Radio Censorship

Definition: A long-range mass communication medium of sound signals sent on electromagnetic carrier waves

Significance: Radio has traditionally been more regulated—censored—by the government than books

Radio broadcasting has been allowed First Amendment protection, but the government has taken the position that radio’s special characteristics demand not only the regulation of the technical aspects of radio but of its content as well. The special characteristics of radio include that it operates across public space; that it travels through private space uninvited; and that it operates on given frequencies, of which there have been, arguably, a limited number. These public concerns have justified the greater amount of censorship that radio has had in comparison to print media, which does not have radio’s special characteristics.

Aside from its frequency allocation and licensing functions, the Federal Communications Commission (FCC) is mandated to supervise the ongoing operations of its broadcast licensees. A certain amount of that supervision involves technical matters such as frequency and power level, but the commission also has the authority to regulate the content of radio programming.

No government agency has the authority to tell newspaper and magazine publishers to print a specific amount or kind of material or to provide access to their columns for those with whom they disagree. Many radio broadcasters argue that no government agency should have the authority to control the content of broadcasting either.

Spectrum scarcity has been the most common rationale for the FCC’s instituting a number of content-based regulations for radio. Supporters of broadcast content regulation argued that there simply was not enough frequency space for everyone to have a voice on the airwaves. Therefore, the FCC was given the power to regulate radio broadcasting in the public interest by requiring broadcast stations to air certain types of programs and to cover all sides of controversial issues.

Broadcasters who support having full First Amendment rights argue that spectrum scarcity was a legitimate concern during the days when only a few broadcast signals were available, but with the emergence of media outlets such as multichannel cable, direct home-to-satellite links, and Internet radio, spectrum scarcity has ceased to be an issue.

Broadcast Content Regulations

Although section 326 of the 1934 Communications Act forbids the FCC to censor broadcasters, the commission has adopted a variety of rules to regulate broadcast content. Also, the Communications Act itself and other federal laws set forth rules governing the content of radio programming.

By the 1980s, the FCC had changed its stance toward regulating broadcast content. The FCC began to move away from treating radio broadcasters as second-class citizens when it came to the First Amendment. It no longer believed it was in the public interest to dictate to radio stations the types of information they should provide to their audiences. Instead, the commission decided that the public interest would best be served by deregulating broadcasting and allowing the marketplace or economic forces to determine what type of programming a radio station would air.

As part of its deregulation efforts, the FCC abolished most of its broadcast content-related regulations. In 1987 the commission abolished its most controversial content regulation, the Fairness Doctrine, which required broadcasters to devote an unspecified amount of time to controversial issues of community importance and to devote time to all significant points of view concerning those issues. The US Supreme Court in its 1969 Red Lion Broadcasting Co. v. Federal Communications Commission decision had affirmed the constitutionality of the fairness doctrine, but an appeals court later ruled that the fairness doctrine was nothing more than an FCC policy—not a law codified by Congress. Therefore, the FCC had the authority to repeal the fairness doctrine in 1987.

The commission also abandoned its 1971 ascertainment policy in which broadcast stations must interview community leaders to determine what issues needed to be addressed in their programming. The commission also repealed its guidelines for nonentertainment (news) programming and advertising.

A number of restrictions on broadcast content are still in force, restrictions that do not apply to most other media. Some of those content-based regulations apply to providing access for candidates running for public office.

Political Broadcasting

The key provision regarding political broadcasting is section 315 of the Communications Act, often called the equal time rule or the equal opportunity provision. Section 315 requires broadcasters to provide equal access to airwaves to all legally qualified candidates for a given public office during election campaigns.

Section 315 does not require broadcasters to give politicians free time or campaign advertising. Rather, it merely requires that all candidates for the same election be treated equally. If one candidate is sold airtime for a certain fee, then the equal time rule merely requires that other candidates in the same election be allowed to purchase equal time in the same part of the broadcast day for the same price. According to section 315, if one candidate is given free airtime, then all other candidates for the same office must also be given free airtime. Bona fide newscasts, news interviews, news documentaries, news and public affairs programs, and coverage of news events such as political conventions and debates between candidates are exempt from the equal opportunity provision.

In order to prevent radio broadcasters from meeting the equal time requirement by simply excluding all political advertising, the Communications Act places an additional requirement on broadcasters. Section 312(a)(7) gives the FCC the power to revoke a broadcaster’s license if that broadcaster fails to provide reasonable access to candidates in federal elections. The broadcast networks challenged the constitutionality of section 312 in court, and the U.S. Supreme Court upheld the commission’s authority under section 312 to order broadcasters to air federal candidates’ political statements. The Supreme Court majority ruled that the First Amendment rights of candidates and the public outweighed the First Amendment rights of broadcasters during an election.

Indecent Language

From the beginning of government regulation of radio, the broadcast of obscene, indecent, or profane language has been prohibited. The FCC has the power to revoke any broadcast license if the licensee transmits indecent material over the airwaves. Indecent language is any material that is not legally obscene but too sexual, shocking, offensive, or vulgar for children to hear. Unlike obscenity, which has no First Amendment protection, indecency is constitutionally protected speech. This distinction was clarified by the US Supreme Court.

Although indecent programming is protected by the First Amendment, the government may impose carefully tailored regulations to protect children from indecency.

The 1978 US Supreme Court decision in Federal Communications Commission v. Pacifica Foundation supported the FCC’s ban on comedian George Carlin’s monologue about the seven dirty words that cannot be said on radio. This decision represents the US Supreme Court’s break from the scarcity rationale. In justifying its decision, the Supreme Court did not state that because broadcasting was scarce it was improper to hear Carlin’s monologue; instead, the Court ruled that radio was an “intruder” in the home, “uniquely pervasive,” and “uniquely accessible to children.”

In an effort to control indecent language on the airwaves, the FCC had issued a twenty-four-hour ban on indecent broadcasts. An appeals court, however, struck down the twenty-four-hour indecency ban and ordered the commission instead to establish a “safe harbor”—a period during which the number of children in the audience is small and broadcasters may air indecent programming.

The rise of Internet radio and similar music-streaming services added new considerations to radio censorship. Most such services are not required to censor music at any time of day, although many offer optional profanity filters. Technology company Apple created a minor controversy when it censored some content on its Beats 1 worldwide radio station, an online program also broadcast live in certain markets, despite the lack of FCC regulation.

Hoaxes

Actor Orson Welles once led a special radio broadcast of H. G. Wells's War of the Worlds, about the invasion of Earth by Martians. In Welles’s program, music was interrupted by authentic-sounding news bulletins that terrified millions of people, especially near the Martians’ purported landing site in New Jersey. The story was intended as a radio drama, but many listeners believed the Earth was really being invaded by Martians. As a result of the panic caused by the realistic format of Orson Welles’s radio program, the FCC adopted a policy that radio dramas could not portray themselves as radio newscasts.

In 1992 the FCC adopted a new rule restricting hoaxes. The rule was enacted in response to several widely publicized incidents in which radio stations reported fake events. For example, a station in St. Louis reported during the Persian Gulf War that the United States was under nuclear attack; a Virginia station reported that a large waste dump was about to explode. The potential dump explosion created a panic similar to the one caused by Orson Welles’ broadcast.

The FCC responded to the radio hoaxes by banning broadcast fabrications about crimes and catastrophes that cause substantial harm to public health and welfare. The FCC’s response to banning radio hoaxes illustrates the limited First Amendment rights of broadcasters and raises a variety of censorship issues.

Lotteries, Gambling, and Advertising

United States law and the FCC forbid the broadcasting of material that promotes gambling. Government-run and charitable lotteries may be legally advertised, however, as may promotions and prize drawings by businesses other than casinos. Under the 1988 Charity Games Advertising Clarification Act only casinos and others whose gambling is an end in itself are forbidden to advertise under federal law.

The 1998 federal law left the states free to restrict or ban lotteries and lottery advertising even if the advertising would be legal under federal law. For example, the US Supreme Court has ruled that a broadcaster in a non-lottery state cannot carry advertising for a nearby state’s lottery, even if it has a large audience there.

Radio broadcasters are also subject to other laws that govern advertising in general. For example, the federal Truth in Lending Act requires full disclosure of all credit terms for loans. These required disclosures, however, are sometimes so detailed that they cannot be squeezed into a short radio commercial.

Format Changes

The FCC also has become involved in content regulation when a radio station proposes to change a unique programming format. During the 1970s, the only classical music stations in several cities tried to abandon their classical format, triggering protests by classical music lovers. Classical music lovers feared that minority tastes would not be served if all broadcasters were free to tailor their programming for the audiences that are most attractive to advertisers.

After a series of federal court decisions, the FCC began to review format changes when the proposed change would result in the abandonment of a unique format and produce widespread protests. In 1981 in Federal Communications Commission v. WNCN Listeners Guild the US Supreme Court ruled that the FCC had the right not to interfere in broadcast format disputes. The Court said entertainment programming was within the broadcaster’s discretion. The Supreme Court decision was a victory for the radio broadcast industry, which has wanted market forces, and not the FCC, to dictate format decisions.

Bibliography

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Donahue, Hugh C. The Battle to Control Broadcast News: Who Owns the First Amendment? Cambridge: MIT P, 1989. Print.

Klinkenberg, Brendan. "Apple's Beats 1 Radio is Censoring Music." BuzzFeed News. BuzzFeed, 30 June 2015. Web. 17 Nov. 2015.

"Obscene, Indecent, and Profane Broadcasts." FCC. Federal Communications Commission, n.d. Web. 17 Nov. 2015.

Smartt, Ursula. Media & Entertainment Law. New York: Routledge, 2014. Web. 17 Nov. 2015.

Sweeney, Michael S. Secrets of Victory: The Office of Censorship and the American Press and Radio in World War II. Chapel Hill: U of North Carolina P, 2001. Print.