Broadcasters have been known to complain that they enjoy much less First Amendment freedom than the print media. Do they have a valid point? I argue that broadcasters do have fewer freedoms, with regard to the First Amendment, compared to print media. In order to come to any definite conclusion, however, I find it relevant to discuss two aspects of this scenario. First, we need to look at the nature of the two mediums: namely the written word, and broadcast space, or the electromagnetic spectrum. Second, it is important to look at the court’s decisions regarding the two different types of media, and their reasoning behind the rulings. I will address the nature of the two mediums first.
Nature of the Mediums
Ever since the beginning of the United States, freedom of the press has been deemed a very important and fundamental right. It was important enough to be included in the Constitution, such that the federal government shall establish no laws regarding the right to print media. Print has been used for many, many different reasons, on many different mediums (i.e., newspaper, books, magazines, pamphlets, to name a few). The mentality over the years is that there is a free marketplace of ideas, and there needs to be many different ideas out there for the system to work. One can argue that there are numerous places to get one’s work published, and, like in the case of Walt Whitman’s first published work “Song of Myself,” if needed one should be able to print their own ideas. What has been established in the minds of both the American public, as well as the American Judiciary, is that there is quite literally an infinite amount of space out there for printing media. It is then up to the public at large to choose what is popular and what is not. On the other hand, broadcast media was fairly limited in the number of outlets to get the word out.
Unlike print media, which hypothetically has an infinite number when it comes to outlets to get the message out, broadcast media is (at least before digital TV) limited to possible frequencies on the electromagnetic spectrum. Because of the limited amount of space, there are severe limits on what can be broadcast. For example, when radio was first broadcast, companies would frequently broadcast on the same wavelength. This created a slur of “black noise” where it was impossible to hear any singular message. This creates serious problems when it comes to broadcasting, and throwing out messages into the marketplace of ideas. If everyone had the chance to broadcast, and it turned into a melee, there would literally be no message to hear (with the possible exception being in parts of Alaska). Therefore, you can see that the very nature of these two mediums is quite different, and because of the many plausible problems that could exist in broadcasting, the government decided that it needed to step in.
Legal Status of the Two Mediums
When it comes to print media, the government has been very protective of it (at least since the Gitlow and NY Times v. Sullivan era). The courts have used preferred position balancing and Mickeljohnian approaches when dealing with the print. The trend has been to block any legislation, or other forms of prior restraint, that block more speech than is necessary, the exceptions being obscenity, national security, and incitement to violence. The courts have also ruled that in order for a prior restraint to happen it must be narrowly tailored (not overbroad); there must be a substantial government interest; it must limit an administrator’s discretion; all content must be treated neutrally; a complete ban on expression cannot be issued. On top of these governmental restrictions, there nave also been freedoms granted to the publishers of the print. In the Tornillo case, the Supreme Court ruled that a newspaper is private property, and that all discretion is in the hands of the editor. Newspapers cannot be forced by the government to print counter-arguments. This perhaps draws on the largest distinction between print and broadcast media.
The courts have ruled that the electromagnetic spectrum is a public resource. This is the complete opposite of print media (it is private). Just like with other public resources, the government deemed it necessary to regulate its use (based on social responsibility traditions). So Congress created the FCC. Interestingly enough, the courts have used ad-hoc balancing when it comes to rules set by the FCC regarding broadcast media. This method of judgment has allowed for lots of regulations to come into play. Things like the safe harbor rule, which prohibits any obscene material from being broadcast at all, and indecent material from being broadcast from 6 am to 10 pm. The courts have also shown a preference to children as well.
In the Pacifica case, the Supreme Court ruled that broadcasting is different from print: it has a “uniquely pervasive presence,” and is easily accessible to children. This had implications with indecency in particular, but also with ad placements. In 1990, the FCC made certain requirements regarding children’s education, as well as with when certain types of ads could be placed in front of children, and for what amount of time.
It is difficult to deny that the two types of communication discussed in this essay have received different treatment from the government. This is mainly due to the difference in how government views the two mediums: public and private. Because broadcast media is viewed as a public resource, the government has been able to place more restrictions on the types of things broadcast, all under the umbrella of “regulation.” The question that arises then is this: “Are these regulations warranted?” With new technologies, such as DVR, as well as digital television (a much more efficient use of the electromagnetic spectrum), is there any reason for government to continue its course of regulation of broadcast media?
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Tags: Congress, Electromagnetic Spectrum, FCC, FCC v. Pacifica, Federal Communcations Commission, First Amendment, Free Press, Free Speech, Gitlow, Mass Media Law, NY Times v. Sullivan, Obscene, Print vs Broadcast, Prior Restraint, Safe Harbor, Scarce Resource, Tornillo
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