First Amendment protection must apply to broadcast media

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The United Supreme Court has difficulty with new technology.

The court ruled in Mutual Film Corp. v. Industrial Comm’n of Ohio (1915) that motion pictures were unprotected speech because “the exhibition of moving pictures is … not to be regarded … as part of the press of the country, or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but … capable of evil … .” Justice Joseph McKenna authored the opinion. He was born in 1843, when the stereopticon had just been invented and was soon to become all the rage.

The incorporation of the First Amendment into the 14th Amendment and its application to state law and action only occurred in 1925 with Gitlow v. New York. Mutual Film was not reversed until 1952. The interim was filled by the Motion Picture Code, a defensive move by the industry to forestall government censorship.

Jump to 1943. You would think that the Supreme Court would have learned its lesson from the boneheaded Mutual Film; not so. Now it was broadcasting that was understood as being unworthy of First Amendment protection. In NBC v. FCC, the court, in an opinion by Justice Felix Frankfurter, justified its ruling on the involvement of the government in regulating the allocation of available radio frequencies among competing applicants. The government could deny a license, or its renewal, on the grounds of “public interest, convenience, or necessity.” In Red Lion Broadcasting v. FCC (1969), the court relied on this principle to hold that the FCC could require a broadcaster to give equal time to a person responding to a personal attack. For years, broadcasters labored under this and other manifestations of the fairness doctrine, including giving time to “both sides” of controversial issues as part of the public interest obligation.

Justice Byron White wrote in Red Lion: “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.”

The court did not understand economics: Everything (except money) is scarce. And whatever was scarce in 1969 is not today.

The government cannot, or rather, should not, use its traffic cop responsibilities, as described in Red Lion and NBC, to deny free speech to those who are so regulated. Highways are expensive to build and maintain, and states control who gets licenses to drive on them, but that does not give the states the right to force their citizens to drive with political statements on their license plates, like “Live Free or Die.” The determination to regulate does not carry with it the right to attach restrictions on the content of speech by the regulated persons. Time, place, and manner — yes, but only.

The fairness doctrine no longer exists, but the illusion that content regulation can be attached to broadcast licensing, simply because of broadcast licensing continues. And its principal advocate is President Donald Trump. He sued CBS, claiming that the network’s decision to edit an interview with Vice President Kamala Harris somehow violated Trump’s rights. Nonsense. Trump did not have standing. Trump was not damaged. And even Red Lion would support the meritless lawsuit’s immediate dismissal:

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; … [or] of government censorship of a particular program. … Such questions would raise more serious First Amendment issues.

Trump has argued that broadcast licenses be pulled for the airing of Jimmy Kimmel’s remarks on the murder of Charlie Kirk, a call supported by Trump’s FCC chair. Hitting a new level of mindless outrage, Trump has demanded that ABC’s broadcast license should be revoked because its reporter asked a simple question about why Trump never just directed the release of the Epstein documents.

Trump does not know how to dog whistle, only to yell. Accordingly, the limited First Amendment protections in Red Lion would block regulatory actions against broadcasters who suffer Trump’s ire. Some day we may have a president who is not suffering from wild fits of anger, and who does know how to dog whistle. Broadcasters need the protection of the First Amendment, all of it, and not just against obvious acts of political retaliation.

Republican Senator Ted Cruz stated: “If the government gets in the business of saying, ‘We don’t like what you, the media, have said. We’re going to ban you from the airwaves if you don’t say what we like,’ that will end up bad for conservatives.”

It will “end up bad” for all of us. The First Amendment does and should apply to broadcast media. Now.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.