FREE PRESS AND FREE SPEECH IN CONFLICT

1. NO RIGHT OF ACCESS TO PRINT

Miami Herald Publishing Co. v. Tornillo (1974)

[A speaker, who is also a candidate for the FL H.R., wants to exercise his freedom of speech to respond to criticism of him published by the Miami Herald. The newspaper refuses, even though there is a state law requiring a right to respond.]

What is at issue is the constitutionality of the FL statute upholding freedom of speech in the form of a right to reply, a "right of access" to print media.

pp. 73-74

2. LIMITED RIGHT OF ACCESS TO BROADCASTING--SCARCITY

United States v. Zenith Radio Corp. (7th Cir. 1926)

Radio Act of 1927

Created the FRC to create and enforce standards for the broadcaster's privilege of using the public airwaves.

Communication Act of 1934

Created the FCC to enforce the standard of "public interest, convenience or necessity."

FCC functions:

Licensing (due to "scarcity").

Legislating. The FCC "promulgates" rules which have "the effect of law."

Adjudicating. The FCC acts as an administrative law court and hears complaints.

Red Lion Broadcasting Company v. FCC (1969)

[Broadcasters challenged the authority of the FCC to enforce the "personal attack rule" and the "political editorializing rule."]

PERSONAL ATTACK RULE: ". . . when, during the presentation of views on a controversial issue of public importance, an attack is made on the honesty, character or integrity . . . of an identified person or group," the broadcaster must:

*give notice to the person or group attacked

*provide a script of the attack or a summary

*give an opportunity to respond (free of charge)

POLITICAL EDITORIALIZING RULE: if a broadcaster endorses a candidate, the broadcaster must:

*give notice to all opposing candidates

*give reply time (free of charge),

and if a broadcaster attacks a candidate, the broadcaster must:

*give notice to that candidate

*give reply time (free of charge)

pp. 78-79: The 1A right is primarily the right of the public and not the licensee.

 

THE FAIRNESS DOCTRINE

The fairness doctrine was created by the FCC in its rulings and reports. It was codified by Congress in the 1959 Amendments to section 315 of the Communication Act of 1934. The doctrine requires broadcasters:

" . . . to air issues which are so critical or of such great public importance that it would be unreasonable for a licensee to ignore them completely" and,

" . . . to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues."

A "critical issue of public importance" is determined by 4 factors.

The issue is clearly identifiable and specific.

The issue is receiving media attention.

Government and community leaders are taking sides.

Its resolution will have an impact on the community/nation.

"Balance" is determined by 3 factors (but the crucial question will be, "Has the public been left un-informed).

The total amount of time devoted to each side.

The frequency with which the positions have been aired.

The size of the audience.

 

The 1985 Fairness Report

In this Report the FCC argued that the fairness doctrine was no longer justified because with the cable and internet explosion, there is no scarcity.

In 1987 Congress passed a fairness statute, which was vetoed by President Reagan. Lack of enforcement of the doctrine has resulted in the airing of some highly opinionated and partisan broadcasting, i.e. radio talk shows.

 

WHAT IS LEFT?

See p. 81

But,

The Fairness Doctrine may be revisited after the vote on the Immigration Bill (2007)

 

3. THERE IS NO RIGHT ON THE PART OF AN INDIVIDUAL OR GROUP TO BROADCAST AIR-TIME TO EXPRESS OPINIONS OR POINTS OF VIEW ON ISSUES. except: legally qualified candidates for federal office.

Columbia Broadcasting System v. Democratic National Committee (1973)--handout