Friday, February 20, 2015

The Public Interest, Convenience or Necessity

There have been a lot of court rulings regarding applications of the First Amendment when it comes to broadcasting. The First amendment is action-packed. It provides freedom of speech, freedom of the press, freedom to protest, and the freedom of and from religion. Rarely do 45 words on a legal document accomplish so much good.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Of course Congress has certainly has made laws abridging all of the above. Setting aside all of the times government agencies have abridges the above outside of the law, what they've done with the law is really core to the state of modern media. I can think of many court cases which were significant, but three come to mind that were pivotal. All of them were ruled on half a century ago. See below:
  1. Farmer's Education and Cooperative Union Vs. WDAY (1959)
  2. National Broadcasting Co Vs. The United States (1943) 
  3. The United States. Vs. Paramount Pictures (1948)
 So let's tackle these in chronological order. In 1943 NBC sued the United States Government.It was ballsy but they felt backed into a corner. In 1941, the FCC established the Chain Broadcasting Regulations. These created a separate set of regulations for network radio stations. The were dismissed by a district court in the State of New York and appealed. The Supreme Court then affirmed the dismissal. NBC got the face-palm. Worse than that, in the ruling the Supreme court affirmed that the FCC governed not only the technical aspects of broadcasting, but the content as well. they wrote:
"Unlike other media of expression, radio inherently is not available to all. That is its unique characteristic; and that is why, unlike other modes of expression, it is subject to government regulation. Because it cannot be used by all, some who wish to use it must be denied... The standard provided for the licensing of stations by the Communications act of 1934 was the "public interest, convenience, or necessity."

In 1948 the Supreme Court made this anti-trust ruling and basically decided that Hollywood studios couldn't also own the theaters. It was a ruling against "vertical integration" but also against oligopoly in favor of anti-trust laws. But the ruling also included a very important side reference. Justice William O. Douglas wrote  "...moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." This was the first time (I think) that made clear that radio, print and film were all collectively "media" and thus the press and subject to protection under the first amendment. So here was some good to go along with the bad.  In 1954 in Superior Films Vs. Department of Education Justice Douglas wrote "...the First amendment draws no distinction between between various methods of communicating ideas."

This was further reaffirmed in Farmer's Education and Cooperative Union Vs. WDAY in 1959. "...expressly applying this country's tradition of free expression to the field of radio broadcasting, Congress has from the first emphatically forbidden the Commission to exercise any power of censorship over radio communication." But what they ruled in this case was that if a political candidate defames another on a radio broadcast, the radio or TV station cannot be held liable for libel. This was pretty important in terms of protecting the free speech of broadcasters. In a speech a U.S. Senate candidate Arthur Townley accused the Farmers Union of being communists. They sued both WDAY and Townley for libel. WDAY found protection under the 1934 Communications act, Townley didn't. More here.