Red Lion Broadcasting Co. v. Federal Communications Commission

Petitioner
Red Lion Broadcasting Company, et al.
Respondent
Federal Communications Commission, et al.
Petitioner's Claim
That the Federal Communications Commission's Fairness Doctrine, which requires broadcasters to allow the subjects of personal attacks or political analyses equal time for rebuttal, violated their First Amendment right to freely determine the content of their programming.
Chief Lawyer for Petitioner
Roger Robb
Chief Lawyer for Respondent
Archibald Cox
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr., John Marshall Harlan II, Thurgood Marshall, Potter Stewart, Earl Warren, Byron R. White (writing for the Court)
Justices Dissenting
None (William O. Douglas did not participate)
Place
Washington, D.C.
Date of Decision
9 June 1969
Decision
Denied the petitioner's claim, upholding a court of appeals ruling that the Fairness Doctrine did not violate the First Amendment right of broadcasters todetermine the content of their programming.
Significance
The ruling upheld the Fairness Doctrine of the Federal Communications Commission, and insured the legal Right of Reply over broadcast media. Because thereis a finite number of broadcast frequencies, the Court ruled that licensed broadcasters are obliged to present a variety of views on all subjects coveredin their programming.
A Personal Attack on the Airwaves
On 27 November 1964, Pennsylvania radio station WGCB broadcast a 15-minute program by Reverend Billy James Hargis as part of its ongoing "Christian Crusade" series. In this program Rev. Hargis discussed author Fred J. Cook's work entitled Goldwater: Extremist on the Right. Rev. Hargis disagreed withthe book's positions and found fault with Cook's political beliefs and personal and work history, stating that Cook had: been dismissed from a position with the New York World Telegram newspaper for fabricating a story; hadsubsequently worked for a Communist-affiliated publication; and had defendedalleged Communist spy Alger Hiss and attacked the Federal Bureau of Investigation and its head, J. Edgar Hoover, in his writings. Cook subsequently heardthe program, determined that it constituted a personal attack against him, and demanded free air time for a reply from WGCB. The station refused Cook's request and the matter was referred to the Federal Communications Commission (FCC). The FCC ruled that Rev. Hargis's program qualified as a personal attackon Cook, and that WGCB had failed to meet its obligation as a licensed broadcaster to provide a variety of viewpoints on all subjects covered in its programming. As such, the station was ordered to provide Cook with free air time.
The Fairness Doctrine
The advent of commercial radio in the 1920s constituted a revolution in popular communications. In the earliest days of commercial radio broadcasting, theallocation of broadcast frequencies was left to the private sector, resulting in a chaotic and virtually unusable broadcast spectrum. To sort out this chaos and protect the public interest in radio broadcasting, the federal government created the Federal Radio Commission (later the FCC) in 1927. This agency quickly reorganized the radio broadcasting industry, allocating fixed frequencies to licensed broadcasters and creating rules and regulations regardingradio station operations and, to some extent, programming. While pursuing itscongressionally mandated responsibility to guard the public interest in radio broadcasting, the FCC determined in 1929 that the "public interest requiresample play for the free and fair competition of opposing views," a principlewhich the agency intended to apply "to all discussions of issues of importance to the public." By the end of the 1940s the FCC's efforts to ensure enlightened discussion of political issues from a variety of viewpoints had crystallized into the so- called Fairness Doctrine, which obligates broadcasters tooffer free time for rebuttal and reply for commentators representing viewpoints differing from those presented in a station's programming.
Regulation of Content
WGCB objected to the FCC's ruling and in 1967 took the case to the U.S. Courtof Appeals for the District of Columbia Circuit. The radio station maintained that, by forcing it to supply reply time to Clark, the FCC was regulating the content of its programming in violation of First Amendment protections offree speech. While the court of appeals considered the case, the FCC moved toclarify the Fairness Doctrine, particularly insofar as it applied to personal attacks and political editorials. As amended, the doctrine defined a personal attack as occurring "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 amended doctrine also prescribed a remedy for such attacks:

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

Although the court of appeals upheld the FCC in the Red Lion case, the amended Fairness Doctrinewas almost simultaneously ruled unconstitutional by the U.S. District Court of Appeals for the Seventh Circuit in a parallel case, United States v. Radio Television News Directors Association (RTNDA). In light of these conflicting rulings the case moved to the U.S. Supreme Court, which heard arguments on 2 and 3 April 1969.
Freedom of Speech for Broadcasters and the People
In considering the case, the Supreme Court reviewed the history and purpose of the FCC. By a vote of 8-0, the Court upheld the decision of the Court of Appeals of the District of Columbia, and overruled the decision reached in RTNDA. Writing for the majority, Justice White noted that part of the function of the FCC is to maintain a diversity of views on the broadcast airwavesas a public trust. This function is made necessary by the fact that the limited number of frequencies available makes it impossible for each individual to voice their opinions on the air. As such, FCC licensed broadcasting stations must function, as much as possible, as conduits for public dissemination ofthe views of those unable to obtain broadcasting licenses. "A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens." Furthermore, the Court interpreted the First Amendment asapplying more to the duty of broadcasters to represent the views of those unable to broadcast than to the right of broadcasters to determine their own programming. "There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves."
Impact
The ruling upheld and solidified the use of the Fairness Doctrine in the regulation of political speech on the public airwaves. The Fairness Doctrine was,however, overtaken by events in due course. The Court seemed to back away from its position on the doctrine in Miami Herald Publishing Company v. Tornillo (1974), ruling that the right of reply did not apply to printed media. A final blow to the doctrine was delivered in 1987, when President RonaldReagan vetoed legislation codifying the doctrine and the FCC abandoned it altogether shortly thereafter. Despite this retrenchment, the Court has continued to interpret the right of reply and personal attack rules as justifying theregulation of programming to ensure the airing of a variety of political viewpoints. In the 1981 case of CBS v. FCC, for instance, the Court ruledthat broadcasters must allow "reasonable access" for all candidates for federal office.
Related Cases

• CBS v. Democratic National Committee, 412 U.S. 97 (1973).
  
• Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974).
  
• CBS v. FCC, 453 U.S. 367 (1981).