395 U.S. 367 (1969), 2, Red Lion Broadcasting Co., Inc. v. Federal Communications Commission

Docket Nº:No. 2
Citation:395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371
Party Name:Red Lion Broadcasting Co., Inc. v. Federal Communications Commission
Case Date:June 09, 1969
Court:United States Supreme Court
 
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Page 367

395 U.S. 367 (1969)

89 S.Ct. 1794, 23 L.Ed.2d 371

Red Lion Broadcasting Co., Inc.

v.

Federal Communications Commission

No. 2

United States Supreme Court

June 9, 1969

Argued April 2-3, 1969

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

The Federal Communications Commission (FCC) has for many years imposed on broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program which constituted a personal attack on one Cook, and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the FCC's position. After the commencement of the Red Lion litigation, the FCC began a rulemaking proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the Court of Appeals in RTNDA (No. 717) as abridging the freedoms of speech and press.

Held:

1. The history of the fairness doctrine and of related legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that, in adopting the new regulations, the FCC was implementing congressional policy. Pp. 375-386.

(a) The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicants in the public interest, and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine. Pp. 375-379.

(b) The FCC's statutory mandate to see that broadcasters operate in the public interest and Congress' reaffirmation, in the

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1959 amendment to § 315 of the Communications Act, of the FCC's view that the fairness doctrine inhered in the public interest standard, support the conclusion that the doctrine and its component personal attack and political editorializing' regulations are a legitimate exercise of congressionally delegated authority. Pp. 379-386.

2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. Pp. 386-401.

(a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. Pp. 386-390.

(b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. Pp. 390-392.

(c) The danger that licensees will eliminate coverage of controversial issues as a result of the personal attack and political editorial rules is, at best, speculative, and, in any event, the FCC has authority to guard against this danger. Pp. 392-395.

(d) There was nothing vague about the FCC's specific ruling in the Red Lion case, and the regulations at issue in No. 717 could be employed in precisely the same way as the fairness doctrine in Red Lion. It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise. Pp. 395-396.

(e) It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. Pp. 396-400.

No. 2, 127 U.S.App.D.C. 129, 381 F.2d 908, affirmed; No. 717, 400 F.2d 1002, reversed and remanded.

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WHITE, J., lead opinion

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

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requirement of § 315 of the Communications Act1 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 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

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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.

I

A

The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater -- Extremist on the Right" was discussed by Hargis, who said that Cook had been [89 S.Ct. 1797] fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency, and that he had now written a "book to smear and destroy Barry Goldwater."2 When Cook heard of the broadcast, he

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concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time, and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit,3 the

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FCC's position was upheld as constitutional and otherwise proper. 127 U.S.App.D.C. 129, 381 F.2d 908 (1967).

B

Not long after the Red Lion litigation was begun, the FCC issued a Notice of [89 S.Ct. 1798] Proposed Rule Making, 31 Fed.Reg. 5710, with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. After considering written comments supporting and opposing the rules, the FCC adopted them substantially as proposed, 32 Fed.Reg. 10303. Twice amended, 32 Fed.Reg. 11531, 33 Fed.Reg. 5362, the rules were held unconstitutional in the RTNDA litigation by the Court of Appeals for the Seventh Circuit, on review of the rulemaking proceeding, as abridging the freedoms of speech and press. 400 F.2d 1002 (1968).

As they now stand amended, the regulations read as follows:

Personal attacks; political editorials.

(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked(1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the

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attack, and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.

(b) The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign, and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) of this section shall be applicable to editorials of the licensee).

NOTE: The fairness doctrine is applicable to situations coming within [(3)], above, and, in a specific factual situation, may be applicable in the general area of political broadcasts [(2)], above. See section 315(a) of the Act, 47 U.S.C. 315(a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance. 29 F. R. 10415. The categories listed in [(3)] are the same as those specified in section 315(a) of the Act.

(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified...

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