Key Documents: Section I. Journalism, Media, and the Law - Regulating Electronic Media

Introduction

The Federal Communications Commission (FCC) was given the authority by Congress back in 1934 to extensively regulate first radio and then, over time, network television, cable television, and direct broadcast satellites. Government control over what appears on air has always been greater than what circulates in print. As a result, many in the broadcast industry had complained that their First Amendment protections and choices were limited in comparison to those afforded newspapers and magazines. Congress justified the extreme FCC scrutiny of broadcasters by pointing to the relatively few on-air licenses available in comparison to societal demands.

The FCC asked that broadcasters further earn the privilege of a license to use the airwaves by serving the public interest with a “fairness doctrine” that granted access not inherent in print publications. In the fairness doctrine, the FCC said broadcasters had to provide a reasonable amount of on-air time for examination of public issues and for the presentation of conflicting perspectives on important public controversies. The FCC supported specific outgrowths of the fairness doctrine like the political editorial rule (chance for candidates to reply to editorials), the Zapple Rule (option for candidates to buy equal air-time), and the “personal attacks rule” that offered time for a reply to an individual or group attacked during discussion of a heated public issue.

The Supreme Court, in Red Lion Broadcasting Co. v. FCC, supported the authority of the Commission by upholding the constitutionality of the personal attacks rule. Although this rule and most others associated with the fairness doctrine would be struck down by 2000, the Courts general reason in this instance for backing FCC control over broadcasting endures. Justice Byron White authorized his ruling here “in view of the scarcity of broadcast frequencies,” the FCC “role in allocating those frequencies,” and for “those unable without governmental assistance to gain access to those frequencies for expression of their views.”

—Glenn Lewis Volume Editor

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

MR. JUSTICE WHITE delivered the opinion of the Court.

The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory [395 U.S. 367, 370] requirement of 315 of the Communications Act that equal time be allotted all qualified candidates for public office. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely [Page 1579]in the form of FCC regulations in 1967. The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion [395 U.S. 367, 371] involves the application of the fairness doctrine to a particular broadcast, and RTNDA arises as an action to review the FCC's 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun.

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