RED LION BROADCASTING CO v FCC, 395 U.S. 367 (1969)

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RED LION BROADCASTING CO v FCC, 395 U.S. 367 (1969)

  • Court opinion delivered by Justice White

Contents

Overview

  • "Fairness doctrine" (FD)
  • FCC charged that Red Lion failed the FD by carrying a personal attack
  • Court of Appeals upheld
  • FCC began process to revise FD to clarify position on personal attacks
  • FD is within the FCCs authority by statutory mandate that they ensure broadcasters operate "in the public interest"
  • FD is not violation of First Amend because spectrum is scarce
  • SCOTUS believes that danger of broadcasters not covering sensitive issues is minimal

Takeaways

  • Fairness doctrine
  • In the public interest
  • FCC jurisdiction
  • FCC authority viz implementing congressional polic
  • Scarcity

Facts

  • Red Lion Broadcasting Co is radio station WGCB
  • Nov 27, 1964
  • Rev Billy James Hargis, Christian Crusade series
  • Criticized Cook, a left-wing journalist and author
  • Cook demanded RLBC give him time to respond
  • FCC determined that the broadcast was a personal attack and that RLBC was required to give Cook opportunity to respond
  • Scarcity is very real, many applicants are turned down
    • Citizen, amateur, and microwave bands are becoming congested with new applications, practices, tech

Legally important facts

  • Fairness doctrine: FCC requires that TV/radio broadcasters present "each side" of public issues
  • FCC/FRC created because broadcast frequency is a scarce resource
  • Frequencies ought to be allocated among competing applicants to serve public "convenience, interest or necessity"
  • 1958 Congress made clear that "public interest" meant that broadcasters were compelled to fairness

Two basic duties of broadcasters

  • Give adequate coverage to public issues
  • Coverage must be fair, accurately reflect the opposing views

Personal attacks

  • When a person involved in a public issue is attacked, he should be given the opportunity to respond
  • Different from general fairness in that the person who is specifically attacked is himself given a voice

How are radio/tv different from other media?

  • "Differences in the characteristics of new media justify differences in the First Amendment standards applied to them"
  • Scarce spectrum, broad range, high possibility for interference
  • Gov't had to deny some applicants simply because of scarcity

Licensing and 1st Amendment

  • "No one has a First Amendment right to a license or to monopolize a radio frequency"
"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."

Free speech and scarce spectrum

  • "There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all."

Chilling effect of FD?

  • Won't stations cease to cover controversial topics?
  • SCOTUS says that the record does not show this
    • And if it should occur, then there will be time to address + remedy

Monopoly threat?

  • If gov't doesn't regulate, broadcasting will quickly become near-monopolized, little local programming (1943)

Prior procedural posture

  • Court of Appeals for FC Circuit 3 upheld FCC decision
  • FCC clarified its policy re: personal attacks during the period of Cook litigation

Issue to be decided

  • Whether or not the fairness doctrine infringes on First Amendment right to free expression

Law that applies

  • First Amendment
  • FCC 32 Fed. Reg. 1030

Court's holding

  • Fairness doctrine
    • is authorized by Congress (within FCC authority)
    • "enhances rather than abridges" First Amend

Why?

  • Scarcity of spectrum
  • Gov't role in allocating frequencies
  • Legit claims of those unable to gain access for expression
Retrieved from "http://www.kevindriscoll.org/wiki/RED_LION_BROADCASTING_CO_v_FCC,_395_U.S._367_(1969)"
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