Red Lion Broadcasting Co., Inc. v.

FCC The government has more authority over broadcast

Primary Holding media because of the scarcity rationale, which is based
It is permissible under the First Amendment to require on the limited space of the air waves. Broadcast entities
media outlets to make broadcast time available for receive licenses from the government, and their rights
responses to personal attacks. come with responsibilities to provide fair, unbiased
Facts coverage so that listeners are informed.
A Pennsylvania radio station, WGCB, was operated by
the Red Lion Broadcasting Co. It broadcasted a 15-
minute presentation by the Reverend Billy James
Hargis in its Christian Crusade Series, during which
Hargis discussed a book by Fred J. Cook entitled
Goldwater--Extremist to the Right. Hargis alleged that
Cook had been fired from the newspaper where he
worked because he had filed false charges against city
officials. He also claimed that Cook had supported
Communist sympathizer Alger Hiss, had worked for a
Communist publication, had criticized J. Edgar Hoover
and the CIA, and had written the Goldwater book to
smear his reputation.

Cook demanded reply time on the station to respond

to what he perceived as a personal attack. When
WGCB refused, the FCC became involved. It found
that Red Lion had failed to comply with the fairness
doctrine that affects broadcast media and requires
providing free reply time to the target of the attack as
well as sending him a tape, transcript, or summary of
the presentation. It ruled that the presentation was in
fact a public attack, which required offering free reply
time to Cook. The FCC also planned a rulemaking that
would allow it to more effectively enforce the fairness
doctrine and its implications for personal attacks. Red
Lion argued that this application of the fairness
doctrine was unconstitutional under the First
Amendment.
Opinions
Majority
 Byron Raymond White (Author)
 Earl Warren 
 Hugo Lafayette Black 
 John Marshall Harlan II 
 Potter Stewart 
 Thurgood Marshall 
 William Orville Douglas 
 William Joseph Brennan, Jr. 
The fairness doctrine, developed by the FCC, requires
radio and television broadcasters to present both sides
of public issues in discussions on broadcast stations. It
is based on the theory that broadcast frequencies are
limited, and many parties may be unable to express
their views through this medium if they lack
government assistance. The regulations and rulings are
constitutional and within the scope of the agency's
statutory authority. The First Amendment rights of
viewers and listeners are more important than the
rights of the broadcasters in this context.
Case Commentary
Miami Herald Pub. Co. v. Tornillo
Primary Holding
Newspapers are not required to publish replies to an
editorial with which people, such as the subject of the
editorial, may disagree.
Facts
Tornillo was a candidate for the Florida House of
Representatives. The Miami Herald criticized his
candidacy in editorials, and he sought to have it print
his verbatim replies to the criticism under a state right
of reply statute. It provided political candidates the
right to reply to hostile coverage in a newspaper.
When the Miami Herald refused, Tornillo sought
declaratory relief and an injunction. The state courts
disagreed on whether the right of reply statute was
constitutional under the First Amendment.
Opinions
Majority
 Warren Earl Burger (Author)
 William Orville Douglas 
 William Joseph Brennan, Jr. 
 Potter Stewart 
 Byron Raymond White 
 Thurgood Marshall 
 Harry Andrew Blackmun 
 Lewis Franklin Powell, Jr. 
 William Hubbs Rehnquist 
This law is a content-based restriction on a newspaper,
so it is a facial violation of the First Amendment.
Newspaper editors have the right to control the
contents of their publications, and the government is
not in a position to override their decisions while
protecting free speech.
Concurrence
 William Joseph Brennan, Jr. (Author)
 William Hubbs Rehnquist 
Concurrence
 White (Author)
Case Commentary
Although a politician is entitled to some limited degree
of protection against libel and slander, the press has
broad powers under the First Amendment to cover
topics of public interest.
FCC v. Pacifica Concurrence. The majority’s use of “channeling” will
not be effective because it is not possible to physically
Brief Fact Summary. A satiric humorist named George separate an audience in today’s world of broadcast
Carlin (Carlin) recorded a 12-minute monologue media.
entitled “Filthy Words” before a live audience in a
California theatre. Carlin began by referring to his Discussion. The decision was based upon the same
thoughts about the words that could not be said on the principles that are found within the law of nuisance. In
public airwaves. Then, Carlin proceeded to list those the case before the Supreme Court of the United States
words and repeat them over and over again. (Supreme Court), the majority focused upon the
prospect that children may be listening to the
Synopsis of Rule of Law. The concept of indecent is broadcast in question. Furthermore, the nature of radio
intimately connected with the exposure of children to is one in which the audience is constantly tuning in
language that describes, in terms patently offensive as and out and prior warnings cannot adequately protect
measured by contemporary community standards for the listener. Since children could be forever harmed by
the broadcast medium, sexual or excretory activities merely being around when such a broadcast is made,
and organs, at times of the day when there is the court found that the Petitioner could regulate the
reasonable risk that children may be in the audience. Respondent through “channeling” the indecent
communication to a more appropriate time and place.
Facts. On October 30, 1973, at 2:00 p.m., a New York The fact that the monologue was broadcast at 2:00 p.m.
radio station, owned by the Respondent, Pacifica in the afternoon made it more susceptible to regulation
Foundation (Respondent) broadcast the “Filthy by the Petitioner.
Words” monologue. A few weeks later, a man who
stated that he heard the broadcast while driving with
his young son, wrote a letter complaining to the
Petitioner, the Federal Communications Commission
(Petitioner). In response to the complaint, the
Respondent explained that the monologue had been
played during a program about contemporary society’s
attitude toward language and that, immediately before
its broadcast, listeners had been advised of the
monologue’s language. The Petitioner, after
characterizing the language as patently offensive,
though not necessarily obscene, issued a declaratory
order granting the complaint, but not imposing any
formal sanctions. The Petitioner concluded that the
language as broadcast was indecent and prohibited by
18 U.S.C. Section:1464, prohibiting the broadcast of
obscene, indecent or profane language. The United
States Court of Appeals reversed.

Issue. Whether the Petitioner has any power to

regulate a radio broadcast that is indecent but not
obscene?

Held. It is not necessary for the Petitioner to determine

that a communication is obscene before it may exercise
its regulatory power. The Petitioner can use its
regulatory power to “channel” indecent material to
times when children are not able, or much less likely,
to receive it. As a result, the Petitioner’s action is
sustained and the decision of the United States Court
of Appeals is reversed.

Dissent. An individual, in switching on a given radio

station, makes a decision to take part in an ongoing
public discourse. This action does not implicate the
fundamental privacy interests that the court is
concerned with.