Document ID: A:\CBS.TXT COLUMBIA BROADCASTING SYSTEM, INC. v. DEMOCRATIC NATIONAL COMMITTEE No. 71-863 SUPREME COURT OF THE UNITED STATES 412 U.S. 94; 93 S. Ct. 2080; 1973 U.S. LEXIS 4; 36 L. Ed. 2d 772; 1 Media L. Rep. 1855 October 16, 1972, Argued May 29, 1973, Decided * * Together with Nos. 71-864, Federal Communications Commission et al. v. Business Executives' Move for Vietnam Peace et al.; 71-865, Post-Newsweek Stations, Capital Area, Inc. v. Business Executives' Move for Vietnam Peace; and 71-866, American Broadcasting Cos., Inc. v. Democratic National Committee, also on certiorari to the same court. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. DISPOSITION: 146 U. S. App. D. C. 181, 450 F.2d 642, reversed. SYLLABUS: The Democratic National Committee requested a declaratory ruling from the Feder responsible entities" to present their views on public issues. The Business Executives' Mo ncements expressing the group's views on the Vietnam conflict and that the station's cover rohibited from having a policy of refusing to accept paid editorial advertisements by indi Amendment, at least when [***2] other sorts of paid announcements are accepted," and r the First Amendment requires broadcasters to accept paid editorial advertisements. Pp. 1 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to Parts I, II 1. The basic criterion governing use of broadcast frequencies is the right of the publi (a) In evaluating respondents' claims, great weight must be afforded the decisions of C (b) Congress has consistently rejected efforts to impose on broadcasters a "common carr volved to require that the broadcaster's coverage of important public issues must be adequ . 2. The "public interest" standard of the Communications Act, which incorporates First A (a) The FCC was justified in concluding that the public interest in having access to th e monopolized by those who could and would pay the costs, that the effective operation of (b) The difficult problems involved in implementing an absolute right of access would i ons. The FCC could properly take into account the fact that listeners and viewers constit Pp. 126-130. THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, concluded, e Government is neither a "partner" to the action complained of nor engaged in a "symbioti (a) Under the Communications Act a broadcast licensee is vested with substantial journa (b) The licensee's policy against accepting editorial advertising is compatible with th (c) The FCC has not fostered the licensee policy against accepting editorial advertisem COUNSEL: J. Roger Wollenberg argued the cause for petitioner [***5] in No. 71-863. Wi cause for petitioners in No. 71-864. With him on the brief were Acting Assistant Attorne ler and Michael Boudin. Vernon L. Wilkinson argued the cause for petitioner in No. 71-866 Joseph A. Califano, Jr., argued the cause for respondent Democratic National Committee Peace in Nos. 71-864 and 71-865. With him on the brief was Albert H. Kramer. + + Floyd Abrams and Corydon B. Dunham filed a brief for National Broadcasting Co., Inc., J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Fede JUDGES: Burger, C. J., announced the Court's judgment and delivered an opinion of the Cour J., joined. Stewart, J., filed an opinion concurring in Parts I, II, and III, post, p. 13 J., joined, post, p. 147. Douglas, J., filed an opinion concurring in the judgment, post, OPINIONBY: BURGER OPINION: [*97] [**2084] MR. CHIEF JUSTICE BURGER delivered the opinion of the Cou We granted the writs of certiorari in these cases to consider whether a broadcast licen ons Act of 1934, 48 Stat. 1064, as amended, 47 [***7] U. S. C. @ 151 et seq., or the Fir In two orders announced the same day, the Federal Communications Commission ruled that onal Committee, 25 F. C. C. 2d 216; Business Executives' Move for Vietnam Peace, 25 F. C. ndment; the court remanded the cases to the Commission to develop procedures and guideline The complainants in these actions are the Democratic [*98] National Committee (DNC) January 1970, BEM filed a complaint with the Commission charging that [***8] radio sta with many, but not all, broadcasters, followed a policy of refusing to sell time for spot rage of important public questions, including the Vietnam conflict, it was justified in re casions. BEM challenged the fairness of WTOP's coverage of criticism of that policy, but Four months later, in May 1970, DNC filed with the Commission a request for a declarato "That under the First Amendment to the Constitution and the Communications Act, a broad DNC claimed that it [***9] intended to purchase time from radio and television station articular broadcaster but claimed that its prior "experiences in this area make it [*99] n should decline to issue a ruling as requested." DNC cited Red Lion Broadcasting Co. v. F In two separate opinions, the Commission rejected respondents' claims that "responsible ss Doctrine. The Commission viewed the issue as one of major significance in administerin C. 2d, at 221. [***10] After reviewing the legislative history of the Communications ion rejected the demands of BEM and DNC. The Commission also rejected BEM's claim that WTOP had violated the Fairness Doctrine b e of the Vietnam conflict and that the station had adequately rebutted the charge by affid citing funds. The Commission noted that Congress has accorded special consideration for a pace of time generally allotted to spot advertisements. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The Commission's rulings against BEM's Fairness Doctrine complaint and in favor of D here. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***11] A majority of the Court of Appeals reversed the Commission, holding that "a flat ban on 450 F.2d, at 646. Recognizing that the broadcast frequencies are a scarce resource inhere asoned that a broadcaster's policy of airing commercial advertisements but not editorial a he broadcasters; rather, it remanded the cases to the Commission to develop "reasonable pr Judge McGowan dissented; in his view, the First Amendment did not compel the Commission "It is presently the obligation of a licensee to advance [***12] the public's right to to redress by reference to the fairness doctrine. Failure to do so puts continuation of t [*101] "This is the system which Congress has, wisely or not, provided as the alterna the permissible limits of constitutional choice." 146 U. S. App. D. C., at 205, 450 F.2d, Judge McGowan concluded that the court's decision to overrule the Commission and to remand ssue. I MR. JUSTICE WHITE's opinion for the Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. roadcasting is subject to an inherent physical limitation. Broadcast frequencies are a sca tisfactorily accommodated. The Court spoke to this reality when, in Red Lion, we said "it Because the broadcast media utilize a valuable and limited public resource, there is al broadcasters' claim that the Fairness Doctrine and two of its component rules violated th ause 'the public interest' requires it 'is not a denial [***14] of free speech.'" Id., e right of the viewers and listeners, not the right of the broadcasters, which is paramoun t right may not constitutionally be abridged either by Congress or by the FCC." Red Lion, Balancing the various First Amendment interests involved in the broadcast media and det ework of the regulatory scheme that has evolved over the course of the past half century. concerned. The problems of regulation are rendered more difficult because the [***15] utmoded 10 years hence. Thus, in evaluating the First Amendment claims of respondents, we must afford great wei "Once we get away from the bare words of the [First] Amendment, we must construe it as par as not to cripple the regular work of the government. A part of this work [**2087] is s has entrusted to the FCC. Therefore, every free-speech problem in the radio has to be considered with reference to t still the Commission should [***16] be given ample scope to do its job." 2 Z. Chafee, The judgment of the Legislative Branch cannot be ignored or undervalued simply because one the Commission on a constitutional question, or that we would hesitate to invoke the Cons that when we face a complex problem with many hard questions and few easy answers we do we es, we turn to an examination of the legislative and administrative development of our bro II This Court has on numerous occasions recounted the origins of our modern system of broa National Broadcasting [*104] [***17] Co. v. United States, 319 U.S.190, 210-217 o the passage of the Radio Act of 1927, 44 Stat. 1162, broadcasting was marked by chaos. "It quickly became apparent that broadcast frequencies constituted a scarce resource whose voices, none of which could be clearly and predictably heard." Red Lion, supra, at 376. But, once it was accepted that broadcasting was subject to regulation, Congress was confro One of the earliest and most frequently quoted statements [***18] of this dilemma i the early 1920's, he testified before a House Committee: "We can not allow any single person or group to place themselves in [a] position where the rial." Hearings on H. R. 7357 before the House Committee on the Merchant Marine and Fisher [*105] That statement foreshadowed the "tightrope" aspects of Government regulation of t that of these two choices -- private or official censorship -- Government censorship woul The legislative history of the Radio Act of 1927, the model for our present statutory s istic discretion with the licensee. Congress specifically dealt with -- and firmly reject -- those whose views were ultimately rejected -- strenuously objected to the unregulated f such power to be "private censorship," which should be controlled by treating broadcaste the Committee on Interstate Commerce. The [*106] bill that emerged from the Committee "If any licensee shall permit a broadcasting station to be used . . . by a candidate or ca sting station, and with respect to said matters the licensee shall be deemed a common carr When the bill came to the Senate floor, the principal architect of the Radio Act of 1927, Senator Dill explained the need for the amendment: "When we recall that broadcasting today is purely voluntary, and the listener-in pays noth a common carrier and compelled to accept anything and everything that was offered him so The Senators were also sensitive to the problems involved in legislating "equal opportunit "['Public questions'] is such a general [***21] term that there is probably no questio tion that the Senator from Iowa mentions about candidates, namely, that they would have to - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Congressman Davis, for example, stated on the floor of the House the view that Congr "I do not think any member of the committee will deny that it is absolutely inevitable tha , and to force them to give equal service and equal treatment to all." 67 Cong. Rec. 5483 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Senate adopted Senator Dill's amendment. The provision finally enacted, [**2089] nother proposal that would have imposed a limited obligation on broadcasters to turn over cifically provides that "a person engaged in radio broadcasting shall not, [*109] inso - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Section 315 (a) now reads: "If any licensee shall permit any person who is a legally qualified candidate for any p Provided, That such licensee shall have no power of censorship over the material broadcas earance by a legally qualified candidate on any -- "(1) bona fide newscast, "(2) bona fide news interview, "(3) bona fide news documentary (if the appearance of the candidate is incidental to th "(4) on-the-spot coverage of bona fide news events (including but not limited to politi "shall not be deemed to be use of a broadcasting station within the meaning of this subsec ntaries, and on-the-spot coverage of news events, from the obligation imposed upon them un . S. C. @ 315 (a). [***23] n4 The Senate passed a provision stating that: "If any licensee shall permit any person to use a broadcasting station in support of or in ty to an equal number of other persons to use such station in support of an opposing candi opposite views on such public questions." See Hearings on S. 2910 before the Senate Committee on Interstate Commerce, 73d Cong., 2d 85, 73d Cong., 2d Sess., 49. Also noteworthy are two bills offered in 1934 that would have restricted the control of onsored by religious, charitable, or educational associations. H. R. 7986, 73d Cong., 2d d the Commission to "reserve and allocate only to educational, religious, agricultural, la or Dill explained why the Committee had rejected the proposed amendment, indicating that t "MR. DILL. . . . If we should provide that 25 percent of time shall be allocated to no and how much of it to agriculture, how much of it to labor, how much of it to fraternal o e Jews." 78 Cong. Rec. 8843. Senator Dill went on to say that the problem of determining the proper allocation of time n5 Section 3 (h) provides as follows: "'Common carrier' or 'carrier' means any person engaged as a common carrier for hire, i t subject to this chapter; but a person engaged in radio broadcasting shall not, insofar a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**2090] Other provisions of the 1934 Act also evince a legislative desire to preserv ty to issue renewable three-year licenses to broadcasters n6 and to promulgate rules and r ovides that: "Nothing in this chapter shall be understood or construed to give the Commission the po by the Commission which shall interfere with the right of free speech by means of radio - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 48 Stat. 1083, as amended, 47 U. S. C. @ 307. n7 Section 303, 48 Stat. 1082, as amended, 47 U. S. C. @ 303, provides in relevant part "Except as otherwise provided in this chapter, the Commission from time to time, as pub . . . . "(b) Prescribe the nature of the service to be rendered by each class of licensed stati . . . . "(r) Make such rules and regulations and prescribe such restrictions and conditions, no - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - From these provisions it seems clear that Congress intended to permit private broadcast e private journalistic interests of the broadcasters will government power be asserted wit unication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F.2d 994 (1966) Subsequent developments in broadcast regulation illustrate how this regulatory scheme h issues, is the Commission's "Fairness Doctrine," which evolved gradually over the years s the doctrine imposes two affirmative responsibilities on the broadcaster: coverage of issu ne obligations, the broadcaster must provide free time for the presentation of opposing vi o do so. See John J. Dempsey, 6 P & F Radio Reg. 615 (1950); Red Lion, supra, at 378. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 In 1959, Congress amended @ 315 of the Act to give statutory approval to the Fairnes For a summary of the development and nature of the Fairness Doctrine, see Red Lion Broa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**2091] Since it is physically impossible to provide time for all viewpoints, howeve n deciding how best to fulfill the Fairness Doctrine obligations, n9 although that discret ndaries as follows: "The most basic consideration in this respect is that the licensee cannot rule off the air oices on controversial issues which are of importance to his listeners. . . . This means run counter to the 'profound national commitment that debate on public issues should be u (n. 18) (1969) . . . ." 25 F. C. C. 2d, at 222-223. [***29] - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 See Madalyn Murray, 5 P & F Radio Reg. 2d 263 (1965). Factors that the broadcaster m "In determining whether to honor specific requests for time, the station will inevitably b of broadcast time, or whether there may not be other available groups or individuals who m 13 F. C. C. 1246, 1251-1252 (1949). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus, under the Fairness Doctrine broadcasters are responsible for providing the listen s "the right of the public to be [***30] informed, rather than any right on the part o torializing by Broadcast Licensees, 13 F. C. C. 1246, 1249 (1949). Consistent with that ph owie A. Crittenden, [**2092] 18 F. C. C. 2d 499 (1969); Margaret Z. Scherbina, 21 F. C. F. C. C. 2d 833 (1968); U.S. Broadcasting Corp., 2 F. C. C. 208 (1935). Congress has not y ted private individuals with a right of access. n13 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 The Commission has also adopted various component regulations under the Fairness Do at "when, during the presentation of views on a controversial issue of public importance, im an opportunity to respond. E. g., 47 CFR @ 73.123. Similarly, the "political editorial . E. g., id., @ 73.123. The Commission, of course, has taken other steps beyond the Fairness Doctrine to expand More recently, the Commission promulgated rules limiting television network syndication p n11 The Court of Appeals, respondents, and the dissent in this case have relied on dict l issues. In that case the complaint alleged, not only that the station had a policy of r s presently before us. Furthermore, the decision was handed down four years before the Com ecision is read without reference to the allegation of discrimination, it stands as merely has not been followed since and has been modified by the Fairness Doctrine. n12 In 1959, as noted earlier, Congress amended @ 315 (a) of the Act to give statutory 934 Act to authorize the Commission to revoke a station license "for willful or repeated f ederal elective office on behalf of his candidacy." Campaign Communications Reform Act of lable to political candidates. Farmers Union v. WDAY, 360 U.S. 525, 534 (1959). See FCC M Commerce, 88th Cong., 1st Sess., on H. J. Res. 247, pp. 84-90. [***32] n13 See, e. g., H. R. 3595, 80th Cong., 1st Sess. (1947). A more recent proposal was o "(d) Licensees shall provide a reasonable amount of public service time to authorized r ntatives on issues of public importance. The public service time required to be provided 209, 91st Cong., 2d Sess. (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - With this background in mind, we next proceed to consider whether a broadcaster's refus III That "Congress shall make no law . . . abridging the freedom of speech, or of the press usly considered whether the action of a broadcast licensee such as that challenged here is . See Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and The Court of Appeals held that broadcasters are instrumentalities of the Government for as "proxies" or "'fiduciaries' of the people." 146 U. S. App. D. C., at 191, 450 F.2d, at whether a particular licensee action is subject to First Amendment restraints. n14 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The dissent offers the same analysis as the Court of Appeals. As one distinguished ctions on Fairness and Access, 85 Harv. L. Rev. 768, 784 (1972). The notion that broadcast as Professor Jaffe observes, "not entirely satisfactory." Id., at 783. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***34] In dealing with the broadcast media, as in other contexts, the line between private co tion is alleged there must be cautious analysis of the quality and degree of Government re ttributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 72 [*116] In deciding whether the First Amendment encompasses the conduct challenged her emination of ideas and information. More than 7,000 licensed broadcast stations undertake As we have seen, with the advent of radio a half century ago, Congress was faced with a Long before the impact and potential of the medium was realized, Congress opted for a sys toward private enterprise, but by a desire to maintain for licensees, so far as consisten the Commission from interfering with the exercise of free speech over the broadcast frequ atement that broadcast licensees are not to be treated as common carriers, obliged to acce independence for the broadcast licensee. [***36] n15 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The dissenting view would appear to "want to have it both ways" on the question of lly all aspects of the broadcast industry." "Indeed," the dissent suggests, "federal agenc l need for a right of access, the dissent objects to the substantial independence afforded ts to be covered, the manner of presentation and, perhaps most important, who shall speak. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*117] The regulatory scheme evolved slowly, but very early the licensee's role deve mission acts in essence as an "overseer," but the initial and primary responsibility for f the role of the licensee as a journalistic "free agent" call for a delicate balancing of e First Amendment values written into the Radio Act and its successor, the Communications The tensions inherent in such a regulatory structure emerge more clearly when we compar y two factors: first, the acceptance of a sufficient number of readers -- and hence advert c [***38] freedom but not as large as that exercised by [*118] a newspaper. A lic mmission must oversee without censoring. This suggests something of the difficulty and de g problems and needs. The licensee policy challenged in this case is intimately related to the journalistic r e examined as an abstract proposition, but must be viewed in the context of its journalist sed on a journalistic judgment that 10- to 60-second spot announcements are ill-suited to comprehensive form. Obviously the licensee's evaluation is based on its own journalistic j Moreover, the Commission has not fostered the licensee policy challenged here; it has s e no Commission policy thwarting the sale of time to comment on public issues." 25 F. C. C e balanced coverage of issues and events, it has broad discretion to decide how that obli e situations the public interest requires licensees to re-examine their policies with resp he sphere of journalistic discretion which Congress has left with the licensee. Thus, it cannot be said that the Government is a "partner" to the action of the broadca Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 174-177 (1972), with Burton v. Wilmington Par s merely permitted or failed to prohibit such acts. Our conclusion is not altered merely because the Commission rejected the claims of BEM S. 451 (1952), we found governmental action sufficient to trigger First Amendment protecti stall radio receivers in its public buses was within the reach of the First Amendment, the agency investigated the challenged policy and approved it on public interest standards. I [*120] Here, Congress has not established a regulatory scheme for broadcast licensees that certain journalistic decisions are for the licensee, subject only to the restrictions ction the carrier's interest in exercising discretion over the content of communications f no protection [***42] from the First Amendment. See United States v. Paramount Pictur Were we to read the First Amendment to spell out governmental action in the circumstanc ive area so sweeping a concept of governmental action would go far in practical effect to ld only broadly accountable to public interest standards. To do this Congress, and the Co countability and the desired private control of the media. More profoundly, it would be anomalous for us to hold, in the name of promoting the con [***43] To do so in the name [*121] of the First Amendment would be a contradict oadcast licensees would be antithetical to the very ideal of vigorous, challenging debate The concept of private, independent broadcast journalism, regulated by Government to as f journalistic independence could not co-exist with a reading of the challenged conduct of 96] therefore conclude that the policies complained of do not constitute governmental ac assachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (CA1 1950); Po IV There remains for consideration the question whether the "public interest" standard of on of the First Amendment. In resolving those issues, we are guided by the "venerable pri d Lion, 395 U.S., at 381. Whether [*122] there are "compelling indications" of error in the Act. Many of those policies, as the legislative history makes clear, were drawn from whether the various interests in free expression of the public, the broadcaster, and the i nd that the interest of the public is our foremost concern. With broadcasting, where the hall speak, but that everything worth saying shall be said" is peculiarly appropriate. Po At the outset we reiterate what was made clear earlier that nothing in the language of ejected various legislative attempts that would have mandated a variety of forms of indivi umstances. [***46] Rather, the point is that Congress has chosen to leave such question hat on balance the undesirable effects of the right of access urged by respondents would o The Commission was justified in concluding that the public interest in providing access wealth. Cf. Red Lion, supra, at 392. Even under a first-come-first-served system, propos to purchase time more frequently. Moreover, there is the substantial danger, as the Court one political persuasion. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 See 25 F. C. C. 2d 216, 230, 234-235 (Johnson, dissenting). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**2097] These problems would not necessarily be solved by applying the Fairness Doct s shades of opinion on the issue discussed in the advertisement, the affluent could still als and groups the opportunity for self-initiated speech -- would have little meaning to t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 To overcome this inconsistency it has been suggested that a "submarket rate system" justifiably, as raising "incredible administrative problems." Jaffe, The Editorial Respon - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***48] [*124] If the Fairness Doctrine were applied to editorial advertising, there is also nsibilities a broadcaster might well be forced to make regular programming time available rosion of the journalistic discretion of broadcasters in the coverage of public issues, an public interest would no longer be "paramount" but, rather, subordinate to private whim e al or insignificant or already fairly covered by the broadcaster. 146 U. S. App. D. C., a ts suggest might be appropriate, the question arises whether we would have abandoned more Nor can we accept the Court of Appeals' view that every potential speaker is "the best ntrary. For better or worse, editing is what editors are for; and editing is selection an [*125] provided. Calculated risks of abuse are taken in order to preserve higher value remedy other than a spirit of moderation and a sense of responsibility -- and civility -- It was reasonable for Congress to conclude that the public interest in being informed r ally followed in the regulation of broadcasting Congress and the Commission could appropri ome assurance that the broadcaster will be answerable if he fails to meet its legitimate n point of view. To agree that debate on public issues should be "robust, and wide-open" d The Court of Appeals discounted those difficulties by stressing that it was merely mand 63. The court suggested that broadcasters could place an "outside limit on the total amoun ew groups or a few viewpoints." Id., at 202, [*126] 203, 450 F.2d, at 663, 664. If the n could make necessary adjustments." Id., at 203, 450 F.2d, at 664. Thus, without providin on's ability to overcome any difficulties, the court remanded the cases to the Commission By minimizing the difficult problems involved in implementing such a right [***52] of nlargement of Government control over the content of broadcast discussion of public issues regulations and procedures to sort out requests to be heard -- a process involving the ve surveillance, as is not true with respect to private media, see National Broadcasting Co. tself. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 See n. 8, supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***53] Under a constitutionally commanded and Government supervised right-of-access system urg onduct, deciding such questions as whether a particular individual or group has had suffic for the ailment respondents complain of. Under the Fairness Doctrine the Commission's responsibility is to judge whether a licen es under a right-of-access system would tend to draw it into a continuing case-by-case det principles against control of speech content would need to be relaxed with respect to edi mission's discretion to construe the Act so as to avoid such a result. n21 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 See Report on Editorializing by Broadcast Licensees, 13 F. C. C., at 1251-1252. n20 See Note, 85 Harv. L. Rev. 689, 697 (1973). n21 DNC has urged in this Court that we at least recognize a right of our national part parties over other groups and individuals. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission is also entitled to take into account the reality that in a very real se e" nature of the broadcast audience was recognized as early as 1924, [*128] when [** ons has -- to ignore advertising in which he is not interested -- and he may resent its in n's power to promulgate rules regarding cigarette advertising, Judge Bazelon, writing for "Written messages are not communicated unless they are read, and reading requires an affir ading cigarette jingle by heart. Similarly, an ordinary habitual television watcher can a nal impact of this pervasive propaganda, which may be heard even if not listened to, but i cert. denied, 396 U.S. 842 (1969). It is no answer to say that because we tolerate pervasive commercial advertisements we can - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 Reprinted in Hearings before the Senate Committee on Interstate Commerce on Radio C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The rationale for the Court of Appeals' decision imposing a constitutional right of acc s. The court relied on decisions holding that state-supported school newspapers and publi also attempted to [***57] analogize this case to some of our decisions holding that St wler v. Rhode Island, 345 U.S. 67 [**2100] (1953); Niemotko v. Maryland, 340 U.S. 268 decisions in Grayned v. City of Rockford, 408 U.S. 104 (1972), and Police Dept. of Chicago 93, but prohibited demonstrations for any other purposes on the streets and sidewalks wit - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 Lee v. Board of Regents of State Colleges, 306 F.Supp. 1097 (WD Wis. 1969), aff'd, y Church, Inc. v. City of Tacoma, 76 Wash. 2d 63, 455 P. 2d 350 (1969); Wirta v. Alameda-C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***58] Those decisions provide little guidance, however, in resolving the question whether the e an affirmative and independent statutory obligation to provide full and fair coverage of s case. The question here is not whether there is to be discussion of controversial issue The opinion of the Court of Appeals asserted that the Fairness Doctrine, insofar as it The present system, the court held, "conforms . . . to a paternalistic structure in which pp. D. C., at 195, 450 F.2d, at 656. The forced sale of advertising time for editorial spo sed to programming time, involves a "special and separate mode of expression" because adve vertising time for editorial messages "may well ignore opportunities to enliven and enrich broadcasting from an identifiable, regulated entity -- the licensee -- to unregulated spe We reject the suggestion that the Fairness Doctrine permits broadcasters to preside ove istently high-quality treatment of all [*131] public events and issues; but the remedy octrine, it is required to "present representative community views and voices on controver ive manner . . . ." 25 F. C. C. 2d, at 222. A broadcaster neglects that obligation only at Conceivably at some future date Congress or the Commission -- or the broadcasters -- ma evision will afford increased opportunities for the discussion of public issues. In its p "shall maintain at least one specially designated, noncommercial [***61] public access c necessary for the production of programming for such a channel." 37 Fed Reg. 3289, @ 76.2 For the present, the Commission is conducting a wide-ranging study into the effectivene et 19260, 30 F. C. C. 2d 26, 36 Fed. Reg. 11825. Among other things, the study will attemp ." 30 F. C. C. 2d, at 33. The Commission made it clear, however, that it does not intend t to the decision of the Court of Appeals in this case and hearings are under way. [***62] - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 Subsequent to the announcement of the Court of Appeals' decision, the Commission ex r we granted certiorari and stayed the mandate of the Court of Appeals, the Commission wit Fed. Reg. 4980. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The problems perceived by the Court of Appeals majority are by no means new; as we have le regulation compatible with the First Amendment rights of the public and the licensees. cess into a constitutional holding. See American Commercial Lines, Inc. v. Louisville & The judgment of the Court of Appeals is Reversed. CONCURBY: STEWART; WHITE; BLACKMUN; DOUGLAS CONCUR: MR. JUSTICE STEWART, concurring. While I join Parts I and II of the Court's opinion, and the opinion in Part III, my vie [*133] The First Amendment prohibits the Government from imposing controls upon the p e dissenters today agree, that the First Amendment requires the Government to impose contr ding that private broadcasters are Government. This is a step along a path that could eve rnmental controls upon the press as a majority of this Court at any particular moment migh - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 U.S. Const., Amdt. I, provides, in pertinent part, that "Congress shall make no law - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**2102] I There is some first-blush appeal in seeking out analogies from areas of the law where g ction. n2 The evolution of the "state action" concept under the Fourteenth Amendment is on publicly regulated bus company that had been approved by the regulatory commission was hel mated Food Employees v. Logan Valley Plaza, 391 U.S. 308, Marsh v. Alabama, 326 U.S. 501; - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 See Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308; Railway Employes n3 "Conduct that is formally 'private' may become so entwined with governmental policie 9. Earlier, in Burton v. Wilmington Parking Authority, 365 U.S. 715, the Court held that a the proscription of the Fourteenth Amendment. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***66] The problem before us, however, is too complex to admit of solution by simply analogizi accepting analogies from cases dealing with quasi-public racial discrimination, regulated es. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 See, e. g., United States v. Paramount Pictures, Inc., 334 U.S. 131, 166. The Federa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - When Congress enacted the Radio Act of 1927, 44 Stat. 1162, and followed it with the Fe [***67] every member of the public could broadcast over the air as he chose, since the the Federal Communications Commission), was to license broadcasters for no more than three - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 For a history of regulatory legislation regarding broadcasters, see Red Lion Broadca - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Scarcity meant more than a need to limit access. Because access was to be limited, it s [the licensee's] broadcasts." FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475. luded some regulation of programming. Writing in defense of Commission regulations regardi powered to deal only with technical and engineering impediments to the 'larger and more ef Over time, federal regulation of broadcasting in the public interest has been extensive -reply, and fair-coverage-of-controversial-issue requirements. n6 In Red Lion Broadcasting rt said: "Where there are substantially [***69] more individuals who want to broadc eak, write, or publish. . . . . . . . ". . . Because of the scarcity of radio frequencies, the Government is permitted to put radio and their collective right to have the medium function consistently with the ends a The Fairness Doctrine has been held applicable to paid advertising as well as to other pro on the part of listener [*137] groups in Commission licensing proceedings. Office of - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The personal-attack and editorial-reply rules appear at 47 CFR @@ 73.123, 73.300, 73 s. United Broadcasting Co., 10 F. C. C. 515; New Broadcasting Co., 6 P & F Radio Reg. 258 ed at the broadcaster's own expense if necessary, Cullman Broadcasting Co., 25 P & F Radio & F Radio Reg. 615. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Throughout this long history of regulation, however, it has been recognized that broadc self, the regulatory legislation makes clear what some of these freedoms are. Section 3 ( he Act, they would be subject to 47 U. S. C. @@ 201, 202. Section 201 provides, in pertin "(a) It shall be the duty of every common carrier engaged in interstate or foreign comm [**2104] Section 202 provides that: "(a) It shall be unlawful for any common carrier to make any unjust or unreasonable dis , by any means or device, or to make or give any undue or unreasonable preference or advan ce or disadvantage." [***72] The Act also specifically gives licensees "freedom of speech": "Nothing in this chapter shall be understood or construed to give the Commission the po the Commission which shall interfere with the right of free speech by means of radio comm Thus, when examined as a whole, the Federal Communications Act establishes a system of tever additional protections the First Amendment may provide, important statutory freedoms In Red Lion, supra, this Court held that, despite the First Amendment, the Commission m e. I agreed with the Court in Red Lion, although with considerable doubt, because I thoug roadcasters to accept some amount of editorial advertising as part of the public interest e to determine whether this additional governmental control of broadcasters was consistent r reject such advertising as they saw fit. The Court of Appeals held that the First Amend ng not only raises a serious statutory question under @ 3 (h) of the Act, which provides t The dissenting opinion today argues, in support of the decision of the Court of [***7 dcasters into common carriers. The respondents argue, somewhat differently, that the Cons lancing "competing First Amendment values." But if private broadcasters are Government, ho it does not consider "responsible?" The First Amendment protects the press from governmental interference; it confers no an Amendment rights. They would be obligated to grant the demands of all citizens to be hea uisiana, [*140] 379 U.S. 536, 554; Poulos v. New Hampshire, 345 U.S. 395; Cox v. New H ent purposes -- then broadcasters are inevitably drawn to the position of common carriers. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Government is not restrained by the First Amendment from controlling its own express endment is to protect private expression and nothing in the guarantee precludes the govern n8 "The right to speak can flourish only if it is allowed to operate in an effective fo n9 Professor Emerson has recognized the scope of the "access" argument: "The licensee t t First Amendment rights of his own, except as to his own expression." Supra, n. 7, at 663 Though the licensee would be free to say what it wished during its own broadcasting, wh cording to its own judgment, values, and priorities. Cf. Police Dept. of Chicago v. Mosle lop a procedurally fair and substantively nondiscriminatory system for controlling access, - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***77] To hold that broadcaster action is governmental action would thus produce a result whol approving those legislative [*141] provisions. n11 As Judge McGowan wrote, dissenting "This is the system which Congress has, wisely or not, provided as the alternative to s of [**2106] constitutional choice." 146 U. S. App. D. C. 181, 205, 450 F.2d 642, 666 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367; National Broadcasting Co. v. United n11 None of this suggests any disagreement on my part with the evolution of "state acti ted a challenge to broadcaster policy might be sufficient to constitute "state action." Th - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***78] II Part IV of the Court's opinion, as I understand it, seems primarily to deal with the re y concurring Brethren understand Part IV as a discussion of the First Amendment issue that ssue does not affect the outcome of this case." Post, at 148. The Court of Appeals also c nterpreting the fairness and public interest requirements 'in light of the First Amendment [*142] I find this reasoning quite wrong and wholly disagree with it, for the simple could not "in the public interest" place a requirement on broadcasters that constituted statute require broadcasters to do certain things "in the public interest" that the First sters that would not be compelled or even permitted by the First Amendment itself if broad - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 The basis for a Fairness Doctrine is statutory, not constitutional. As the Court s "In light of the fact that the 'public interest' in broadcasting clearly encompasses th inception a doctrine that these issues must be discussed, and fairly; and the fact that Co fairness doctrine and its component personal attack and political editorializing regulati - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***80] If the "public interest" language of the statute were intended to enact the substance o use of the First Amendment, the broadcasters could not do under the statute. But this the the right of free speech by means of radio communication," a nullity. Were the Government exercise of editorial judgment. It would not be permitted in the name of "fairness" to de freedoms under the Act. The constitutional and statutory issues in these cases are thus q In evaluating the statutory claims, the starting point must be the "venerable [***81] " Red Lion, 395 U.S., at 381. [**2107] Though I have no doubt that the respondents here were attempting to communic sages. Contrary to what is said in dissent today, it is not the case that a seller of goo , at 200. There is no indication that the thousands of broadcasters regulated by the Comm sements were rejected by a single radio station. Of the three television networks, only o 44] the type at issue here. This variation in broadcaster policy reflects the very kind o - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 The Democratic National Committee cited this very lack of uniformity as a reason fo est for a declaratory ruling before the Commission, it stated: "In addition to the three national commercial networks, as of April 1, 1970, there were, o f these stations have common owners, it does not necessarily follow that every station own - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Even though it would be in the public interest for [***83] the respondents' adverti rest would be served by forcing every broadcaster to accept any particular kind of adverti no "compelling indications" that the Commission misunderstood its statutory responsibility III There is never a paucity of arguments in favor of limiting the freedom of the press. e are many more broadcasting stations than there are daily newspapers. n14 And it [*145] y. n15 The reasoning of the Court of Appeals would then lead to the conclusion that the Fi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 There are 1,792 daily newspapers in the United States. Ayer Directory of Publicati n15 Newspapers and other periodicals receive a Government subsidy in the form of second - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Perhaps I overstate the logic of the opinion of the Court of Appeals. Perhaps its "bala s were "responsible." And perhaps it would require [**2108] that such access be compelle grossly violative of the First Amendment's guarantee of a free press. For that guarantee I profoundly trust that no such reasoning as I have attributed to the Court of Appeals and march forth in blind pursuit of its "values." Those who wrote our First Amendment put their faith in the proposition that a free pres many times confirmed the wisdom of their choice. This Court was persuaded in Red Lion to accept the Commission's view that a so-called F ided that broadcasters' First Amendment rights were "abridgeable." But surely this does no mendment "values" alone, I could not agree with the Court of Appeals. For if those "value posed by bureaucratic fiat, the choice must be for freedom. MR. JUSTICE WHITE, concurring. I join Parts I, II, and IV of the Court's opinion and its judgment. I do not, however, I do not suggest that the conduct of broadcasters must always, or even often, be consi e Commission, including the Fairness Doctrine, are here sufficiently implicated to require cations Act and the First Amendment should be interpreted to confer a right of access on t s. To confer a right [*147] of access, it said, would be contrary to the Communication broadcasters have wide discretion with respect to the method of compliance. There is no r ended that there be no right of access such as claimed in these cases; and, in the Commiss ting member, that rejection of the asserted right of access was wholly consistent with the In this context I am not ready to conclude, as is done in the Part III opinion, that th [***88] opinion, that Congress or the Commission is sufficiently involved in the denial utionality of the Fairness Doctrine, and accepting Part IV of the Court's opinion, I have hod of compliance with the Fairness Doctrine is consistent with the First Amendment. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE POWELL joins, concurring. In Part IV the Court determines "whether, assuming governmental action, broadcasters ar it froze the "continuing search for means to achieve reasonable regulation compatible wit t compel the result reached by [***89] the Court of Appeals demonstrates that the govern MR. JUSTICE DOUGLAS, concurring in the judgment. While I join the Court in reversing the judgment below, I do so for quite different rea My conclusion is that TV and radio stand in the same protected position under the Firs trusion is perhaps even more relevant to TV and radio than it is to newspapers and other l iews of the common good on the people. In popular terms that view has been expressed as f "The ground rules of our democracy, as it has grown, require a free press, not necessarily -raters, whereupon everyone else, from first-raters [***90] to fourth-raters, moves with reviewing Epstein, News From Nowhere: Television and the News (1972), Book World, Washingt I Public broadcasting, of course, raises quite different problems from those tendered by Congress has authorized the creation of the Corporation for Public Broadcasting, whose ns made up this nationwide public broadcasting system as of June 30, 1972. See 1972 Corpo ed States Government." Yet, since it is a creature of Congress whose management is in the as that word is used in the First Amendment. If these cases involved that Corporation, we o [**2110] Bee. The Government as owner and manager would not, as I see it, be free t olitics, ideological slants, rightist or leftist tendencies could play no part in its desi nfluence, Washington Post, Apr. 27, 1973, p. E2. More specifically, the programs tendered Governmental action may be evidenced by various forms of supervision or control of priv ***92] the public domain are governmental actions, so far as constitutional duties and r 7 v. Irvis, 407 U.S. 163, 179 (dissenting). It is somewhat the same idea expressed by the ncy, the thesis of my Brother BRENNAN would inexorably follow. For a licensee of the Fede its time be bound to disseminate all views. For, being an arm of the Government, it would e is a federal agency within the context of these cases. II If a broadcast licensee is not [***93] engaged in governmental action for purposes the public as well as to publishers and editors of newspapers to be informed that a newly business to make sure that fair comment on all current issues was made. In 1970 Congress on greater than 25,000 and in which only one separately owned newspaper of general circula munications Commission power to enforce the requirement. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 H. R. 18927, 91st Cong., 2d Sess. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***94] Thomas I. Emerson, our leading First Amendment scholar, has stated that: "Any effort to solve the broader problems of a monopoly press by forcing newspapers to cov ws without achieving any real diversity." The System of Freedom of Expression 671 (1970). The sturdy people who fashioned the First Amendment would be shocked at that intrusion anklin, one of the Founders who was in the newspaper business, wrote in simple and graphic that the publisher must open his columns "to any and all controversialists, especially if paid for it. Franklin disagreed, declari with private altercations." n2 F. Mott, American Journalism 55 (3d ed. 1962). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Cong - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is said that TV and radio have become so powerful and exert such an influence on the erest on the public mind. But even Thomas Jefferson, who knew how base and obnoxious the "I deplore . . . the putrid state into which our newspapers have passed, and the malign "It is however an evil for which there is no remedy, our liberty depends [***96] on t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 "To say that the media have great decisionmaking powers without defined legal respon e New York Times 'accountable' for its anti-Vietnam policy? Require it to print letters to rk Times, the Chicago Tribune, NBC, ABC, and CBS play a role in policy formation, but clea on of the two billion dollar New York bond issue, the defeat of Carswell and Haynsworth, o re mere unthinking automatons manipulated by the media, without interests, conflicts, or p ower and underestimation of the good sense of the American public." Jaffe, The Editorial R n4 T. Jefferson, Democracy 150-151 (Padover ed. 1939). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Of course there is private censorship in the newspaper field. But for one publisher wh As stated recently by Harry Kalven, Jr.: "It is an insufficiently noticed aspect of the First Amendment that it contemplates the vi ish under freedom of discussion. It is rather then that they must survive and endure aga e big reason [**2112] why policy dictates that government keep its hands off communica "Free, robust criticism of government, its officers, and its policy is the essence of ment cannot reciprocally criticize the performance of the press, its officers, and its pol will it or not, it is a critic who carries the threat of the censor and more often than no "The balance struck, then, is avowedly, and even enthusiastically, one-sided. The citiz and motives of its critics." 6 The Center Magazine, No. 3, pp. 36-37 (May/June 1973). Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, in a carefully written opinion that was t it. The Fairness Doctrine has no place in our First Amendment regime. It puts the head - as in other years -- there is clamoring to make TV and radio emit the messages that cons The same cry of protest has gone up against the newspapers and magazines. When Senator and McCarthyism 54 (1972)), there were scarcely a dozen papers in this Nation that stood s of publishers. Under our Bill of Rights people are entitled to have extreme ideas, sill The same is true, I believe, [***100] of TV and radio. At times they have a nausea ry home. Both TV and radio news broadcasts frequently tip the news one direction or another and dio, newspapers, or magazines -- whether of excellence or mediocrity -- are beyond the rea ment puts beyond the reach of Government federal regulation of news agencies save only bus itrust laws against a news-gathering agency was held to be not inconsistent with First Ame Government has no business in collating, dispensing, and enforcing, subtly or [**2113] [*156] by the First Amendment against governmental ban or control. There has been debate over the meaning of the First Amendment as applied to the States as applied to the Federal Government. See Roth v. United States, 354 U.S. 476, 502-503 (H e other parts of the Bill of Rights, was at the outset applicable only to the Federal Gove he press . . . ." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Barron v. Mayor of Baltimore, 7 Pet. 243. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***102] That guarantee, can, of course, be changed by a constitutional amendment which can make ment cannot be done by judicial fiat or by congressional action. The ban of "no" law that lainly unconstitutional, as Jefferson believed. Jefferson, indeed, said that by reason of "libels, falsehood, and defamation, equally with heresy and false religion, are withheld n to the Act entitled "An Act for the Punishment of certain Crimes against the United Stat . And see 15 Writings of Thomas Jefferson 214 (Memorial ed. 1904); [***103] 14 id., at 1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The press in this country, like that of Britain, was at one time subject to contempt 2, 267. Federal habeas corpus, however, is available to give a man his freedom and the pro e had where the local atmosphere has saturated the community with prejudice. See Rideau v - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Those Acts had but a short life, and we never returned to them. We have, however, witn ; the spectrum [***104] is limited and wavelengths must be assigned to avoid stations ly in [*158] a limited way, viz., by preventing monopolistic practices and by promotin inst the grain of the First Amendment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The Senate Report which accompanied the bill that became the Radio Act of 1927, 44 S "If the channels of radio transmission were unlimited in number the importance of the r at terms and for what periods of time, together with the other questions connected with th erests affected. For these and other reasons your committee decided that all power to reg S. Rep. 772, 69th Cong., 1st Sess., 3. [***105] n8 Scarcity may soon be a constraint of the past, thus obviating the concerns expressed Smith, The Wired Nation 7 (1972); see Brandywine-Main Line Radio, Inc. v. FCC, 153 U. S. n9 Currently, press censorship covers most of the globe. In Brazil the present regime "The censors' rules, issued a few months ago and constantly amended, cover a vast field "General prohibitions include protests against censorship, any discussion of a successo he image of Brazil. "Others are campaigns to discredit the national housing program, the financial market o e state, agitation in union and student circles, and publicity for Communist personalities "The most controversial order, issued by the Minister of Justice last September, bans a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***106] The Court in National Broadcasting Co. v. United States, 319 U.S. 190, 226, said, "Unli ion, it is subject to governmental regulation." That uniqueness is due to engineering and technical problems. But the press in a reali now established are unique in the sense that it would be virtually impossible for a compe ilable only to a select few. Who at this time would have the folly to think he could comb rst Amendment terms. n10 But I do not think it gives us [*160] [**2115] carte blan bridging the freedom . . . of the press" to mean that Congress may, acting directly or thr - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Indeed, it can be argued that the existence of newspapers, and thus their access to ment, and, as my Brother STEWART recognizes, a form of subsidy. Under the Postal Reorganization Act, the new Postal Rate Commission is empowered to fix periodicals (127%) is "nothing less than a death sentence for an unpredictable number of ted that some 10,000 magazines and small newspapers will be forced out of existence. Id., ity of opinion and reporting the First Amendment is designed to promote and protect. As Se f newspapers and magazines. Regardless of the economic, political, or social policies whi st of distributing them through the postal system is higher than their readers are willing In addition to the benefits of reduced postage rates, newspapers have been afforded a l - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***108] Powerful arguments, summarized and appraised in T. Emerson, The System of Freedom of Ex The problem implicates our educational efforts which are bland and conformist and the pres s and culture in a world which, as Buckminster Fuller said, has been "communized" by the r What kind of First Amendment would best serve our needs as we approach the 21st century at Government [*161] shall keep its hands off the press. That principle has served us more conventional methods for disseminating news, are all included in the concept of "pre The issues presented in these cases are momentous ones. TV and radio broadcasters have ding their pages with advertisements; they publish, not discussions of critical issues con v. Sullivan, 376 U.S. 254. Commissioner Johnson of the FCC wrote in the present case a pow "Although the First Amendment would clearly ban governmental censorship of speech conte - applies rules that give one speaker, or viewpoint, less time (or none at all) to present First Amendment demands rules permitting as many to speak and be heard as possible. And [*162] But the prospect of putting Government in a position of control over publisher our Constitution and Bill of Rights was to take Government off the backs of people. Separ low Government any role of censorship over newspapers, magazines, books, art, music, TV, r tional amendment. The Commission has an important role to play in curbing monopolistic pr It is said, of course, that Government can control the broadcasters because their chan eople who speak there do not come under Government censorship. Lovell v. Griffin, 303 U.S. and radio broadcasters are a vital part of the press; and since the First Amendment allows Licenses are, of course, restricted in time and while, in my view, Congress has the pow at the First Amendment gives no preference to one school of thought over others. n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 Judge Bazelon, dissenting in Brandywine-Main Line Radio, Inc. v. FCC, 153 U. S. App "WXUR was no doubt devoted to a particular religious and political philosophy; but it was wpoint which was not being heard in the greater Philadelphia area. The record is clear th lities to spokesmen of conflicting viewpoints. "The Commission's strict rendering of fairness requirements, as developed in its decisi is beyond dispute that the public has lost access to information and ideas. This is not - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***112] The Court in today's decision by endorsing the Fairness Doctrine sanctions a federal sa have a written constitution containing prohibitions as absolute as those in the First Amen has broadcast "'obscene, indecent or profane language' in violation of" 18 U. S. C. @ 1464 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 If Eastern European experience since World War II is any criterion, the newspapers d "prime time" filled with tapes of official meetings, political speeches, and the tedious n13 FCC Order No. 73-331, 39 Fed. Reg. 8301 (Mar. 27, 1973). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***113] In April 1973, the FCC fined Sonderling Broadcasting Corp., which operates station WGLD .S. 413, and Ginzburg v. United States, 383 U.S. 463, as supplying the criteria for broad ication shall be fined not more than $ 10,000 or imprisoned not more than two years, or bo Commissioner Johnson dissented, saying that the FCC prefers "to sit as an omniscient pr am it casts "a pall over the entire broadcasting industry" for the reason that the license hes "all forms of [***114] broadcast expression." We ourselves have, of course, made great inroads on the First Amendment of which obscen is contrary to our constitutional mandate and makes the broadcast licensee an easy victim cal voice that emerges after every election. The affair with freedom of which we have bee III I said that it would come as a surprise to the public as well as to publishers and edit might not in view of the retrogressive steps we have witnessed. We have allowed ominous inroads to be made on the historic freedom of the newspapers. restraint on our press for the first time in our history. See New York Times Co. v. Unite In recent years the admonition of Mr. Justice Black that the First Amendment gave the p "The Government's power to censor the press was abolished so that the press would remai ed press can effectively expose deception in government. And paramount among the responsi nd foreign shot and shell." Ibid. [**2118] The right of the people to know has been greatly undermined by our decisions 665. [***116] [*166] The Boston Globe reports: n14 "In the last two years at least 20 Federal Grand Juries have been used to investigate r everage than, for example, the old House UnAmerican Activities Committee." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The People's Need to Know, an Editorial Series, Jan. 21-27, 1973, reprinted from Bo - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Many reporters have been put in jail, a powerful weapon against investigative reporting - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 Id., at 13. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In the same direction is the easy use of the stamp "secret" or "top secret" which the C ne with the other restraints on the press are provisions of the new proposed Rules of Evid "The government has a privilege to refuse to give evidence and to prevent any person fr le." Under the statute if Congress does not act, n16 this new regime of secrecy will be impo wsmen. It indeed pointedly omits any mention of the privilege of newsmen to protect their - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 By reason of an Act of Congress of Mar. 30, 1973, the Rules of Evidence -- and amen ept to the extent that Congress expressly approves. 87 Stat. 9. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***118] These growing restraints on newspapers have the same ominous message that the overtones The growing specter of governmental control and surveillance over all activities of peo pon against the opposition, whether to the left or to the right. Experience has shown that unrestrained power cannot be trusted to serve the public weal ke "no law" abridging freedom of speech and the press is clear; the orders and rulings of rities or help produce a Nation of people who walk submissively to the executive's notions - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 Alexander Bickel has spurned the "total agnosticism" that allows the First Amendmen olutes, Freedom at Issue 5 (May-June 1973). He attributes this view to Mr. Justice Holmes strust of the evanescent, narrow, factional views of those in power and the belief that no - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***119] [*168] Mills v. Alabama, 384 U.S. 214, involved a prosecution of a newspaper editor f r-council government. This Court, speaking through Mr. Justice Black, reversed the judgme "The press serves and was designed to serve as a powerful antidote to any abuses of power serve. Suppression of the right of the press to praise or criticize governmental agents and deliberately selected to improve our society and keep it free. The Alabama Corrupt Pr lt to conceive of a more obvious and flagrant abridgment [***120] of the constitutiona I would apply the same test to TV or radio. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 The monetary and other burdens imposed on the press by the right of a criticized pe t denies the Government the power to impose. The burdens certainly are as onerous as the a, 361 U.S. 147 (1959); (2) the requirement that a magazine publisher investigate his adve n handbills, Talley v. California, 362 U.S. 60 (1960); (4) the requirement that organizati Bates v. City of Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357 U.S. 449 (1958); itutional on the ground that it discouraged or chilled constitutionally protected rights o - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***121] [*169] What Walter Lippman wrote about President Coolidge's criticism of the press ha "'declared for peace, good-will, understanding moderation; disapproved of conquest, aggres on of life, property, respect for sovereignty and principle of international law. Mr. Coo power to determine in each concrete case exactly what is right, what is just, what is patr e him they are unpatriotic, and that when they support him they do so not because they thi '" J. Luskin, Lippman, Liberty, and the Press [***122] 60 (1972). [*170] The same political appetite for oversight of most segments of the press has ma DISSENTBY: BRENNAN DISSENT: MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting. These cases require us to consider whether radio and television broadcast licensees may ak out on controversial issues of public importance. In practical effect, the broadcaster ssion of controversial public issues to formats such as documentaries, the news, or panel the discussion of controversial issues -- is consistent with the "public interest" require e the First Amendment. It is noteworthy that, in reaching this result, the Court does not . On the contrary, only THE CHIEF JUSTICE, and my Brothers STEWART and REHNQUIST express at the broadcaster policy here under [**2121] attack does not violate the "substance" ugh THE CHIEF JUSTICE, and my Brother REHNQUIST purport to "decide" that question, their d - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 See Business Executives Move for Vietnam Peace, 25 F. C. C. 2d 242 (1970); Democrati n2 I do not specifically address the "statutory" question in this case because, in prac There is one aspect of the Court's "statutory" discussion, however, that merits at least casters shall not be deemed "common carriers." In my view, this reliance is misplaced. Ev e "common carriers," such as transportation companies, would not suit the particular probl [public issues]." 67 Cong. Rec. 12504 (Sen. Dill) (emphasis added); see also ibid. (Sen. illing purchasers; it does not bear upon the question whether they may be required to sell 5 n. 75 (1947). Indeed, the Commission itself has rejected the Court's interpretation of oversial public issues . . . is inconsistent with the concept of public interest establish - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***125] [*172] In my view, the principle at stake here is one of fundamental importance, for f broadcasters, the listening and viewing public, and individuals seeking to express their onal commitment to the principle that debate on public issues should be uninhibited, robus oadcaster policy is violative of the First Amendment. I The command of the First Amendment that "Congress shall make no law . . . abridging the t that is formally 'private' may become so entwined with governmental policies or so impre . 296, 299 (1966). Thus, the reach of the First Amendment depends not upon any formalistic ar "private" enterprise. "Only by sifting facts and weighing circumstances can the nonob Moose Lodge No. 107 v. [*173] Irvis, 407 U.S. 163, 172 (1972). And because of the inhe es whether particular conduct must be deemed private or governmental. Reitman v. Mulkey, This [***127] does not mean, of course, that our prior experience in this area offe ch are directly applicable to the operations of the broadcast industry. n3 As the Court of -- a relationship which puts that industry in a class with few others." 146 U. S. App. D. , the pervasive federal regulation of broadcast programming, and the Commission's specific atives. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 See generally Business Executives Move for Vietnam Peace, 25 F. C. C. 2d, at 253-264 ent of the challenged broadcaster policy. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***128] At the outset, it should be noted that both radio and television broadcasting utilize a is valuable resource for terminable three-year periods, "ownership" and ultimate control r "It is the purpose of this [Act] . . . to maintain the control of the United States ove eriods of time, under licenses granted by Federal authority, and no such license shall be - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 For a discussion of the attributes of the electromagnetic spectrum, see generally W. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***129] Such public "ownership" of an essential element in the operations of a private enterpri the fact of "public ownership" in holding the proscriptions of the Fourteenth Amendment ap the "public ownership" of the building, the State "has elected to place its power, proper has so far insinuated itself into a position of interdependence with [the restaurant] tha y of Memphis, 369 U.S. 350 (1962); Kissinger v. New York City Transit Authority, 274 F.Sup - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 It is true, of course, that unlike the State in Burton, the Federal Government here Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 174-175 (1972). Nevertheless, the absence of s Kalven, Broadcasting, Public Policy and the First Amendment, 10 J. Law & Econ. 15, 31 (19 e governmental scheme. Burton v. Wilmington Parking Authority, supra, at 723. See also 47 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***131] A second indicium of "governmental involvement" derives from the direct dependence of b gulation alone makes "radio communication possible by . . . limiting the number of license t is equally clear that "existing broadcasters have often attained their present position, tages enjoyed by broadcast licensees "are the fruit of a preferred position conferred by t use of a limited and valuable part of the public domain; when he accepts that franchise it 003 (1966). And, along these same lines, we have consistently held that "when authority d ment itself." American Communications Assn. v. Douds, 339 U.S. 382, 401 (1950); see, e. g. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 For a discussion of the Fairness Doctrine and its relevance to this case, see text a n7 Indeed, the Communications Act of 1934 makes it a criminal offense to operate a broa ition. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A further indicium of "governmental involvement" [***133] in the promulgation and e rt has never held" that actions of an otherwise private entity necessarily constitute gove , not with some minimal degree of regulation, but, rather, with an elaborate statutory sch ng, and pervasive. n9 Thus, as the Court of Appeals [**2124] noted, "almost no other p - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Thus, the Communications Act of 1934 authorizes the Federal Communications Commissio late chain ownership, @ 303 (i); require the keeping of detailed records, @ 303 (j); estab ormation, @ 303 (p); make rules to effect regulation of radio and television, @ 303 (r); r on to be supplied by applicants for licenses, @ 308 (b); regulate the transfer of licenses itting apparatus, @ 318; and prohibit the use of offensive language, 18 U. S. C. @ 1464. n9 Pursuant to statutory authority, see n. 8, supra, the Commission has promulgated myr e ownership of licenses by a single individual, @ 73.35; station location and program orig cal editorial fairness requirements, @ 73.123; relationship of licensees to networks, @@ 7 d television, @ 73.601 et seq. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Even mo s, for example, an obvious nexus between the Commission's Fairness Doctrine and the absolu tance. Indeed, in defense of this policy, the broadcaster-petitioners argue vigorously th her Communications Act policies are [*178] inextricably linked to the challenged ban. e operation of that doctrine would be jeopardized." Ante, at 124. Similarly, the Court mai public issues. See ante, at 130-131. n10 Although I do not in any sense agree with the su here under review. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 In addition, the Court contends that, because of the Fairness Doctrine, the challen - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***136] Moreover, the Commission's involvement in the challenged policy is not limited solely t has specifically considered and specifically authorized the flat ban. See Business Execu Federal Government -- has unequivocally given its imprimatur to the absolute ban on editor vernmental action." Thus, in McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151 (1914), for example, the ffering equal facilities to blacks. Although dismissal of the complaint on procedural gro ier refusing equal service to blacks would be "acting in the matter under the authority of te statute as an authorization to discriminate and as sufficient state action to violate t agencies, approving, authorizing, encouraging, or otherwise supporting conduct which, if subsequently occur." Adickes v. Kress & Co., 398 U.S. 144, 202 (1970) (opinion of BRENNAN, (1966); Robinson v. Florida, 378 U.S. 153 (1964); Lombard v. Louisiana, 373 U.S. 267 (196 Finally, and perhaps most important, in a case virtually identical to those now before District of Columbia, must be subjected to the constraints of the First Amendment. Public ged action of the bus company. Thus, after noting that the bus company "operates its serv ined that our finding of "governmental action" was predicated specifically "upon the fact that that agency, pursuant to protests against the [challenged policy], ord not impaired thereby." Id., at 462. See Moose Lodge No. 107 v. Irvis, supra, at 175-176, n. 3. Although THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, st erate "under the regulatory supervision of . . . an agency authorized by Congress." 343 U. ground that the "public interest, convenience, and necessity" were not "impaired" by that of a bus company, but, rather, the primary activity of the regulated entities -- communic Thus, given the confluence of these various indicia of "governmental action" -- includi ogramming, and the specific governmental approval of the challenged policy -- I can only c ir time to groups or individuals wishing to speak [**2126] out on controversial issues n11 Moreover, the appropriateness of a particular forum, even if privately owned, for e v. Logan Valley Plaza, 391 U.S. 308 (1968); Marsh v. Alabama, 326 U.S. 501 (1946). Here, our most important educator of an informed people." 146 U. S. App. D. C. 181, 192, 450 F. n12 In his concurring opinion, my Brother STEWART suggests that a finding of government omplete misunderstanding of the nature of the governmental involvement in these cases. He oved the challenged broadcaster policy. Thus, the commands of the First Amendment come int challenged policy as to make the Government itself responsible for its effects. Similarl dment rights." Ibid. The actions of a purely private individual are, of course, not subje idual must exercise his own rights with due regard for the First Amendment rights of other Indeed, it is this misunderstanding of the significance of governmental involvement that he Act and First Amendment "values." I might also note that, contrary to the suggestion of my Brother STEWART, a finding of that the Government is involved in the promulgation and enforcement of the challenged broa paper industry is not extensively regulated and, indeed, in light of the differences betwe d be impossible, it would likewise be impossible for the Government to approve an exclusio - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***142] [*182] II Radio and television have long been recognized as forms of communication "affected by a CC, 395 U.S., at 386. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (19 tion of the First Amendment in this context is not limited solely to broadcasters. On the frequencies available and the potentially pervasive impact of the electronic media, "the e First Amendment." Red Lion Broadcasting Co. v. FCC, supra, at 390. Over 50 years ago, Mr. Justice [***143] Holmes sounded what has since become a domi "the best test of truth is the power of the thought to get itself accepted in the competi (1927) (Brandeis, J., concurring); Gitlow v. New York, 268 U.S. 652, 672-673 (1925) (Holme ited, robust, and wideopen," n13 and the Amendment "rests on the assumption that the wides 26 U.S. 1, 20 (1945). For "it is only through free debate and free exchange of ideas that ll v. Alabama, 310 U.S. 88, 102 (1940); Palko v. Connecticut, 302 U.S. 319, 326-327 (1937) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); see also Pickering v. Boa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*184] With considerations such as these in mind, we have specifically declared that, , moral, and other ideas and experiences . . . ." Red Lion Broadcasting Co. v. FCC, supra, il, rather than to countenance monopolization of that market, whether it be by the Governm - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 This was not new doctrine, for we have long recognized in a variety of contexts tha a, 394 U.S. 557, 564 (1969); Time, Inc. v. Hill, 385 U.S. 374, 388 (1967); Griswold v. Con - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus, we have explicitly recognized that, in light of the unique nature of the electron -- on controversial issues of public importance. And, as we have seen, it has traditiona of communication readily available to all persons wishing to express their views. Althoug ion's Fairness Doctrine, in and of itself, is sufficient to satisfy the First Amendment in [*185] The Fairness Doctrine originated early in the history of broadcast regulation . n16 In essence, the doctrine imposes a twofold duty upon broadcast licensees: (1) covera a, at 377. In fulfilling [***147] their obligations under the Fairness Doctrine, [*186 faith," n19 "to determine what issues should be covered, how much time should be allocated to use the airwaves to express their own views on controversial issues of public importanc cussions, interviews, and documentaries. As a result, broadcasters retain almost exclusiv framework, I can only conclude that the Fairness Doctrine, standing alone, is insufficient nally entitled. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The . 557, 47 U. S. C. @ 315 (a). As amended, @ 315 (a) recognizes the obligation of broadcas n16 The Fairness Doctrine was first fully set forth in Report in the Matter of Editoria Public Importance, 29 Fed. Reg. 10415 (1964). The statutory authority of the Commission to es," to promulgate "such rules and regulations and prescribe such restrictions and conditi n17 See John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see also Metropolitan Broadcast n18 If the broadcaster presents one side of a question, and does not wish to present th p., 40 F. C. C. 620 (1964). If the broadcaster rejects a volunteer spokesman as "inappropr nsorship is unavailable. See Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963). n19 Applicability of the Fairness Doctrine in the Handling of Controversial Issues of P n20 Notice of Inquiry: The Handling of Public Issues Under the Fairness Doctrine and th ial Issues of Public Importance, supra, n. 16, at 10416; Report in the Matter of Editorial n21 Thus, the Fairness Doctrine must be sharply distinguished from the "equal time" req 47 U. S. C. @ 315. See also Nicholas Zapple, 23 F. C. C. 2d 707 (1970) (extension of "equa e confused with the Commission's "personal attack" and "political editorializing" rules wh oversial issue of public importance, an attack is made upon the honesty, character, integr The "political editorializing" rule provides that when a licensee endorses a candidate for "equal time," "personal attack," and "political editorializing" rules grant a particular g - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***151] As a practical matter, the Court's reliance on the Fairness Doctrine as an "adequate" a on of information from diverse and antagonistic sources." n22 As Professor Jaffe has noted ed, in light of the strong interest of broadcasters in maximizing their audience, and ther spectrum of viewpoints. Stated simply, angry customers are not good customers and, in th result, even under the Fairness Doctrine, broadcasters generally tend to permit only esta - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 Associated Press v. United States, 326 U.S. 1, 20 (1945). n23 Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and n24 See generally D. Lacy, Freedom and Communications 69 (1961); Mallamud, The Broadcas to Persuade: Access to Radio and Television, 19 U. C. L. A. L. Rev. 723, 727 (1972); Malon 6 (1972); Johnson & Westen, A Twentieth Century Soapbox: The Right to Purchase Radio and T edia, 57 Va. L. Rev. 636 (1971); Note, A Fair Break for Controversial Speakers: Limitation ry System, 17 U. C. L. A. L. Rev. 868, 870-875 (1970); Comment, Freedom of Speech and the rds Creation of a Right of Access to the Mass Media, 54 Cornell L. Rev. 294, 296 (1969). Although admitting that the Fairness Doctrine "has not always brought to the public per is fairness obligations does so "at the risk of losing his license." Ante, at 130-131. Th e. Indeed, this is not surprising, for the Commission has acted with great reluctance in e also Cox & Johnson, Broadcasting in America and the FCC's License Renewal Process: An Ok - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***153] Moreover, the Court's reliance on the Fairness Doctrine as the sole means of [**2130] ose ideas without the interposition of journalistic middlemen. Under the Fairness Doctrin absolute control in the hands of a few Government licensees is inimical to the First Amend r own hands. Our legal system reflects a belief that truth is best illuminated by a collision of gen ournalistic discretion" of broadcasters, who serve in theory as surrogate spokesmen for al . Indeed, we emphasized this fact in Red Lion: n25 "Nor is it enough that he should hear the arguments of adversaries from his own teachers, t with his own mind. He must be able to hear them from persons who actually believe them; Thus, if the public is to be honestly and forthrightly apprised of opposing views on contr t concern them. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 Red Lion Broadcasting Co. v. FCC, supra, at 392 n. 18, quoting J. Mill, On Liberty - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Moreover, to the extent that broadcasters actually permit citizens [***155] to appear al's expression of his views is as dependent on the style and format of presentation as it scussions may tend to minimize, rather than maximize the effectiveness of speech. Under a Nor are these cases concerned solely with the adequacy of coverage of those views and i and opinions. Under the Fairness Doctrine, the broadcaster is required to present only "r f those "views and voices" that are already established, [***156] while failing to pro - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 Democratic National Committee, 25 F. C. C. 2d, at 222 (emphasis added). n27 Indeed, the failure to provide adequate means for groups and individuals to bring n it-ins and demonstrations testify to . . . the inability to secure access to the conventio long enough to compel the public to ponder his message." Barron, 80 Harv. L. Rev., at 164 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*191] [**2131] Finally, it should be noted that [***157] the Fairness Doctri roadcaster-petitioners in this case illustrate the type of "journalistic discretion" licen de those issues or opinions that are "insignificant" n29 or "trivial." n30 Similarly, NBC ropriate." n32 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 Brief for American Broadcasting Companies, Inc. 52. n29 Brief for Columbia Broadcasting System, Inc. 34. n30 Id., at 40. n31 Brief for National Broadcasting Company, Inc. 10. n32 Brief for Post-Newsweek Stations, Capital Area, Inc. 31. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The genius of the First Amendment, [***158] however, is that it has always defined ge of the importance of a particular viewpoint or issue is the individual or group holding trary to the underlying purposes of the First Amendment, n33 for that Amendment "presuppos lated context, we have explicitly recognized that editorial advertisements constitute "an itorial advertising can serve only "to shackle the First Amendment in its attempt to secur - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n33 Tinker v. Des Moines Independent School District, 393 U.S. 503, 512 (1969). n34 United States v. Associated Press, 52 F.Supp. 362, 372 (SDNY 1943), aff'd, 326 U.S. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Fairness Doctrine's requirement of full and fair coverage of controversial issues i eed for a further, complementary airing of controversial views through the limited availab general discussion of public matters [that] seems absolutely essential to prepare the peo III Moreover, a proper balancing of the competing First Amendment interests at stake in thi ups and individuals [**2132] in effective self-expression. See, e. g., T. Emerson, To is the essence of self-government," Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), and attempt to persuade others to their points of view. See, e. g., Thomas v. Collins, 323 U. is imperative that we take special care to preserve the vital First Amendment interest in an ever the need to express their own views directly to the public, rather than through a In light of these considerations, the Court would concede, I assume, that our citizens ontrary, the right to speak can flourish only if it is allowed to operate in an effective communication, the right to speak would ring hollow indeed. And, in recognition of these n individual to utilize an appropriate and effective medium for the expression of his view d Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968); Brown v. Louisiana, 383 U.S. 413 (1943); Schneider v. State, 308 U.S. 147 (1939); Hague v. CIO, 307 U.S. 496 (1939). Here, of course, there can be no doubt that the broadcast frequencies allotted to the v e [**2133] streets, parks, public [***163] libraries, and other "forums" that we ha ideas -- whether political, commercial, musical, or otherwise -- is the exclusive purpose . Cf. Lloyd Corp., Ltd. v. Tanner, supra, at 563; Amalgamated Food Employees Union v. Log - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 The Court does make the rather novel suggestion, however, that editorial advertisin decisions in Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952), and Kovacs v. Cooper rights of passengers who did not wish to listen to those programs. And in Kovacs, althou ot with the content of speech, but, rather, with the offensiveness of the sounds themselve troversial programming under the Fairness Doctrine. Thus, the Court draws its line solely speech may not be prohibited because of a "mere desire to avoid the discomfort and unpleas 08 U.S. 104, 117 (1972). The suggestion that constitutionally protected speech may be bann - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***164] Moreover, it is equally clear that, with the assistance of the Federal Government, the he public's prime source of information," n37 and we have ourselves recognized that broadc ion Broadcasting Co. v. FCC, 395 U.S., at 386 n. 15. Thus, although "full and free discuss ox orator and the leafleteer virtually obsolete. And, in light of the current dominance o n the concept of "full and free discussion" practically meaningless. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n36 Indeed, approximately 95% of American homes contain at least one television set, an of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., 7 (1970) lly A. Krock, The Consent of the Governed 66 (1971); H. Mendelsohn & I. Crespi, Polls, Tel n37 H. R. Rep. No. 91-257, p. 6 (1969). According to one study, 67% of Americans prefe of the Commission's Rules, 22 F. C. C. 2d 339, 344 (1970) (59% of Americans depend on tel - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Regrettably, it is precisely such a policy that the Court upholds today. And, since eff st in receiving suitable exposure to "uninhibited, robust, and wide-open" debate on contro rriding interest in exercising absolute control over [**2134] "his" frequency. n38 Suc olly disregards the competing First Amendment rights of all "non-broadcaster" citizens, ig t regulation in this Nation. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38 It should be noted that, although the Fairness Doctrine is at least arguably releva the individual's interest in obtaining access to the airwaves for the purpose of effectiv sfied by the expression of "similar" views by a surrogate spokesman. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Prior to 1927, it must be remembered, it was clearly recognized that the broadcast spec therefore had the same right of access to radio facilities as they had, and still have, to y frequency was occupied by at least one station, and many were occupied by several. "The came "apparent that broadcast frequencies constituted a scarce resource whose use could be the broadcast spectrum under federal regulation and sought to reconcile competing uses of broadcasting [***168] was necessarily limited, the [*198] Government was compelle o. v. United States, supra, at 210-214. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n39 Indeed, pre-1927 regulation of radio gave no discretion to the Federal Government t e generally National Broadcasting Co. v. United States, 319 U.S. 190, 210-214 (1943). n40 67 Cong. Rec. 5479 (Rep. White). n41 These include, of course, not only public broadcasting, but also "amateur operation - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Although the overriding need to avoid overcrowding of the airwaves clearly justifies th e to posit an unabridgeable First Amendment right to broadcast comparable to the right of ntirely. Under the existing system, broadcast licensees are granted a preferred status wi ion Broadcasting Co. v. FCC, supra, at 400. And, in return for that "preferred status," li ernment censorship in the expression of his own views n44 and, indeed, has a significant i uff [***170] out the free speech of others." Id., at 387 (emphasis added). Indeed, a "as far as the First Amendment is concerned those who are licensed stand no better than th n of his fellow citizens." Id., at 389. Because I believe this view is as sound today as when voiced only four years ago, I can on m the most effective "marketplace of ideas" ever devised. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n42 Although this licensing scheme necessarily restricts the First Amendment rights of en recognized that when "conflicting demands on the same [forum] . . . compel the [Governm ice Dept. of Chicago v. Mosley, 408 U.S. 92, 98 (1972); cf. Cox v. Louisiana, 379 U.S. 536 ndeed "if the First Amendment, aimed at protecting and furthering communications, prevente FCC, supra, at 389. [***171] n43 Id., at 388. n44 See, e. g., 47 U. S. C. @ 326. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This is not to say, of course, that broadcasters have no First Amendment interest in ex heavily in any legitimate effort to balance the competing First Amendment interests involv dcasters regularly relinquish to others without the retention of significant editorial con l be given an opportunity to speak in a forum that has already been opened to the public. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n45 Thus, as the Court of Appeals recognized, "in normal programming time, closely cont - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***172] Viewed in this context, the absolute ban on editorial advertising seems particularly of e, they make such air time readily available to those "commercial" advertisers who seek to aste, or deodorant has direct, personal, and instantaneous access to the electronic media. ace, pollution, or the suffering of the poor is denied this right to speak. Instead, he is It has long been recognized, however, that although access to public forums may be subj Dept. of Chicago v. Mosley, 408 U.S., at 96 (emphasis added); see, e. g., Shuttlesworth v d, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948). Here, of course, the differ iven "commercial" speech under the existing scheme clearly reverses traditional First Amen troversial issues of public importance. See, e. g., Breard v. Alexandria, 341 U.S. 622 (1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n46 See, e. g., Police Dept. of Chicago v. Mosley, supra, at 98; Grayned v. City of Roc ate, supra, at 160. [***174] n47 Contrary to the Court's assertion, the existence of the Fairness Doctrine cannot in f effective self-expression. See also n. 38, supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The First Amendment values of individual self-fulfillment through expression and indivi be permitted at least some opportunity to express their views on public issues over the e sing time that is already made available to some members of the public, I simply cannot co IV Finally, the Court raises the specter of administrative apocalypse as justification for olute right of access to the airwaves. In reality, however, the issue in these cases is n Court's misconception of the issue seriously distorts its evaluation of the administrative [**2137] Specifically, the Court hypothesizes three potential sources of difficulty: to editorial advertising might adversely affect the operation of that doctrine; and (3) r indeed, important concerns. But, at the present time, they are concerns -- not realities assumption that these hypothetical problems are both inevitable and insurmountable indicat ce is, of course, strikingly inconsistent with the general propositions underlying all oth Moreover, it is noteworthy that, 28 years ago, the Commission itself declared that "the operation of any station under the extreme principles that no time shall be sold for m balance may not permit the sale or donation of time to all who may seek it for such purp be accommodated. However, competent management should be able to meet such problems in t e issue by a strict rule against the sale of time for any programs of the type mentioned." I can see no reason why the Commission and licensees should be deemed any less competent t inly no dearth of proposed solutions to the potential difficulties feared by the Court. S ant Dragon: Will the First Amendment Right of Access End the Suppressing of Controversial 74 (1971); Note, 85 Harv. L. Rev. 689, 693-699 (1972). With these considerations in mind, the Court [***178] of Appeals confined itself to vern the availability of editorial advertising. In the context of these cases, this was s ncing [First Amendment values], there will be time enough to reconsider the constitutional - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n48 The Court of Appeals did, however, suggest certain possible contours of implementat "'reasonable regulation' of the placement of advertisements is altogether proper." 146 U. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***179] For the present, however, and until such time, if ever, as these assertedly "overriding war message or a political party message in the accustomed place of a soap or beer commerc other outlet for speech on public issues. All that we may lose is some of our apathy." n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n49 Id., at 204-205, 450 F.2d, at 665-666. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -