, Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, stated that such factors—intrusiveness and children in the audience—“simply do not support even the professedly moderate degree of governmental homogenization of radio communications—if, indeed, such homogenization can ever be moderate given the pre-eminent status of the right of free speech in our constitutional scheme—that the Court today permits.” Also dissenting, Justice Potter Stewart, joined by Justices Brennan, Marshall, and Byron R. White, expressed the view that since the monologue was not obscene, the FCC lacked statutory authority to ban it.

The Right to Editorialize

In 1984 First Amendment protection for political speech proved strong enough to defeat a congressional effort to ban editorializing by public broadcasting stations. At issue was section 399 of the Public Broadcasting Act of 1967 forbidding any noncommercial educational station that received funding from the Corporation for Public Broadcasting to “engage in editorializing.” The Pacifica Foundation, which owned five such stations, joined by the League of Women Voters of California and Congressman Henry Waxman, filed a legal challenge to section 399. The US Supreme Court found the law unconstitutional in Federal Communications Commission v. League of Women Voters (1984). According to Justice John Paul Stevens: “Pacifica wants to broadcast its views to Waxman via its radio stations; Waxman wants to listen to those views on his radio; and the League of Women Voters wants a chance to convince Pacifica to take positions its members favor in its radio broadcasts.”

Justice Brennan wrote the Court’s 5–4 majority decision. He noted that section 399 appeared to restrict precisely that form of speech that the framers of the Bill of Rights considered “indispensable to the discovery and spread of political truth.” He reiterated that because of spectrum scarcity (the viability of which he elsewhere questioned), those who are awarded a broadcast license can be required to provide programming that serves the public interest. Given the fact that there are hundreds of public radio and television stations throughout the country, he wrote, “it seems reasonable to infer that the editorial voices of these stations will prove to be as distinctive, varied, and idiosyncratic as the various communities they represent. Accordingly, absent some showing by the Government to the contrary, the risk that local editorializing will place all of public broadcasting in jeopardy is not sufficiently pressing to warrant [section] 399’s broad suppression of speech.”

In dissent, Justice William H. Rehnquist, joined by Justices White and Warren E. Burger, said that Congress had not violated the First Amendment when it decided that public funds shall not be used to subsidize noncommercial educational broadcasting stations that engage in editorializing or endorse or oppose any political candidate. It is impossible to separate programming expenses from other expenditures, so Justice Rehnquist said that the only effective means of preventing the use of public money to subsidize the airing of management’s views is for Congress to ban a subsidized station from all on-the-air editorializing. Justice Stevens, in a separate dissent, said that the statute was proper because of the overriding interest in forestalling creation of propaganda organs for the government: “One need not have heard the raucous voice of Adolf Hitler over Radio Berlin to appreciate the importance of that concern.”

New Technologies

The Communications Decency Act of 1996 prohibited the transmission by any means of telecommunications of obscene or “indecent” material to anyone under eighteen years of age or the use of interactive computer services to display, “in a manner available” to a person under eighteen years of age, any material that “depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” The act was immediately challenged in court on the grounds that the terms “indecent” and “patently offensive” are unconstitutionally vague and improperly sweep a wide variety of protected speech within their prohibitory scope.

Broadcasting is an easy target of censorship since there is already in place an established bureaucracy capable of enforcing any regulation enacted by Congress. Whether broadcasting will escape censorship depends on whether Congress and the courts apply broad First Amendment principles developed for the print media, such as books, newspapers, and magazines, or the more limited protections afforded radio and television.

Bibliography

Diamond, Edwin, Norman Sandler, and Milton Mueller. Telecommunications in Crisis: The First Amendment, Technology, and Deregulation. Washington: Cato Inst., 1983. Print.

Hixson, Richard F. Mass Media and the Constitution: An Encyclopedia of Supreme Court Decisions. New York: Garland, 1989. Print.

Smith, F. Leslie, John W. Wright II, and David H. Ostroff. Perspectives on Radio and Television: Telecommunication in the United States. 4th ed. Mahwah: Erlbaum, 1998. Print.

Smolla, Rodney A. Free Speech in an Open Society New York: Knopf, 1992. Print.