John Armor

People who don’t know much about freedom of the press (or don’t care much about it) often say that the government has a right to regulate the content of broadcast media because "the public owns the airways." If that were true, the government would have a right to censor your personal phone calls and e-mails.

Let’s take this a step at a time. The Radio Act of 1927 and all of its legal descendents to the Federal Communications Commission’s laws and regulations today have one consistent aspect. All these laws allow the government to control what frequencies are issued, who uses them, and at what power level they are used.

The point of these laws is obvious. For radio, and later TV, to be able to function effectively, the stations cannot step on each other’s frequencies.

The Supreme Court last spoke on the subject of censorship of broadcast media in the Red Lion case in 1969. The Court then upheld the Fairness Doctrine, but did so on the basis that the broadcast media were "scarce" compared to the print media.

At that time there were slightly more than 4,000 daily newspapers but about one quarter as many radio and TV stations. Since then those numbers have more than reversed. Daily newspapers have died off to about 2,000 and radio and TV stations now well exceed 10,000. Even the most casual observer should be able to see that the basis for the Supreme Court’s decision in Red Lion has disappeared.

It must be asked, “What makes something public?” when discussing what constitutes the “public airways.” Are roads and highways public – and city sidewalks, as well? Note that the most ardent proponents of media censorship don’t go so far as to claim a right to censor the print media. Yet newspapers deliver their wares by trucks that travel on public highways to boxes that sit on public sidewalks.

And thanks to advances in technology, today the vast majority of all communications are, at some point, electronic. Even USA Today, the largest national newspaper, is entirely electronic when it is sent from its headquarters in Virginia to its six printing plants around the nation. Seeing how this means of communications depends so heavily upon the use of public infrastructure, should the government have a say in what USA Today prints on its pages? Or who owns the newspaper?

John Armor

John Armor practiced First Amendment law in the US Supreme Court for 33 years and wrote this article at the behest of the American Civil Rights Union.