1. FACTS OF CASE:

The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a “Christian Crusade” series. A book by Fred J. Cook entitled “Goldwater — Extremist on the Right” was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a “book to smear and destroy Barry Goldwater.”  When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, the FCC’s position was upheld as constitutional and otherwise proper.

More information available here: Red Lion Broadcasting Co. v. FCC.

2. LEGAL ISSUE

The FCC by administrative rulemaking had a requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. As a result the FCC added an “equal time rule” and a “response to personal attack” rule. Red Lion Broadcasting Co. challenged these rules as unconstitutionally infringing on the speech of the station’s editorial judgment. The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.

3. DECISION

In a unanimous decision, the Court held that the fairness doctrine was consistent with the First Amendment. They sided with the FCC.

4. ANALYSIS

Writing for the Court, Justice White argued that spectrum scarcity made it “idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” The Court held that the FCC’s fairness doctrine regulations enhanced rather than infringed the freedoms of speech protected under the First Amendment. With respect to the regulation of personal attacks made in the context of public issue debates, the FCC’s requirement that the subject of the attack be provided with a tape, transcript, or broadcast summary, as well as an opportunity to respond without having to prove an inability to pay for the “air-time,” insured a balanced and open discussion of contested issues. The requirement that political editorializing be presented for and against both sides of the debated issues also contributed to the balanced discussion of public concerns.

5. QUESTIONS

1. Do you think Red Lion should have initially sent Cook a taping of the 15-minute broadcast so that he could have adequate response time?

2.Do you agree with the court’s decision? If you were the judge in this case, would you side with the FCC?

3. Do you think the FCC’s fairness doctrine regulations, concerning personal attacks violates the First Amendment’s freedom of speech?