More on the FD

[Garrett Wollman]

<<On Sat, 28 Feb 2009 16:33:18 -0500, "Dan Billings" <billings@suscom-maine.net> said:

> If someone complained that a broadcaster did not cover an issue of 
> importance in a balanced and equitable way, the government would decide if 
> that was true or not.

I hope it won't hurt to introduce some actual facts here....

The Communications Act (as amended in 1959) required -- and indeed
still requires -- that broadcasters "afford reasonable opportunity for
the discussion of conflicting views of public importance" (47 USC
315(a)).

Meanwhile, section 328 of the Communications Act (as codified today at
47 USC 326) made it clear:

	Nothing in this chapter shall be understood or construed to
	give the Commission the power of censorship over the radio
	communications or signals transmitted by any radio station,
	and no regulation or condition shall be promulgated or fixed
	by the Commission which shall interfere with the right of free
	speech by means of radio communication.

The FCC, in its implementation of this principle, required that
broadcasters notify the subjects of broadcast attacks "upon the
honesty, character, integrity or like personal qualities of an
identified person or group" and offer a "reasonable opportunity to
respond".  This requirement did not apply to news programming, even
"commentary or analysis" segments of such programs, but did apply to
"editorials of the licensee" (47 CFR 73.123, in effect as of 1978).

Justice White summarized the situation for the Supreme Court in /Red
Lion/ (internal citations omitted):

	There is a twofold duty laid down by the FCC's decisions and
	described by the 1949 Report on Editorializing by Broadcast
	Licensees.  The broadcaster must give adequate coverage to
	public issues, and coverage must be fair in that it accurately
	reflects the opposing views.  This must be done at the
	broadcaster's own expense if sponsorship is unavailable.
	Moreover, the duty must be met by programming obtained at the
	licensee's own initiative if available from no other source.
	The Federal Radio Commission had imposed these two basic
	duties on broadcasters since the outset, and in particular
	respects the personal attack rules and regulations at issue
	here have spelled them out in greater detail.

	[...]

	In 1959 the Congress amended the statutory requirement of 315
	that equal time be accorded each political candidate to except
	certain appearances on news programs, but added that this
	constituted no exception "from the obligation imposed upon
	them under this Act to operate in the public interest and to
	afford reasonable opportunity for the discussion of
	conflicting views on issues of public importance."  This
	language makes it very plain that Congress, in 1959, announced
	that the phrase "public interest," which had been in the Act
	since 1927, imposed a duty on broadcasters to discuss both
	sides of controversial public issues. In other words, the
	amendment vindicated the FCC's general view that the fairness
	doctrine inhered in the public interest standard.

He later writes, in his analysis of the First Amendment issue:

	By the same token, as far as the First Amendment is concerned
	those who are licensed stand no better than those to whom
	licenses are refused.  A license permits broadcasting, but the
	licensee has no constitutional right to be the one who holds
	the license or to monopolize a radio frequency to the
	exclusion of his fellow citizens.  There is nothing in the
	First Amendment which prevents the Government from requiring a
	licensee to share his frequency with others and to conduct
	himself as a proxy or fiduciary with obligations to present
	those views and voices which are representative of his
	community and which would otherwise, by necessity, be barred
	from the airwaves.

His reasoning seems rather odd by modern standards, because we are so
accustomed to the modern reading of the First Amendment as being a
purely individual right:

	This is not to say that the First Amendment is irrelevant to
	public broadcasting.  On the contrary, it has a major role to
	play as the Congress itself recognized in [section] 326, which
	forbids FCC interference with "the right of free speech by
	means of radio communication."  Because of the scarcity of
	radio frequencies, the Government is permitted to put
	restraints on licensees in favor of others whose views should
	be expressed on this unique medium.  But the people as a whole
	retain their interest in free speech by radio and their
	collective right to have the medium function consistently with
	the ends and purposes of the First Amendment.  It is the right
	of the viewers and listeners, not the right of the
	broadcasters, which is paramount.  It is the purpose of the
	First Amendment to preserve an uninhibited market-place of
	ideas in which truth will ultimately prevail, rather than to
	countenance monopolization of that market, whether it be by
	the Government itself or a private licensee.  It is the right
	of the public to receive suitable access to social, political,
	esthetic, moral, and other ideas and experiences which is
	crucial here. That right may not constitutionally be abridged
	either by Congress or by the FCC.

	Rather than confer frequency monopolies on a relatively small
	number of licensees, in a Nation of 200,000,000, the
	Government could surely have decreed that each frequency
	should be shared among all or some of those who wish to use
	it, each being assigned a portion of the broadcast day or the
	broadcast week.  The ruling and regulations at issue here do
	not go quite so far.  They assert that under specified
	circumstances, a licensee must offer to make available a
	reasonable amount of broadcast time to those who have a view
	different from that which has already been expressed on his
	station.  The expression of a political endorsement, or of a
	personal attack while dealing with a controversial public
	issue, simply triggers this time sharing. As we have said, the
	First Amendment confers no right on licensees to prevent
	others from broadcasting on "their" frequencies and no right
	to an unconditional monopoly of a scarce resource which the
	Government has denied others the right to use.

	[...]

	Nor can we say that it is inconsistent with the First
	Amendment goal of producing an informed public capable of
	conducting its own affairs to require a broadcaster to permit
	answers to personal attacks occurring in the course of
	discussing controversial issues, or to require that the
	political opponents of those endorsed by the station be given
	a chance to communicate with the public.  Otherwise, station
	owners and a few networks would have unfettered power to make
	time available only to the highest bidders, to communicate
	only their own views on public issues, people and candidates,
	and to permit on the air only those with whom they agreed.
	There is no sanctuary in the First Amendment for unlimited
	private censorship operating in a medium not open to all.
	"Freedom of the press from governmental interference under the
	First Amendment does not sanction repression of that freedom
	by private interests." Associated Press v. United States, 326
	U.S. 1, 20 (1945).

	[...]

	We need not and do not now ratify every past and future
	decision by the FCC with regard to programming.  There is no
	question here of the Commission's refusal to permit the
	broadcaster to carry a particular program or to publish his
	own views; of a discriminatory refusal to require the licensee
	to broadcast certain views which have been denied access to
	the airwaves; of government censorship of a particular program
	contrary to [section] 326; or of the official government view
	dominating public broadcasting.  Such questions would raise
	more serious First Amendment issues.  But we do hold that the
	Congress and the Commission do not violate the First Amendment
	when they require a radio or television station to give reply
	time to answer personal attacks and political editorials.

(Red Lion Broadcasting Co., Inc. v. Federal Communications Commission,
395 U.S. 367 (1969), White. J., writing for the majority)