About Those "Public" Airwaves

“Progressives” who yearn to bring back the Fairness Doctrine insist that the First Amendment does not apply to radio or television in the same way that it applies to newspapers and magazines.

The Supreme Court has made it clear that any attempt to impose a fairness doctrine or a right-of-reply to the press would be patently unconstitutional, but the left argues that the government has the power to do precisely that for broadcast.

But is there really a bright line between the protected speech of the press, cable, and satellite on the one hand and speech that is broadcast through the air?

Is there something about broadcast that makes it uniquely subject to government censorship and control? Is radio uniquely exempted from constitutional protections extended to virtually every other form of expression?

Supporters of the Fairness Doctrine argued then, and now, that broadcast speech is uniquely subject to government regulation because it is carried over the “publicly owned airwaves.” According to this argument, the scarcity of spots on radio and television spectrum justified government regulation, exempted broadcast speech from the First Amendment protections enjoyed by newspapers, the internet, or disseminated on cable, or via satellite.

For “progressive” advocates of the Fairness Doctrine, broadcast stands alone.

  But should it?

  The First Amendment was written at a time when ideas could be expressed and disseminated in only two ways: through speech or through the press. The first amendment absolutely bars Congress from limiting either sort of expression. But progressives, who are usually enamored of the idea of a “living constitution,” ironically become the strictest of strict constructionists when they argue that because broadcast is not specifically mentioned, the government has the power to gag speech transmitted through the airwaves.

Can anyone seriously doubt that if radio had existed in colonial times, the Founders would not have extended the ban on government speech suppression to broadcast as well? By the constrained logic of the left that excluded broadcasting from constitutional protection, there is no constitutional authorization for the federal government to create an air force, since there were no air planes in 1787, and no such force is explicitly mentioned in the constitution.

But does the fact that broadcaster use “public owned airwaves” justify government regulation of the content of their speech?

Indeed, the argument that the airwaves are “public,” undermines itself. Far from granting the government greater powers for regulation, the fact that airwaves are public ought to give such speech even greater protection. Private individuals or entities can limit speech, but not the government: speech in a private mall or office can be regulated; but speech in the public square enjoys special protections, precisely because it is public, where the powers of the censor are the most tightly constrained.

For example, a private property owner can ban an anti-war march on his property, but a city government cannot ban outbreaks of dissent in public places, except under extraordinary circumstances.

A private college can limit speech; a public university has far less authority, precisely because it is public. In the same vein: civil rights demonstrations on public streets cannot be compelled to also provide an equal number of signs, speakers, or chants to opponents or vice versa.

It is precisely because the speech is in a public venue that it is most protected, not vice versa, as Fairness Doctrine advocates would have it.

It gets worse.

The argument that broadcast speech can be regulated because it is carried on “public airwaves,” could also be applied to newspapers that are, after all, delivered using publicly-owned roads; cable stations are transmitted over government-sanctioned cable lines; satellites transmit through the (publicly owned?) atmosphere; and magazines and other materials are sent through the U.S. Mail. Are they also subject to government regulation because of their mode of dissemination?

Should activists who use the mails to propagate their causes be compelled to send an equal number of letters advocating the other side? And what of cell-phone users, whose conversations presumably also take place over “public airwaves”?

(An expanded version of this article will appear in the next edition of Wisconsin Interest.)