First Amendment for

Print, Broadcast, Cable and the Internet

PRINT: receives the greatest First Amendment protection; non-regulation model
• not licensed by the government

• content not subject to government oversight
  
   
  
• Miami Herald Publishing Co. v. Tornillo (74):

  The Herald had refused to print a reply by Pat L. Tornillo Jr. to an editorial critical of him in his unsuccessful race for the Florida Legislature in 1972. A Florida statute required newspapers that criticized political candidates in news or editorial columns to print the candidates’ replies.

  ISSUE: Does a state statute granting a political candidate a right to equal space to reply to criticism by a newspaper violate the First Amendment guarantee of a free press?

  Can government compel editors or publishers to print what reason tells them not to publish? The Supreme Court said it cannot.

  • REASONING:
    • Government compelling editors to publish what reason tells them not to publish is unconstitutional. "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."
    • The statute intrudes into the function of an editor: "It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."
    • Telling publishers what to publish is the same as telling them what not to publish. The "statute exacts a penalty" on the content of the newspaper. The economic reality is that newspapers can't "proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands."
    • The statute's requirement would lead to a "chilling effect" because the safe course for editors would be to avoid controversy, which would blunt or reduce political coverage.

BROADCAST: least FA protection; substantial government regulation

• Red Lion Broadcasting Co. v. FCC (1969): broadcasters do not enjoy the same First Amendment rights as do the print media

  The FCC’s personal attack rules not violate broadcasters' First Amendment rights. Broadcasters must give time for an individual to reply to a personal attack.

• 3 Rationales for broadcast regulation:

  1. History of regulation

  dating back to Wireless Ship Act of 1910

  2. Spectrum is a scarce, publicly owned resource A license equals a privilege to broadcast. The spectrum is an array of energy that includes radio waves. A limited number of radio stations can be on the air.

  • NBC v. FCC (1949): spectrum scarcity rationale adopted
  • Red Lion Broadcasting v. FCC (1969): broadcasters are public trustees 

  3. Pervasiveness (FCC v. Pacifica (1978))
  Broadcast media are intrusive and are seen and heard everywhere. The airwaves come into the home unbidden. The audience has no idea what is being broadcast until the receiver is turned on.

CABLE: more First Amendment rights than broadcasters, but less than publishers

• Los Angeles v. Preferred Communications Inc. (1986): Cable operators have First Amendment protection, but the Supreme Court didn’t specify the standards that courts should use to determine whether a cable operator’s First Amendment rights have been abridged.

  Lower court said the city violated the First Amendment by refusing to franchise more than one cable operator in any one area of the city. The city argued that the number of cable franchises had to be limited to minimize the demands on public property. The company argued that the city prohibited it from having a voice in south-central Los Angeles.

  Supreme Court: A city denying a cable company’s franchise must demonstrate that the city’s interests outweighs the cable operator’s First Amendment interests in communicating with viewers.

  Chief Justice Rehnquist: Cable "partakes of some of the aspects of speech and the communication of ideas as do the traditional enterprises of newspapers and book publishers, public speakers, and pamphleteers."

  The Court did not decide how to balance the interests. It remanded the case because it said it needed to know more about cable operations.

  U.S. Court of Appeals for 9th Circuit (1994): Although the governmental interests advanced by the city were substantial, permitting only one cable system "exacts too heavy a toll on the First Amendment interests at stake here. Competition in the marketplace of ideas -- as in every other market -- leads to a far greater diversity of viewpoints (and better service) than if a single vender is granted a . . . monopoly."

  The Supreme Court denied certiorari for a second petition.

   

• Turner Broadcasting System Inc. v. FCC (1994): Cable television operators should receive more First Amendment protection than broadcasters but not as much as print publishers.

  A federal statute allowing broadcasters to insist they be carried on local cable systems would have been constitutional if it had been narrowly tailored to serve an important government interest.

  First Amendment applies to cable television in two ways:

  1) If governmental regulation applies to or directly affects a cable television system’s content, the court applies strict scrutiny to determine if the regulation is justified.

  The government must show that the restriction on a cable operator’s First Amendment rights is needed to protect a governmental interest of the highest order.

  2) If the governmental regulation imposes only an incidental burden on a cable operator’s speech, or the regulation is not based on content, the court will apply the intermediate test.

  The government is required to show only an important or substantial interest.

  The Court said cable television is not limited by the same spectrum scarcity that restricts the number of broadcasters. However, cable operators exercise greater control than newspaper owners over who can speak in their medium in their communities. Newspaper owners cannot stop their readers from receiving other newspapers as effectively as cable companies can control the television programming received at home.

INTERNET: Not broadcasting. Not qualified First Amendment protection.

• Reno v. ACLU (1997): The special factors justifying regulation of broadcasting -- history of regulation, invasive nature and scarcity of frequency -- are not present in cyberspace.

Justice Stevens:

"Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry."

"Moreover, the Internet is not as ‘invasive’ as radio or television." Unlike communications received by radio or television, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended."

Though Justice Stevens acknowledged that sexually explicit material is widely available on the Internet, he agreed with the lower court’s finding that "users seldom encounter such content accidentally."

And "unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a ‘scarce’ expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds."

"Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox."

Level of First Amendment Protection?

The Supreme Court said it could not find any reason to qualify the level of First Amendment protection for the Internet.

"We agree with (the lower court) that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium."

 

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