In my column today, I note that the Supreme Court upheld content-based regulation of broadcasting in FCC v. Pacifica on the grounds that the medium is "uniquely pervasive" and "uniquely accessible to children," premises that have been invalidated by technological developments in the three decades since the case was decided. In defending the ban on "broadcast indecency," the Obama administration offers a different rationale: Speech restrictions are part of the deal when the government allows a broadcaster to use "the public airwaves." Here is how Solicitor General Donald Verrilli put it during oral argument yesterday:
Respondents in this case have for years benefited enormously from their free and exclusive use of public spectrum. They argue, however, that neither Congress nor the commission may as a condition of their licenses require that they refrain from broadcasting indecent material when children are most likely to be in the audience.
Justice Antonin Scalia seemed receptive to this way of looking at the FCC's censorship, saying:
These are public airwaves. The government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth.
The "public airwaves" argument, which Fox and the other TV networks challenging the FCC's regulations call "a hail-Mary attempt to salvage [the FCC's] indecency-enforcement regime," was not cited in Pacifica. But it does play a conspicuous role in Red Lion Broadcasting v. FCC, the 1969 decision that upheld the "fairness doctrine," a policy of requiring broadcasters to provide balanced coverage of public issues (which the FCC abandoned in 1987 because of concerns that it had a chilling effect on political speech). "Because of the scarcity of radio frequencies," the Court said, "the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium."
As Fox et al. note, "the scarcity doctrine has never been the basis for indecency enforcement." Furthermore, the doctrine "has been subjected to withering criticism" during the last few decades. All economic resources are scarce, and all forms of communication use economic resources, so it is hard to see how scarcity can justify restrictions on one medium of speech that would be unconstitutional if applied to any other. The proliferation of TV and radio outlets since 1969 further undermines the scarcity rationale. "There are more than twice as many over-the-air broadcast stations than there were 40 years ago," the networks note, and "the number of additional media outlets has exploded during that time with the development of cable and satellite television and the Internet."
Justice Anthony Kennedy put his finger on a deeper problem with this argument yesterday when he called the government's reasoning "circular": We license broadcasters so we can regulate them, and we can regulate them because we license them. Instead of treating broadcasting rights as transferable property, the government chooses to give broadcasters revocable licenses and then cites that decision as grounds for further meddling. By similar logic, the government could nationalize the paper industry or the silicon chip industry, then use the resulting power to dictate the content of newspapers or websites.
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