Parties: Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee
Date: 1973-05-29
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Paragraph: 59 - That 'Congress shall make no law . . . abridging the freedom of speech, or of the press' is a restraint on government action, not that of private persons. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952). The Court has not previously considered whether the action of a broadcast licensee such as that challenged here is 'governmental action' for purposes of the First Amendment. The holding under review thus presents a novel question, and one with far-reaching implications.
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Paragraph: 178 - N112* We ourselves have, of course, made great inroads on the First Amendment of which obscenity is only one of the many examples. So perhaps we are inching slowly toward a controlled press. But the regime of federal supervision under the Fairness Doctrine is contrary to our constitutional mandate and makes the broadcast licensee an easy victim of political pressures and reduces him to a timid and submissive segment of the press whose measure of the public interest will now be echoes of the dominant political voice that emerges after every election. The affair with freedom of which we have been proud will now bear only a faint likeness of our former robust days.
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Paragraph: 180 - N113* We have allowed ominous inroads to be made on the historic freedom of the newspapers. The effort to suppress the publication of the Pentagon Papers failed only by a narrow margin and actually succeeded for a brief spell in imposing prior restraint on our press for the first time in our history.
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Paragraph: 191 - N114* Experience has shown that unrestrained power cannot be trusted to serve the public weal even though it be in governmental hands. The fate of the First Amendment should not be so jeopardized. The constitutional mandate that the Government shall make 'no law' abridging freedom of speech and the press is clear; the orders and rulings of the Commission are covered by that ban; and it must be carefully confined lest broadcasting—now our most powerful media—be used to subdue the minorities or help produce a Nation of people who walk submissively to the executive's motions of the public good.
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Paragraph: 32 - N107* In analyzing the broadcasters' claim that the Fairness Doctrine and two of its component rules violated their freedom of expression, we held that '(n)o one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech." Id., at 389, 89 S.Ct., at 1806. Although the broadcaster is not without protection under the First Amendment, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260 (1948), '(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.'
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Paragraph: 100 - N108* The First Amendment prohibits the Government from imposing controls upon the press. Private broadcasters are surely part of the press. United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260. Yet here the Court of Appeals held, and the dissenters today agree, that the First Amendment requires the Government to impose controls upon private broadcasters—in order to preserve First Amendment 'values.' The appellate court accomplished this strange convolution by the simple device of holding that private broadcasters are Government. This is a step along a path that could eventually lead to the proposition that private newspapers 'are' Government. Freedom of the press would then be gone. In its place we would have such governmental controls upon the press as a majority of this Court at any particular moment might consider First Amendment 'values' to require. It is a frightening specter.
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Paragraph: 112 -
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Paragraph: 126 - N110* There is never a paucity of arguments in favor of limiting the freedom of the press. The Court of Appeals concluded that greater Government control of press freedom is acceptable here because of the scarcity of frequencies for broadcasting. But there are many more broadcasting stations than there are daily newspapers. And it would require no great ingenuity to argue that newspapers too are Government. After all, newspapers get Government mail subsidies and a limited antitrust immunity. The reasoning of the Court of Appeals would then lead to the conclusion that the First Amendment requires that newspapers, too, be compelled to open their pages to all comers.
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Paragraph: 142 - The Government as owner and manager would not, as I see it, be free to pick and choose such news items as it desired. For by the First Amendment it may not censor or enact or enforce any other 'law' abridging freedom of the press. Politics, ideological slants, rightist or leftist tendencies could play no part in its design of programs.
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Paragraph: 145 - '(A)ny effort to solve the broader problems of a monopoly press by forcing newspapers to cover all 'newsworthy' events and print all viewpoints, under the watchful eyes of petty public officials, is likely to undermine such independence as the press now shows without achieving any real diversity.' The System of Freedom of Expression 671 (1970).
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Paragraph: 151 - 'It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost.'
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Paragraph: 152 - Of course there is private censorship in the newspaper field. But for one publisher who may suppress a fact, there are many who will print it. But if the Government is the censor, administrative fiat, not freedom of choice, carries the day.
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Paragraph: 153 - 'It is an insufficiently noticed aspect of the First Amendment that it contemplates the vigorous use of self-help by the opponents of given doctrines, ideas, and political positions. It is not the theory that all ideas and positions are entitled to flourish under freedom of discussion. It is rather then that they must survive and endure against hostile criticism. There is perhaps a paradox in that the suppression of speech by speech is part and parcel of the principle of freedom of speech. Indeed, one big reason why policy dictates that government keep its hands off communication is that, in this area, self-help of criticism is singularly effective.
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Paragraph: 167 - N111* But the press in a realistic sense is likewise not available to all. Small or 'underground' papers appear and disappear; and the weekly is an established institution. But the daily papers now established are unique in the sense that it would be virtually impossible for a competitor to enter the field due to the financial exigencies of this era. The result is that in practical terms the newspapers and magazines, like TV and radio, are available only to a select few. Who at this time would have the folly to think he could combat the New York Times or Denver Post by building a new plant and becoming a competitor? That may argue for a redefinition of the responsibilities of the press in First Amendment terms. But I do not think it gives us carte blanche to design systems of supervision and control or empower Congress to read the mandate in the First Amendment that 'Congress shall make no law . . . abridging the freedom . . . of the press' to mean that Congress may, acting directly or through any of its agencies such as the FCC make 'some' laws 'abridging' freedom of the press.
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Paragraph: 175 - The Court in today's decision by endorsing the Fairness Doctrine sanctions a federal saddle on broadcast licensees that is agreeable to the traditions of nations that never have known freedom of press and that is tolerable in countries that do not have a written constitution containing prohibitions as absolute as those in the First Amendment.
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Paragraph: 192 - N115* Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484, involved a prosecution of a newspaper editor for publishing, contrary to a state statute, an editorial on election day urging the voters to vote against the existing city commission and to replace it with a mayor-council government. This Court, speaking through Mr. Justice Black, reversed the judgment saying: '(T)he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.' Id., at 219, 86 S.Ct., at 1437. I would apply the same test to TV or radio.
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Paragraph: 201 - N116* The command of the First Amendment that 'Congress shall make no law . . . abridging the freedom of speech, or of the press' is, on its face, directed at governmental rather than private action. Nevertheless, our prior decisions make clear that '(c)onduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon (governmental) action.' Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966). Thus, the reach of the First Amendment depends not upon any formalistic 'private-public' dichotomy but, rather, upon more functional considerations concerning the extent of governmental involvement in, and public character of, a particular 'private' enterprise.
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Paragraph: 232 - N117* N118* In light of these considerations, the Court would concede, I assume, that our citizens have at least an abstract right to express their views on controversial issues of public importance. But freedom of speech does not exist in the abstract. On the contrary, the right to speak can flourish only if it is allowed to operate in an effective forum—whether it be a public park, a schoolroom, a town meeting hall, a soapbox, or a radio and television frequency. For in the absence of an effective means of communication, the right to speak would ring hollow indeed. And, in recognition of these principles, we have consistently held that the First Amendment embodies, not only the abstract right to be free from censorship, but also the right of an individual to utilize an appropriate and effective medium for the expression of his views.
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Paragraph: 116 - N104* N105* The dissenting opinion today argues, in support of the decision of the Court of Appeals, that only a limited right of access is sought by the respondents and required by the First Amendment, and that such a limited right would not turn broadcasters into common carriers. The respondents argue, somewhat differently, that the Constitution requires that only 'responsible' individuals and groups be given the right to purchase advertising. These positions are said to be arrived at by somehow balancing 'competing First Amendment values.' But if private broadcasters are Government, how can the First Amendment give only a limited right to those who would speak? Since when has the First Amendment given Government the right to silence all speakers it does not consider 'responsible?'
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Paragraph: 122 - N106* If the 'public interest' language of the statute were intended to enact the substance of the First Amendment, a discussion of whether broadcaster action is governmental action would indeed be superfluous. For anything that Government could not do because of the First Amendment, the broadcasters could not do under the statute. But this theory proves far too much, since it would make the statutory scheme, with the emphasis on broadcaster discretion and its proscription on interference with 'the right of free speech by means of radio communication,' a nullity. Were the Government really operating the electronic press, it would, as my Brother DOUGLAS points out, be prevented by the First Amendment from selection of broadcast content and the exercise of editorial judgment. It would not be permitted in the name of 'fairness' to deny time to any person or group on the grounds that their views had been heard 'enough.' Yet broadcasters perform precisely these functions and enjoy precisely these freedoms under the Act. The constitutional and statutory issues in these cases are thus quite different.
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Paragraph: 32 - N107* N108* N109* Because the broadcast media utilize a valuable and limited public resource, there is also present an unusual order of First Amendment values. Red Lion discussed at length the application of the First Amendment to the broadcast media. In analyzing the broadcasters' claim that the Fairness Doctrine and two of its component rules violated their freedom of expression, we held that N110* '(n)o one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech." Id., at 389, 89 S.Ct., at 1806. Although the broadcaster is not without protection under the First Amendment, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260 (1948), N111* '(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.'
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Paragraph: 57 - Thus, under the Fairness Doctrine broadcasters are responsible for providing the listening and viewing public with access to a balanced presentation of information on issues of public importance. The basic principle underlying that responsibility is N112* 'the right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter . . ..' Report of Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949). Consistent with that philosophy, the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities.
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Paragraph: 183 - The right of the people to know has been greatly undermined by our decisions requiring, under pain of contempt, a reporter to disclose the sources of the information he comes across in investigative reporting.
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Paragraph: 188 - Under the statute if Congress does not act, this new regime of secrecy will be imposed on the Nation and the right of people to know will be further curtailed. The proposed code sedulously protects the Government; it does not protect newsmen. It indeed pointedly omits any mention of the privilege of newsmen to protect their confidential sources.
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Paragraph: 192 - Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484, involved a prosecution of a newspaper editor for publishing, contrary to a state statute, an editorial on election day urging the voters to vote against the existing city commission and to replace it with a mayor-council government. This Court, speaking through Mr. Justice Black, reversed the judgment saying: '(T)he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.
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Paragraph: 218 - With considerations such as these in mind, we have specifically declared that, in the context of radio and television broadcasting, the First Amendment protects N113* 'the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . ..' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 390, 89 S.Ct. at 1807. And, because N114* '(i)t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee,' N115* '(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.'
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Paragraph: 227 - Nor are these cases concerned solely with the adequacy of coverage of those views and issues which generally are recognized as 'newsworthy.' For also at stake is the right of the public to receive suitable access to new and generally unperceived ideas and opinions. Under the Fairness Doctrine, the broadcaster is required to present only 'representative community views and voices on controversial issues' of public importance. Thus, by definition, the Fairness Doctrine tends to perpetuate coverage of those 'views and voices' that are already established, while failing to provide for exposure of the public to those 'views and voices' that are novel, unorthodox, or unrepresentative of prevailing opinion.
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Paragraph: 231 - Moreover, a proper balancing of the competing First Amendment interests at stake in this controversy must consider, not only the interests of broadcasters and of the listening and viewing public, but also the independent First Amendment interest of groups and individuals in effective self-expression. See, e.g., T. Emerson, Toward a General Theory of the First Amendment 4—7 (1666); Z. Chafee, Free Speech in the United States 33 (1941). N116* '(S)peech concerning public affairs . . . is the essence of self-government,' Garrison v. Louisiana, 379 U.S. 64, 74—75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), and the First Amendment must therefore safeguard not only the right of the public to hear debate, but also the right of individuals to participate in that debate and to attempt to persuade others to their points of view.
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Paragraph: 232 - In light of these considerations, the Court would concede, I assume, that our citizens have at least an abstract right to express their views on controversial issues of public importance. But freedom of speech does not exist in the abstract. On the contrary, the right to speak can flourish only if it is allowed to operate in an effective forum—whether it be a public park, a schoolroom, a town meeting hall, a soapbox, or a radio and television frequency. For in the absence of an effective means of communication, the right to speak would ring hollow indeed. And, in recognition of these principles, we have consistently held that the First Amendment embodies, not only the abstract right to be free from censorship, but also the right of an individual to utilize an appropriate and effective medium for the expression of his views.
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Paragraph: 237 - N117* Although the overriding need to avoid overcrowding of the airwaves clearly justifies the imposition of a ceiling on the number of individuals who will be permitted to operate broadcast stations and, indeed, renders it N118* 'idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish,' it does not in any sense dictate that the continuing First Amendment rights of all nonlicensees be brushed aside entirely. Under the existing system, broadcast licensees are granted a preferred status with respect to the airwaves, not because they have competed successfully in the free market but rather, 'because of their initial government selection . . ..' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 400, 89 S.Ct. at 1812. And, in return for that 'preferred status,' licensees must respect the competing First Amendment rights of others. Thus, although the broadcaster has a clear First Amendment right to be free from Government censorship in the expression of his own views and, indeed, has a significant interest in exercising reasonable journalistic control over the use of his facilities, N119* '(t)he right of free speech of a broadcaster . . . does not embrace a right to snuff out the free speech of others.'
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Paragraph: 232 - But freedom of speech does not exist in the abstract. On the contrary, the right to speak can flourish only if it is allowed to operate in an effective forum—whether it be a public park, a schoolroom, a town meeting hall, a soapbox, or a radio and television frequency. For in the absence of an effective means of communication, the right to speak would ring hollow indeed.
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Paragraph: 237 - N98* Thus, although the broadcaster has a clear First Amendment right to be free from Government censorship in the expression of his own views and, indeed, has a significant interest in exercising reasonable journalistic control over the use of his facilities, N99* '(t)he right of free speech of a broadcaster . . . does not embrace a right to snuff out the free speech of others.' Id.,
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Paragraph: 172 - And it is anathema to the First Amendment to allow Government any role of censorship over newspapers, magazines, books, art, music, TV, radio, or any other aspect of the press. There is unhappiness in some circles at the impotence of Government. But if there is to be a change, let it come by constitutional amendment. The Commission has an important role to play in curbing monopolistic practices, in keeping channels free from interference, in opening up new channels as technology develops. But it has no power of censorship.
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Paragraph: 173 - N64* N65* It is said, of course, that Government can control the broadcasters because their channels are in the public domain in the sense that they use the airspace that is the common heritage of all the people. But parks are also in the public domain. Yet people who speak there do not come under Government censorship. Lovell v. Griffin, 303 U.S. 444, 450—453, 58 S.Ct. 666, 668—669, 82 L.Ed. 949; Hague v. CIO, 307 U.S. 496, 515—516, 59 S.Ct. 954, 963—964, 83 L.Ed. 1423. It is the tradition of Hyde Park, not the tradition of the censor, that is reflected in the First Amendment. TV and radio broadcasters are a vital part of the press; and since the First Amendment allows no Government control over it, I would leave this segment of the press to its devices.
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Paragraph: 221 - N66* As a practical matter, the Court's reliance on the Fairness Doctrine as an 'adequate' alternative to editorial advertising seriously overestimates the ability—or willingness—of broadcasters to expose the public to the 'widest possible dissemination of information from diverse and antagonistic sources.' As Professor Jaffe has noted, 'there is considerable possibility the broadcaster will exercise a large amount of self-censorship and try to avoid as much controversy as he safely can.' Indeed, in light of the strong interest of broadcasters in maximizing their audience, and therefore their profits, it seems almost naive to expect the majority of broadcasters to produce the variety and controversiality of material necessary to reflect a full spectrum of viewpoints. Stated simply, angry customers are not good customers and, in the commercial world of mass communications, it is simply 'bad business' to espouse—or even to allow others to espouse—the heterodox or the controversial. As a result, even under the Fairness Doctrine, broadcasters generally tend to permit only established—or at least moderated—views to enter the broadcast world's 'marketplace of ideas.'
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Paragraph: 232 - we have consistently held that the First Amendment embodies, not only the abstract right to be free from censorship, but also the right of an individual to utilize an appropriate and effective medium for the expression of his views.
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Paragraph: 237 - Although the overriding need to avoid overcrowding of the airwaves clearly justifies the imposition of a ceiling on the number of individuals who will be permitted to operate broadcast stations and, indeed, renders it N67* 'idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish,' it does not in any sense dictate that the continuing First Amendment rights of all nonlicensees be brushed aside entirely. Under the existing system, broadcast licensees are granted a preferred status with respect to the airwaves, not because they have competed successfully in the free market but rather, 'because of their initial government selection . . ..' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 400, 89 S.Ct. at 1812. And, in return for that 'preferred status,' licensees must respect the competing First Amendment rights of others. Thus, although the broadcaster has a clear First Amendment right to be free from Government censorship in the expression of his own views and, indeed, has a significant interest in exercising reasonable journalistic control over the use of his facilities, N68* '(t)he right of free speech of a broadcaster . . . does not embrace a right to snuff out the free speech of others.'
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Paragraph: 191 - N1* >N2* Experience has shown that unrestrained power cannot be trusted to serve the public weal even though it be in governmental hands. The fate of the First Amendment should not be so jeopardized. The constitutional mandate that the Government shall make 'no law' abridging freedom of speech and the press is clear; the orders and rulings of the Commission are covered by that ban; and it must be carefully confined lest broadcasting—now our most powerful media—be used to subdue the minorities or help produce a Nation of people who walk submissively to the executive's motions of the public good.
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