Red Lion Broadcasting Co., Inc. v. Federal Communications

395 U.S. 367 (1969), argued 2–3 April 1969, decided 9 June 1969 by vote of 8 to 0; White for the Court, Douglas not participating. In Red Lion the Court upheld the fairness doctrine of the Federal Communications Commission (FCC), which requires broadcast licensees to allow reply time to individuals subjected to personal attacks or political editorials. In this instance, radio station WGCB refused to allow Fred Cook, the author of a book critical of Arizona senator Barry Goldwater, time to respond to an attack by the Rev. Billy James Hargis. The Court utilized the case to explore the different contexts of broadcast and print journalism that result in different First Amendment considerations. The finite number of broadcast frequencies meant it was “idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish” (p. 388).

The Court asserted that the interests of the listening and viewing public must prevail over those of broadcast licensees when allocating scarce airwaves. This scarcity rationale has met with considerable criticism since cable television (and public access to the airwaves) has proliferated while countless outlets for the printed word have been silenced by mergers and commercial failures. Further, the decision was widely criticized for its possible “chilling effect” on broadcasters who had to censor themselves to avoid controversy and the allowance of response time. Indeed, after President Ronald Reagan vetoed legislation codifying the fairness doctrine, the FCC responded to long‐term criticism by eliminating the rule in 1987. In other contexts, however, the Court continues to maintain that critical differences between broadcast and print journalism bring different First Amendment considerations into play.

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See also Speech and the Press

— Elliot E. Slotnick