holding that broadcast licensees are not required to accept all paid political advertisements, because such forced access would “tend to transform broadcasters into common carriers and would intrude unnecessarily upon the editorial discretion of broadcasters.”
How later courts described this case
- holding that broadcast licensees are not required to accept all paid political advertisements, because such forced access would “tend to transform broadcasters into common carriers and would intrude unnecessarily upon the editorial discretion of broadcasters.”
- noting that “over the course of the past half century ... Congress and [the FCC] have established a delicately balanced system of regulation intended to serve the interests of all concerned. The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence”
- noting that the Senate decided in passing the Communications Act “to eliminate the common carrier obligation” for broadcasters because “it seemed unwise to put the broadcaster under the hampering control of being a common carrier and compelled to accept anything and everything that was offered him so long as the price was paid” (quoting 67 Cong. Rec. 12,502 (1926))
- setting forth legislative history in which Congress recognized that requiring a broadcast station to provide nondiscriminatory access to its facilities by political candidates would render it a common carrier
Written by the judges who cited it.
The opinion
Mr. Justice Douglas,
concurring in the judgment.
While I join the Court in reversing the judgment below, I do so for quite different reasons.
My conclusion is that TV and radio stand in the same protected position under the First Amendment as do newspapers and magazines. The philosophy of the First Amendment requires that result, for the fear that Madison and Jefferson had of government intrusion is perhaps even more relevant to TV and radio than it is to newspapers and other like publications. That fear was founded not only on the spectre of a lawless government but of government under the control of a faction that desired to foist its views of the common good on the people. In popular terms that view has been expressed as follows:
“The ground rules of our democracy, as it has grown, require a free press, not necessarily a responsible or a temperate one. There aren’t any halfway stages. As Aristophanes saw, democracy means that power is generally conferred on second-raters by third-raters, whereupon everyone else, from first-raters to fourth-raters, moves with great glee to try to dislodge them. It’s messy but most politicians under *149 stand that it can’t very well be otherwise and still be a democracy.” Stewart, reviewing Epstein, News From Nowhere: Television and the News (1972), Book World, Washington Post, March 25, 1973, pp. 4-5.
I
Public broadcasting, of course, raises quite different problems from those tendered by the TV outlets involved in this litigation.
Congress has authorized the creation of the Corporation for Public Broadcasting, whose Board of Directors is appointed by the President by and with the advice and consent of the Senate. 47 U. S. C. § 396 . A total of 223 television and 560 radio stations made up this nationwide public broadcasting system as of June 30, 1972. See 1972 Corporation for Public Broadcasting Annual Report. It is a nonprofit organization and by the terms of § 396 (b) is said not to be “an agency or establishment of the United States Government.” Yet, since it is a creature of Congress whose management is in the hands of a Board named by the President and approved by the Senate, it is difficult to see why it is not a federal agency engaged in operating a “press” as that word is used in the First Amendment. If these cases involved that Corporation, we would have a situation comparable to that in which the United States owns and manages a prestigious newspaper like the New York Times, Washington Post, or Sacramento Bee. The Government as owner and manager would not, as I see it, be free to pick and choose such news items as it desired. For by the First Amendment it may not censor or enact or enforce any other “law” abridging freedom of the press. Politics, ideological slants, rightist or leftist tendencies could play no part in its design of programs. See Markel, Will It be Public or Private TV?, World, Mar. 13, 1973, p. 57; *150 Shales, WGBH-TV: An Ultimatum Against “Improper” White House Influence, Washington Post, Apr. 27, 1973, p. E2. More specifically, the programs tendered by the respondents in the present cases could not then be turned down.
Governmental action may be evidenced by various forms of supervision or control of private activities. Burton v. Wilmington Parking Authority, 365 TJ. S. 715. I have expressed the view that the activities of licensees of the government operating in the public domain are governmental actions, so far as constitutional duties and responsibilities are concerned. See Garner v. Louisiana, 368 U. S. 157, 183-185 (concurring); Lombard v. Louisiana, 373 U. S. 267, 281 (concurring); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 179 (dissenting). It is somewhat the same idea expressed by the first Mr. Justice Harlan in his dissent in Plessy v. Ferguson, 163 U. S. 537, 554 . But that view has not been accepted. If a TV or radio licensee were a federal agency, the thesis of my Brother Brennan would inexorably follow. For a licensee of the Federal Government would be in precisely the situation of the Corporation for Public Broadcasting. A licensee, like an agency of the Government, would within limits of its time be bound to disseminate all views. For, being an arm of the Government, it would be unable by reason of the First Amendment to “abridge” some sectors of thought in favor of others. The Court does not, however, decide whether a broadcast licensee is a federal agency within the context of these cases.
II
If a broadcast licensee is not engaged in governmental action for purposes of the First Amendment, I fail to see how constitutionally we can treat TV and radio differently than we treat newspapers. It would come *151 as a surprise to the public as well as to publishers and editors of newspapers to be informed that a newly created federal bureau would hereafter provide “guidelines” for newspapers or promulgate rules that would give a federal agency power to ride herd on the publishing business to make sure that fair comment on all current issues was made. In 1970 Congressman Farbstein introduced a bill, 1 never reported out of the Committee, which provided that any newspaper of general circulation published in a city with a population greater than 25,000 and in which only one separately owned newspaper of general circulation is published “shall provide a reasonable opportunity for a balanced presentation of conflicting views on issues of public importance” and giving the Federal Communications Commission power to enforce the requirement.
Thomas I. Emerson, our leading First Amendment scholar, has stated that:
“[A]ny effort to solve the broader problems of a monopoly press by forcing newspapers to cover all 'newsworthy* events and print all viewpoints, under the watchful eyes of petty public officials, is likely to undermine such independence as the press now shows 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 of Government into a field which in this Nation has been reserved for individuals, whatever part of the spectrum of opinion they represent. Benjamin Franklin, one of the Founders who was in the newspaper business, wrote in simple and graphic form what I had always assumed was the basic *152 American newspaper tradition that became implicit in the First Amendment. In our early history one view was that the publisher must open his columns
“to any and all controversialists, especially if paid for it. Franklin disagreed, declaring that his newspaper was not a stagecoach, with seats for everyone; he offered to print pamphlets for private distribution, but refused to fill his paper with private altercations.” 2 F. Mott, American Journalism 55 (3d ed. 1962).
It is said that TV and radio have become so powerful and exert such an influence on the public mind that they must be controlled by Government. 3 Some *153 newspapers in our history have exerted a powerful — and some have thought — a harmful interest on the public mind. But even Thomas Jefferson, who knew how base and obnoxious the press could be, never dreamed of interfering. For he thought that government control of newspapers would be the greater of two evils. 4
“I deplore . . . the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. . . . These ordures are rapidly depraving the public taste.
“It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost.”
Of course there is private censorship in the newspaper field. But for one publisher who may suppress a fact, there are many who will print it. But if the Government is the censor, administrative fiat, not freedom of choice, carries the day.
As stated recently by Harry Kalven, Jr.:
“It is an insufficiently noticed aspect of the First Amendment that it contemplates the vigorous use of self-help by the opponents of given doctrines, ideas, and political positions. It is not the theory that all ideas and positions are entitled to flourish under freedom of discussion. It is rather then that they must survive and endure against hostile criticism. There is perhaps a paradox in that the suppression of speech by speech is part and parcel of the principle of freedom of speech. Indeed, one big reason why policy dictates that government keep its hands off communication is that, in this area, self-help of criticism is singularly effective. . . .
“Free, robust criticism of government, its officers, and its policy is the essence of the democratic *154 dialectic — of 'the belief,’ again to quote Brandéis, 'in the power of reason as applied through public discussion.’ The government cannot reciprocally criticize the performance of the press, its officers, and its policies without its criticism carrying implications of power and coercion. The government simply cannot be another discussant of the press’s performance. Whether it will it or not, it is a critic who carries the threat of the censor and more often than not it wills it. Nor is it at all clear that its voice will be needed; surely there will be others to champion its view of the performance of the press.
“The balance struck, then, is avowedly, and even enthusiastically, one-sided. The citizen may criticize the performance and motives of his government. The government may defend its performance and its policies, but it may not criticize the performance 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 built upon predecessor cases, put TV and radio under a different regime. I did not participate in that decision and, with all respect, would not support it. The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends. In 1973 — as in other years — there is clamoring to make TV and radio emit the messages that console certain groups. There are charges that these mass media are too slanted, too partisan, too hostile in their approach to candidates and the issues.
The same cry of protest has gone up against the newspapers and magazines. When Senator Joseph Me- *155 Carthy was at his prime, holding in his hand papers containing the names of 205 “Communists” in the State Department (R. Feuerlicht, Joe McCarthy and Me-Carthyism 54 (1972)), there were scarcely a dozen papers in this Nation that stood firm for the citizen’s right to due process and to First Amendment protection. That, however, was no reason to put the saddle of the federal bureaucracy on the backs of publishers. Under our Bill of Rights people are entitled to have extreme ideas, silly ideas, partisan ideas.
The same is true, I believe, of TV and radio. At times they have a nauseating mediocrity. At other times they show the dazzling brilliance of a Leonard Bernstein ; and they very often bring humanistic influences of faraway people into every home.
Both TV and radio news broadcasts frequently tip the news one direction or another and even try to turn a public figure into a character of disrepute. Yet so do the newspapers and the magazines and other segments of the press. The standards of TV, radio, newspapers, or magazines — whether of excellence or mediocrity — are beyond the reach of Government. Government — acting through courts — disciplines lawyers. Government makes criminal some acts of doctors and of engineers. But the First Amendment puts beyond the reach of Government federal regulation of news agencies save only business or financial practices which do not involve First Amendment rights. Conspicuous is Associated Press v. United States, 326 U. S. 1 , where enforcement of the antitrust laws against a news-gathering agency was held to be not inconsistent with First Amendment rights.
Government has no business in collating, dispensing, and enforcing, subtly or otherwise, any set of ideas on the press. Beliefs, proposals for change, clamor for controls, protests against any governmental regime are pro *156 tected 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 by reason of the Fourteenth. Some have thought that at the state level the First Amendment was somewhat “watered down” and did not have the full vigor which it had as applied to the Federal Government. See Both v. United States, 354 U. S. 476, 502-503 (Harlan, J., concurring). So far, that has been the minority view. See Malloy v. Hogan, 378 U. S. 1, 10 . But it is quite irrelevant here, for the First Amendment, like other parts of the Bill of Rights, was at the outset applicable only to the Federal Government. 5 The First Amendment is written in terms that are absolute. Its command is that “Congress shall make no law . . . abridging the freedom of speech, or of the press
That guarantee, can, of course, be changed by a constitutional amendment which can make all the press or segments of the press organs of Government and thus control the news and information which people receive. Such a restructuring of the First Amendment cannot be done by judicial fiat or by congressional action. The ban of “no” law that abridges freedom of the press is in my view total and complete. 6 The Alien and Sedition Acts, 1 Stat. 566 , 570, 596, passed early in our history were *157 plainly unconstitutional, as Jefferson believed. Jefferson, indeed, said that by reason of the First Amendment
“libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of the Congress of the United States, passed on the 14th of July, 1798, entitled 'An Act in Addition to the Act entitled “An Act for the Punishment of certain Crimes against the United States,” ' which does abridge the freedom of the press, is not law, but is altogether void, and of no force.” 4 J. Elliot's Debates on the Federal Constitution 541 (1876).
And see 15 Writings of Thomas Jefferson 214 (Memorial ed. 1904); 14 id., at 116 ; 11 id., at 43-44 .
Those Acts had but a short life, and we never returned to them. We have, however, witnessed a slow encroachment by Government over that segment of the press that is represented by TV and radio licensees. Licensing is necessary for engineering reasons; the spectrum is limited and wavelengths must be assigned to avoid stations interfering 7 with each other. Red Lion Broadcasting Co. v. FCC, 395 U. S., at 388 . The Commission has a duty to encourage a multitude of voices but only in *158 a limited way, viz., by preventing monopolistic practices and by promoting technological developments that will open up new channels. 8 But censorship 9 or editing or the screening by Government of what licensees may broadcast goes against the grain of the First Amendment.
The Court in National Broadcasting Co. v. United States, 319 U. S. 190, 226 , said, “Unlike other modes of *159 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 governmental regulation.”
That uniqueness is due to engineering and technical problems. But the press in a realistic sense is likewise not available to all. Small or “underground” papers appear and disappear; and the weekly is an established institution. But the daily papers now established are unique in the sense that it would be virtually impossible for a competitor to enter the field due to the financial exigencies of this era. The result is that in practical terms the newspapers and magazines, like TV and radio, are available only to a select few. Who at this time would have the folly to think he could combat the New York Times or Denver Post by building a new plant and becoming a competitor? That may argue for a redefinition of the responsibilities of the press in First Amendment terms. 10 But I do not think it gives us *160 carte blanche to design systems of supervision and control or empower Congress to read the mandate in the First Amendment that “Congress shall make no law . . . abridging the freedom ... of the press” to mean that Congress may, acting directly or through any of its agencies such as the FCC make “some” laws “abridging” freedom of the press.
Powerful arguments, summarized and appraised in T. Emerson, The System of Freedom of Expression, cc. XVII and XVIII (1970), can be made for revamping or reconditioning the system. The present one may be largely aligned on the side of the status quo. The problem implicates our educational efforts which are bland and conformist and the pressures on the press, from political and from financial sources, to foist boilerplate points of view on our people rather than to display the diversities of ideologies and culture in a world which, as Buckminster Fuller said, has been “communized” by the radio.
What kind of First Amendment would best serve our needs as we approach the 21st century may be an open question. But the old-fashioned First Amendment that we have is the Court’s only guideline; and one hard and fast principle which it announces is that Government *161 shall keep its hands off the press. That principle has served us through days of calm and eras of strife and I would abide by it until a new First Amendment is adopted. That means, as I view it, that TV and radio, as well as the more conventional methods for disseminating news, are all included in the concept of “press” as used in the First Amendment and therefore are entitled to live under the laissez-faire regime which the First Amendment sanctions.
The issues presented in these cases are momentous ones. TV and radio broadcasters have mined millions by selling merchandise, not in selling ideas across the broad spectrum of the First Amendment. But some newspapers have done precisely the same, loading their pages with advertisements; they publish, not discussions of critical issues confronting our society, but stories about murders, scandal, and slanderous matter touching the lives of public servants who have no recourse due to New York Times Co. v. Sullivan, 376 U. S. 254 . Commissioner Johnson of the FCC wrote in the present case a powerful dissent. He said:
“Although the First Amendment would clearly ban governmental censorship of speech content, government must be concerned about the procedural rules that control the public forums for discussion. If someone — a moderator, or radio-television licensee— applies rules that give one speaker, or viewpoint, less time (or none at all) to present a position, then a censorship exists as invidious as outright thought control. There is little doubt in my mind that for any given forum of speech the First Amendment demands rules permitting as many to speak and be heard as possible. And if this Commission does not enact them, then the courts must require them.” 25 F. C. C. 2d 216, 232.
*162 But the prospect of putting Government in a position of control over publishers is to me an appalling one, even to the extent of the Fairness Doctrine. The struggle for liberty has been a struggle against Government. The essential scheme of our Constitution and Bill of Rights was to take Government off the backs of people. Separation of powers was one device. An independent judiciary was another device. The Bill of Rights was still another. And it is anathema to the First Amendment to allow Government any role of censorship over newspapers, magazines, books, art, music, TV, radio, or any other aspect of the press. There is unhappiness in some circles at the impotence of Government. But if there is to be a change, let it come by constitutional amendment. The Commission has an important role to play in curbing monopolistic practices, in keeping channels free from interference, in opening up new channels as technology develops. But it has no power of censorship.
It is said, of course, that Government can control the broadcasters because their channels are in the public domain in the sense that they use the airspace that is the common heritage of all the people. But parks are also in the public domain. Yet people who speak there do not come under Government censorship. Lovell v. Griffin, 303 U. S. 444, 450-453 ; Hague v. CIO, 307 ü. S. 496; 515-516. It is the tradition of Hyde Park, not the tradition of the censor, that is reflected in the First Amendment. TV and radio broadcasters are a vital part of the press; and since the First Amendment allows no Government control over it, I would leave this segment of the press to its devices.
Licenses are, of course, restricted in time and while, in my view, Congress has the power to make each license limited to a fixed term and nonreviewable, there is no power to deny renewals for editorial or ideological rea *163 sons. The reason is that the First Amendment gives no preference to one school of thought over others. 11
The Court in today’s decision by endorsing the Fairness Doctrine sanctions a federal saddle on broadcast licensees that is agreeable to the traditions of nations that never have known freedom of press 12 and that is tolerable in countries that do not have a written constitution containing prohibitions as absolute as those in the First Amendment. Indeed after these cases were argued the FCC instituted a “non-public” inquiry 13 to *164 determine whether any broadcaster or cablecaster has broadcast “ 'obscene, indecent or profane language’ in violation of” 18 U. S. C. § 1464 .
In April 1973, the FCC fined Sonderling Broadcasting Corp., which operates station WGLD in Oak Park, Illinois, for allowing “obscene” conversations on a telephone “talk show.” It used Roth v. United States, 354 U. S. 476 , Memoirs v. Massachusetts, 383 U. S. 413 , and Ginz-burg v. United States, 383 U. S. 463 , as supplying the criteria for broadcasting. It fined the corporation $2,000 under 18 U. S. C. § 1464 , which reads, “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.”
Commissioner Johnson dissented, saying that the FCC prefers “to sit as an omniscient programming review board, allegedly capable of deciding what is and is not good for the American public to see and hear”; and that when the FCC bars a particular program it casts “a pall over the entire broadcasting industry” for the reason that the licensees “fear the potential loss of their highly profitable broadcast licenses.” That, he concluded, creates a “chilling effect” which has “enormous proportions” and reaches “all forms of broadcast expression.”
We ourselves have, of course, made great inroads on the First Amendment of which obscenity is only one of the many examples. So perhaps we are inching slowly toward a controlled press. But the regime of federal supervision under the Fairness Doctrine is contrary to our constitutional mandate and makes the broadcast licensee an easy victim of political pressures and reduces him to a timid and submissive segment of the press whose measure of the public interest will now be echoes of the dominant political voice that emerges after every election. The affair with freedom of which we have been *165 proud will now bear only a faint likeness of our former robust days.
Ill
I said that it would come as a surprise to the public as well as to publishers and editors of newspapers to learn that they were under a newly created federal bureau. Perhaps I should have said that such an event should come as a surprise. In fact it 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. The effort to suppress the publication of the Pentagon Papers failed only by a narrow margin and actually succeeded for a brief spell in imposing prior restraint on our press for the first time in our history. See New York Times Co. v. United States, 403 U. S. 713 .
In recent years the admonition of Mr. Justice Black that the First Amendment gave the press freedom so that it might “serve the governed, not the governors” (id., at 717) has been disregarded.
“The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” Ibid.
The right of the people to know has been greatly undermined by our decisions requiring, under pain of contempt, a reporter to disclose the sources of the information he comes across in investigative reporting. Branz-burg v. Hayes, 408 U. S. 665 .
*166 The Boston Globe reports: 14
“In the last two years at least 20 Federal Grand Juries have been used to investigate radical or antiwar dissent. With the power of subpoena, the proceedings secret, and not bound by the rules of evidence required in open court, they have a lot more leverage than, for example, the old House Un-American Activities Committee.”
Many reporters have been put in jail, a powerful weapon against investigative reporting. As the Boston Globe states, “in reality what is being undermined here is press freedom itself.” 15
In the same direction is the easy use of the stamp “secret”' or “top secret” which the Court recently approved in Environmental Protection Agency v. Mink, 410 U. S. 73 . That decision makes a shambles of the Freedom of Information Act. In tune with the other restraints on the press are provisions of the new proposed Rules of Evidence which the Court recently sent to Congress. Proposed Rule 509 (b) provides:
“The government has a privilege to refuse to give evidence and to prevent any person from giving evidence upon a showing of reasonable likelihood of danger that the evidence will disclose a secret of state or official information, as defined in this rule.”
Under the statute if Congress does not act, 16 this new regime of secrecy will be imposed on the Nation and the *167 right of people to know will be further curtailed. The proposed code sedulously protects the Government; it does not protect newsmen. It indeed pointedly omits any mention of the privilege of newsmen to protect their confidential sources.
These growing restraints on newspapers have the same ominous message that the overtones of the present opinion have on TV and radio licensees.
The growing specter of governmental control and surveillance over all activities of people makes ominous the threat to liberty by those who hold the executive power. Over and over again, attempts have been made to use the Commission as a political weapon against the opposition, whether to the left oí to the right.
Experience has shown that unrestrained power cannot be trusted to serve the public weal even though it be in governmental hands. The fate of the First Amendment should not be so jeopardized. 17 The constitutional mandate that the Government shall make “no law” abridging freedom of speech and the press is clear; the orders and rulings of the Commission are covered by that ban; and it must be carefully confined lest broadcasting — now our most powerful media — be used to subdue the minorities or help produce a Nation of people who walk submissively to the executive's notions of the public good.
*168 Mills v. Alabama, 384 U. S. 214 , involved a prosecution of a newspaper editor for publishing, contrary to a state statute, an editorial on election day urging the voters to vote against the existing city commission and to replace it with a mayor-council government. This Court, speaking through Mr. Justice Black, reversed the judgment saying:
“[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.” Id., at 219 .
I would apply the same test to TV or radio. 18
*169 What Walter Lippman wrote about President Coolidge’s criticism of the press has present relevancy. Coolidge, he said, had
“ ‘declared for peace, good-will, understanding moderation; disapproved of conquest, aggression, exploitation; pleaded for a patriotic press, for a free press; denounced a narrow and bigoted nationalism, and announced that he stood for law, order, protection of life, property, respect for sovereignty and principle of international law. Mr. Coolidge’s catalog of the virtues was complete except for one virtue. . . . That is the humble realization that God has not endowed Calvin Coolidge with an infallible power to determine in each concrete case exactly what is right, what is just, what is patriotic. . . . Did he recognize this possibility he would not continue to lecture the press in such a way as to make it appear that when newspapers oppose him they are unpatriotic, and that when they support him they do so not because they think his case is good but because they blindly support him. Mr. Coolidge’s notion . . . would if it were accepted by the American press reduce it to utter triviality.’ ” J. Luskin, Lippman, Liberty, and the Press 60 (1972).
*170 The same political appetite for oversight of most segments of the press has markedly increased since the bland days of Calvin Coolidge.
H. R. 18927, 91st Cong., 2d Sess.
Congress provided in 47 U. S. C. § 153 (h) that "a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier/'
“To say that the media have great decisionmaking powers without defined legal responsibilities or any formal duties of public accountability is both to overestimate their power and to put forth a meaningless formula for reform. How shall we make the New York Times 'accountable' for its anti-Vietnam policy? Require it to print letters to the editor in support of the war? If the situation is as grave as stated, the remedy is fantastically inadequate. But the situation is not that grave. The New York Times, the Chicago Tribune, NBC, ABC, and CBS play a role in policy formation, but clearly they were not alone responsible, for example, for Johnson's decision not to run for re-election, Nixon’s refusal to withdraw the troops from Vietnam, the rejection of the two billion dollar New York bond issue, the defeat of Carswell and Haynsworth, or the Supreme Court’s segregation, reapportionment and prayer decisions. The implication that the people of this country — except the proponents of the theory — are mere unthinking automatons manipulated by the media, without interests, conflicts, or prejudices is an assumption which I find quite maddening. The development of constitutional doctrine should not be based on such hysterical overestimation of media power and underestimation of the good sense of the American public.” Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access, 85 Harv. L. Rev. 768 , 786-787 (1972).
T. Jefferson, Democracy 150-151 (Padover ed. 1939).
Barron v. Mayor of Baltimore, 7 Pet. 243 .
The press in this country, like that of Britain, was at one time subject to contempt for its comments on pending litigation. Toledo Newspaper Co. v. United States, 247 U. S. 402 . But that position was changed. See Bridges v. California, 314 U. S. 252, 267 . Federal habeas corpus, however, is available to give a man his freedom and the prosecution an opportunity for a new trial where the conduct of the press has resulted in an unfair trial. Sheppard v. Maxwell, 384 U. S. 333 . And change of venue may be had where the local atmosphere has saturated the community with prejudice. See Bideau v. Louisiana, 373 U. S. 723 .
The Senate Report which accompanied the bill that became the. Radio Act of 1927, 44 Stat. 1162 stated:
“If the channels of radio transmission were unlimited in number the importance of the regulatory body would be greatly lessened, but these channels are limited and restricted in number and the decision as to who shall be permitted to use them and on what terms and for what periods of time, together with the other questions connected with the situation, requires the exercise of a high order of discretion and the most careful application of the principles of equitable treatment to all the classes and interests affected. For these and other reasons your committee decided that all power to regulate radio communication should be centered in one independent body, a radio commission, granting it full and complete authority over the entire subject of radio.” S. Rep. 772, 69th Cong., 1st Sess., 3.
Scarcity may soon be a constraint of the past, thus obviating the concerns expressed in Red Lion. It has been predicted that it may be possible within 10 years to provide television viewers 400 channels through the advances of cable television. R. Smith, The Wired Nation 7 (1972); see Brandywine-Main Line Radio, Inc. v. FCC, 153 U. S. App. D. C. 305, 362-365, 473 F. 2d 16, 73-76 (Bazelon, J., dissenting).
Currently, press censorship covers most of the globe. In Brazil the present regime of censorship is pervasive. As reported in the New York Times for Feb. 17, 1973, p. 11:
“The censors’ rules, issued a few months ago and constantly amended, cover a vast field and if strictly applied would leave the press little to discuss. In practice, however, much depends on the whims and suspicions of the local censors.
"General prohibitions include protests against censorship, any discussion of a successor to President Emilio Garrastazu Médici, whose term is up in 1974, campaigns against the Government’s special powers by decree and sensational news that might hurt the image of Brazil.
“Others are campaigns to discredit the national housing program, the financial market or other matters of vital importance to the Government, the playing up of assaults on banks or credit establishments, tension between the Roman Catholic Church and the state, agitation in union and student circles, and publicity for Communist personalities and nations. Criticism of state governors and ‘exaltation of immorality’ through news of homosexuality, prostitution and drugs are also barred.
"The most controversial order, issued by the Minister of Justice last September, bans all news, comment or interviews on a political relaxation of the regime, on democracy for Brazil, and on the economic and financial situation in general.”
Indeed, it can be argued that the existence of newspapers, and thus their access to the public, is dependent upon the preferential mailing privileges newspapers receive through second-class postage rates. This is a privilege afforded by the Government, and, as my Brother StewaRT recognizes, a form of subsidy.
Under the Postal Reorganization Act, the new Postal Rate Commission is empowered to fix postage rates at levels high enough to make each class of mail pay its own way. John Fischer reports that the increase in second-class mail rates for magazines and periodicals (127%) is “nothing less than a death sentence for an unpredictable number of publications.” The Easy Chair, Harper’s Magazine 30, 31 (May 1973). It is not the established giants of the publishing field that will suffer most, for it is estimated that some 10,000 magazines and small newspapers will be forced out of existence. Id., at 30 . Fischer mentions specifically the National Review, Human Events, The Nation, and The New Republic. These are the publications that offer us the rich diversity of opinion and *160 reporting the First Amendment is designed to promote and protect. As Senator McGee, Chairman of the Post Office and Civil Service Committee, has said: “I believe that the American public generalljr has a vested interest in the survival of newspapers and magazines. Regardless of the economic, political, or social policies which they espouse, they contribute to the nation's thought process. I am personally convinced that the Congress should not permit magazines to go under because the cost of distributing them through the postal system is higher than their readers are willing to pay.” Id., at 32 .
In addition to the benefits of reduced postage rates, newspapers have been afforded a limited antitrust exemption. Newspaper Preservation Act, 15 U. S. C. § 1801 et seq.
Judge Bazelon, dissenting in Brandywine-Main Line Radio, Inc. v. FCC, 153 U. S. App. D. C., at 358-359, 473 F. 2d, at 69-70 , said: “WXUR was no doubt devoted to a particular religious and political philosophy; but it was also a radio station devoted to speaking out and stirring debate on controversial issues. The station was purchased by Faith Theological Seminary to propagate a viewpoint which was not being heard in the greater Philadelphia area. The record is clear that through its interview and call-in shows it did offer a variety of opinions on a broad range of public issues; and that it never refused to lend its broadcast facilities to spokesmen of conflicting viewpoints.
“The Commission’s strict rendering of fairness requirements, as developed in its decision, has removed WXUR from the air. This has deprived the listening public not only of a viewpoint but also of robust debate on innumerable controversial issues. It is beyond dispute that the public has lost access to information and ideas. This is not a loss to be taken lightly, however unpopular or disruptive we might judge these ideas to be.” (Footnotes omitted.)
If Eastern European experience since World War II is any criterion, the newspapers are pretty much the company paper in the huge company (Communist) nation. The easiest target, however, seems to be TV where the input can be carefully controlled and “prime time” filled with tapes of official meetings, political speeches, and the tedious accounts of achievement of the workers. See Morgan, Press Obedience in East Europe, Washington Post, May 19, 1973, p. A14.
FCC Order No. 73-331, 39 Fed. Reg. 8301 (Mar. 27, 1973).
The People's Need to Know, Editorial Series, Jan. 21-27, 1973, reprinted from Boston Globe, p. 12.
Id., at 13 .
By reason of an Act of Congress of Mar. 30, 1973, the Rules of Evidence — and amendments to the Rules of Civil Procedure and to the Rules of Criminal Procedure (which we sent up Nov. 20, 1972, and Dec. 18, 1972) — will have no force or effect except to the extent that Congress expressly approves. 87 Stat. 9 .
Alexander Bickel has spurned the “total agnosticism” that allows the First Amendment to have its way because “who really knows, after all, what is true or false, evil or good, noxious or wholesome.” The Press and Government: Adversaries Without Absolutes, Freedom at Issue 5 (May-June 1973). He attributes this view to Mr. Justice Holmes. He would place at least partial responsibility with the Government for determining the “good counsels and wholesome doctrine.” Ibid. But, it was precisely the mistrust of the evanescent, narrow, factional views of those in power and the belief that no one has a patent on the “truth” that underlay the First Amendment.
The monetary and other burdens imposed on the press by the right of a criticized person to reply, like the traditional damage remedy for libel, lead of course to self-censorship respecting matters of importance to the public that the First Amendment denies the Government the power to impose. The burdens certainly are as onerous as the indirect restrictions on First Amendment rights which we have struck down: (1) the requirement that a bookseller examine the contents of his shop, Smith v. California, 361 U. S. 147 (1959); (2) the requirement that a magazine publisher investigate his advertisers, Manual Enterprises, Inc. v. Day, 370 U. S. 478, 492-493 *169 (1962) (opinion of Harlan, J.); (3) the requirement that names and addresses of sponsors be printed on handbills, Talley v. California, 362. U. S. 60 (1960); (4) the requirement that organizations supply membership lists, Gibson v. Florida Legislative Investigation Committee, 372 U. S. 639 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 IJ. S. 293 (1961); Bates v. City of Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958); and (5) the requirement that individuals disclose organizational membership, Shelton v. Tucker, 364 U. S. 479 (1960). In each instance we held the restriction unconstitutional on the ground that it discouraged or chilled constitutionally protected rights of speech, press, or association.