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-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.