During the Cold War, a vigorous campaign led by Joseph McCarthy, an ultraconservative senator from Wisconsin, tried to rid both government and the media of so-called communist subversives who were allegedly challenging the American way of life. In 1950, a publication called Red Channels: The Report of Communist Influence in Radio and Television aimed “to show how the Communists have been able to carry out their plan of infiltration of the radio and television industry.” Red Channels, inspired by McCarthy and produced by a group of former FBI agents, named 151 performers, writers, and musicians who were “sympathetic” to communist or left-wing causes. Among those named were Leonard Bernstein, Will Geer, Dashiell Hammett, Lillian Hellman, Lena Horne, Burgess Meredith, Arthur Miller, Dorothy Parker, Pete Seeger, Irwin Shaw, and Orson Welles. For a time, all were banned from working in television and radio even though no one on the list was ever charged with a crime.19

Although the First Amendment protects an individual’s right to hold controversial political views, network executives either sympathized with the anticommunist movement or feared losing ad revenue. At any rate, the networks did not stand up to the communist witch-hunters. In order to work, a blacklisted or “suspected” performer required the support of the program’s sponsor. Though I Love Lucy’s Lucille Ball, who in sympathy with her father once registered to vote as a communist in the 1930s, retained Philip Morris’s sponsorship of her popular program, other performers were not as fortunate. Although no evidence was ever introduced to show how entertainment programs circulated communist propaganda, by the early 1950s the TV networks were asking actors and other workers to sign loyalty oaths denouncing communism—a low point for the First Amendment.

The communist witch-hunts demonstrated key differences between print and broadcast protection under the First Amendment. On the one hand, licenses for printers and publishers have been outlawed since the eighteenth century. On the other hand, in the late 1920s commercial broadcasters themselves asked the federal government to step in and regulate the airwaves. At that time, they wanted the government to clear up technical problems, channel noise, noncommercial competition, and amateur interference. Ever since, most broadcasters have been trying to free themselves from the government intrusion they once demanded.

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The FCC Regulates Broadcasting

Drawing on the argument that limited broadcast signals constitute a scarce national resource, the Communications Act of 1934 mandated that radio broadcasters operate in “the public interest, convenience, and necessity.” Since the 1980s, however, with cable and, later, DBS increasing channel capacity, station managers have lobbied to own their airwave assignments. Although the 1996 Telecommunications Act did not grant such ownership, stations continue to challenge the “public interest” statute. They argue that because the government is not allowed to dictate content in newspapers, it should not be allowed to control broadcasting via licenses or mandate any broadcast programming.

Two cases—Red Lion Broadcasting Co. v. FCC (1969) and Miami Herald Publishing Co. v. Tornillo (1974)—demonstrate the historic legal differences between broadcast and print. The Red Lion case began when WGCB, a small-town radio station in Red Lion, Pennsylvania, refused to give airtime to Fred Cook, author of a book that criticized Barry Goldwater, the Republican Party’s presidential candidate in 1964. A conservative radio preacher and Goldwater fan, the Reverend Billy James Hargis, verbally attacked Cook on the air. Cook asked for response time from the two hundred stations that carried the Hargis attack. Most stations complied, granting Cook free reply time. But WGCB offered only to sell Cook time. He appealed to the FCC, which ordered the station to give Cook free time. The station refused, claiming that its First Amendment rights granted it control over its program content. On appeal, the Supreme Court sided with the FCC, deciding that whenever a broadcaster’s rights conflict with the public interest, the public interest must prevail. In interpreting broadcasting as different from print, the Supreme Court upheld the 1934 Communications Act by reaffirming that broadcasters’ responsibilities to program in the public interest may outweigh their right to program whatever they want.

In contrast, five years later, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court sided with the newspaper. A political candidate, Pat Tornillo Jr., requested space to reply to an editorial opposing his candidacy. Previously, Florida had a right-to-reply law, which permitted a candidate to respond, in print, to editorial criticisms from newspapers. Counter to the Red Lion decision, the Court in this case struck down the Florida state law as unconstitutional. The Court argued that mandating that a newspaper give a candidate space to reply violated the paper’s First Amendment rights to control what it chose to publish. The two decisions demonstrate that the unlicensed print media receive protections under the First Amendment that have not always been available to licensed broadcast media.

Dirty Words, Indecent Speech, and Hefty Fines

In theory, communication law prevents the government from censoring broadcast content. Accordingly, the government may not interfere with programs or engage in prior restraint, although it may punish broadcasters for indecency or profanity after the fact. Over the years, a handful of radio stations have had their licenses suspended or denied after an unfavorable FCC review of past programming records. Concerns over indecent broadcast programming began in 1937 when NBC was scolded by the FCC for running a sketch featuring comic actress Mae West on ventriloquist Edgar Bergen’s network program. West had the following conversation with Bergen’s famous wooden dummy, Charlie McCarthy:

WEST: That’s all right. I like a man that takes his time. Why don’t you come home with me? I’ll let you play in my woodpile . . . you’re all wood and a yard long. . . .

CHARLIE: Oh, Mae, don’t, don’t . . . don’t be so rough. To me love is peace and quiet.

WEST: That ain’t love—that’s sleep.20

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After the sketch, West did not perform on radio for years. Ever since, the FCC has periodically fined or reprimanded stations for indecent programming, especially during times when children might be listening.

In the 1960s, topless radio featured deejays and callers discussing intimate sexual subjects in the middle of the afternoon. The government curbed the practice in 1973, when the chairman of the FCC denounced topless radio as “a new breed of air pollution . . . with the suggestive, coaxing, pear-shaped tones of the smut-hustling host.”21 After an FCC investigation, a couple of stations lost their licenses, some were fined, and topless radio was temporarily over. It reemerged in the 1980s, this time with doctors and therapists—instead of deejays—offering intimate counsel over the airwaves.

The current precedent for regulating broadcast indecency stems from a complaint to the FCC in 1973. In the middle of the afternoon, WBAI, a nonprofit Pacifica network station in New York, aired George Carlin’s famous comedy sketch about the seven dirty words that could not be uttered by broadcasters. A father, riding in a car with his fifteen-year-old son, heard the program and complained to the FCC, which sent WBAI a letter of reprimand. Although no fine was issued, the station appealed on principle and won its case in court. The FCC, however, appealed to the Supreme Court. Although no court had legally defined indecency (and still hasn’t), the Supreme Court’s unexpected ruling in the 1978 FCC v. Pacifica Foundation case sided with the FCC and upheld the agency’s authority to require broadcasters to air adult programming at times when children are not likely to be listening. The Court ruled that so-called indecent programming, though not in violation of federal obscenity laws, was a nuisance and could be restricted to late-evening hours. As a result, the FCC banned indecent programs from most stations between 6:00 A.M. and 10:00 P.M. In 1990, the FCC tried to ban such programs entirely. Although a federal court ruled this move unconstitutional, it still upheld the time restrictions intended to protect children.

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This ruling provides the rationale for the indecency fines that the FCC has frequently leveled against programs and stations that have carried indecent programming during daytime and evening hours. While Howard Stern and his various bosses held the early record for racking up millions in FCC indecency fines in the 1990s—before Stern moved to unregulated satellite radio—the largest-ever fine was for $3.6 million, leveled in 2006 against 111 TV stations that broadcast a 2004 episode of the popular CBS program Without a Trace that depicted teenage characters taking part in a sexual orgy.

After the FCC later fined broadcasters for several instances of “fleeting expletives” during live TV shows, the four major networks sued the FCC on grounds that their First Amendment rights had been violated. In its fining flurry, the FCC was partly responding to organized campaigns aimed at Howard Stern’s vulgarity and at the Janet Jackson exposed-breast incident during the 2004 Super Bowl halftime show. In 2006, Congress substantially increased the FCC’s maximum allowable fine to $325,000 per incident of indecency—meaning that one fleeting expletive in a live entertainment, news, or sports program could cost millions of dollars in fines, as it is repeated on affiliate stations across the country. But in 2010, a federal appeals court rejected the FCC’s policy against fleeting expletives, arguing that it was constitutionally vague and had a chilling effect on free speech “because broadcasters have no way of knowing what the FCC will find offensive.”22

Political Broadcasts and Equal Opportunity

In addition to indecency rules, another law that the print media do not encounter is Section 315 of the 1934 Communications Act, which mandates that during elections, broadcast stations must provide equal opportunities and response time for qualified political candidates. In other words, if broadcasters give or sell time to one candidate, they must give or sell the same opportunity to others. Local broadcasters and networks have fought this law for years, complaining that it has required them to give marginal third-party candidates with little hope for success equal airtime in political discussions. Broadcasters claim that because no similar rule applies to newspapers or magazines, the law violates their First Amendment right to control content. In fact, because of this rule, many stations avoid all political programming, ironically reversing the rule’s original intention. The TV networks managed to get the law amended in 1959 to exempt newscasts, press conferences, and other events—such as political debates—that qualify as news. For instance, if a senator running for office appears in a news story, opposing candidates cannot invoke Section 315 and demand free time. The FCC has subsequently ruled that interview portions of programs like the 700 Club and TMZ also count as news.

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Due to Section 315, many stations from the late 1960s through the 1980s refused to air movies starring Ronald Reagan. Because his film appearances did not count as bona fide news stories, politicians opposing Reagan as a presidential candidate could demand free time in markets that ran old Reagan movies. For the same reason, in 2003, TV stations in California banned the broadcast of Arnold Schwarzenegger movies when he became a candidate for governor, and dozens of stations nationwide preempted an episode of Saturday Night Live that was hosted by Al Sharpton, a Democratic presidential candidate.

However, supporters of the equal opportunity law argue that it has provided forums for lesser-known candidates representing views counter to those of the Democratic and Republican parties, further noting that the other main way for alternative candidates to circulate their messages widely is to buy political ads, thus limiting serious outside contenders to wealthy candidates, such as Ross Perot, Steve Forbes, or members of the Bush or Clinton families.

The Demise of the Fairness Doctrine

Considered an important corollary to Section 315, the Fairness Doctrine was to controversial issues what Section 315 is to political speech. Initiated in 1949, this FCC rule required stations (1) to air and engage in controversial-issue programs that affected their communities, and (2) to provide competing points of view when offering such programming. Antismoking activist John Banzhaf ingeniously invoked the Fairness Doctrine to force cigarette advertising off television in 1971. When the FCC mandated antismoking public service announcements to counter “controversial” smoking commercials, tobacco companies decided not to challenge an outright ban rather than tolerate a flood of antismoking spots authorized by the Fairness Doctrine.

Over the years, broadcasters argued that mandating opposing views every time a program covered a controversial issue was a burden not required of the print media, and that it forced many of them to refrain from airing controversial issues. As a result, the Fairness Doctrine ended with little public debate in 1987 after a federal court ruled that it was merely a regulation rather than an extension of Section 315 law.

Since 1987, however, periodic support for reviving the Fairness Doctrine has surfaced. Its supporters argue that broadcasting is fundamentally different from—and more pervasive than—print media, requiring greater accountability to the public. Although many broadcasters disagree, supporters of fairness rules insist that as long as broadcasters are licensed as public trustees of the airwaves—unlike newspaper or magazine publishers—legal precedent permits the courts and the FCC to demand responsible content and behavior from radio and TV stations.

Communication Policy and the Internet

Many have looked to the Internet as the one true venue for unlimited free speech under the First Amendment because it is not regulated by the government, it is not subject to the Communications Act of 1934, and little has been done in regard to self-regulation. Its current global expansion is comparable to that of the early days of broadcasting, when economic and technological growth outstripped law and regulation. At that time, noncommercial experiments by amateurs and engineering students provided a testing ground that commercial interests later exploited for profit. In much the same way, amateurs, students, and various interest groups have explored and extended the communication possibilities of the Internet. In fact, they have experimented so successfully that commercial vendors have raced to buy up pieces of the Internet since the 1990s.

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Public conversations about the Internet have not typically revolved around ownership. Instead, the debates have focused on First Amendment issues, such as civility and pornography. However, as we watch the rapid expansion of the Internet, an important question confronts us: Will the Internet continue to develop as a democratic medium? In late 2010, the FCC created net neutrality rules for wired (cable and DSL) broadband providers, requiring that they provide the same access to all Internet services and content. But the FCC’s net neutrality rules were rejected by federal courts twice. The courts argued that because the FCC had not defined the Internet as a utility, it couldn’t regulate it in this manner. Telecommunication companies were pleased with the decision, as they don’t want any rules governing how they distribute access to the Internet. However, citizens and entrepreneurs opposed an unregulated system that would allow telecommunication companies to create fast lanes (for those who pay more) and slow lanes on the Internet. The debate generated a record number of comments to the FCC, the vast majority in favor of net neutrality.23 In February 2015, the FCC reclassified broadband Internet as a Title II utility and voted to approve net neutrality rules. Although the FCC has said that it does not seek to control broadband prices, ISPs are still unhappy with the decision to redefine Internet connections as an essential utility to which everyone has access (like electricity or phone service).

Critics and observers hope that a vigorous debate about ownership will develop—a debate that will go beyond First Amendment issues. The promise of the Internet as a democratic forum encourages the formation of all sorts of regional, national, and global interest groups. In fact, many global movements use the Internet to fight political forms of censorship. Human Rights Watch, for example, encourages free-expression advocates to use blogs “for disseminating information about, and ending, human rights abuses around the world.”24 Where oppressive regimes have tried to monitor and control Internet communication, Human Rights Watch suggests bloggers post anonymously to safeguard their identity. Just as fax machines, satellites, and home videos helped expedite and document the fall of totalitarian regimes in Eastern Europe in the late 1980s, the Internet helps spread the word and activate social change today.

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