Almost exactly two years ago, I wrote a blog post called “The Supreme Court Does Not Want To Revisit Constitutionality of Broadcast or Cable Regulation. Get OVer It and Get On With Your Lives.” I bring this up because yesterday the Supreme Court rejected without comment what some commentators saw as the most likely vehicle for such a challenge, Minority Television Project v. FCC.
Not only did Minority Television Project provide the opportunity to overrule Red Lion and abolish all those pesky ownership limits and public interest obligations, it framed this as an opportunity to further expand Citizens United. How could the majority possibly resist, especially given the groupthink that the Supreme Court is simply lusting to overturn Red Lion and totally deregulate the broadcast industry at the first opportunity? And yet, somehow, they resisted. The FCC’s authority to impose broadcast ownership limits (and other spectrum ownership limits for that matter) remains not only intact, but subject to the lenient “rational basis” standard of scrutiny.
Nevertheless the groupthink that Red Lion and Turner Broadcasting are either already dead, or very sick and going to die, remains impenetrable. It has become the classic case of the self-fulfilling prophecy. except for stuff around the edges like the non-commercial set aside at issue in this case. To borrow from Stephen Colbert, the argument that Supreme Court has overruled Red Lion (and Turner Broadcasting) and therefore we should all ignore it doesn’t need facts; it has become “factesque.”
I unpack this below for those who don’t live and breathe this stuff.
To summarize briefly. The FCC regulates broadcasting, and other forms of wireless, under the very permissive “rational basis” standard. As long as there is a rational basis for the FCC’s actions, and as long as the action is content neutral, the FCC can impose regulations like how many licenses a licensee can hold and service limitations like setting aside licenses for non-commercial use.
First Amendment law lives or dies by the standard of review. Rational basis is fairly easy. Direct regulation of the press, such as requiring a license to publish a newspaper and limiting every city to three daily newspapers and 5 weeklies, would get “strict scrutiny.” i.e., there must be some vital government interest that the government can accomplish in no other way than by the regulation of the speech at issue. This is such a high standard that the expression in 1st Amendment circles is “strict in theory, fatal in fact.” Almost no law survives strict scrutiny.
In between Strict Scrutiny and Rational Basis lies “Intermediate Scrutiny.” To pass “intermediate scrutiny,” you need to show a “compelling” government purpose that burdens the speech in question no more than necessary to achieve the stated purpose.
Broadcasting, and spectrum regulation generally, get Rational Basis scrutiny. This goes back to a 1943 Supreme Court case called NBC v. United States. There, the FCC imposed the first ever ownership limit on how many radio licenses anyone could hold (answer: 1). The Supreme Court reasoned that the “unique physical characteristics of radio” — that two people simultaneously broadcasting can interfere with each other — justify government regulation of the “use of radio” in a way that does not apply to other media. Because the government must artificially ration the number of licenses available to the public, the licenses are “scarce,” and the government has a responsibility to distribute this “access to the public airwaves” according to what serves “the public interest, convenience, and necessity.”
The “Scarcity Doctrine” is actually associated much more with a different Supreme Court case called Red Lion Broadcasting v. FCC. The Red Lion case has the strongest language with regard to the right of the public to have broadcast licensees serve the public interest rather than their private interests. As a result, all those focused on getting broadcasting (and spectrum use generally) deregulated have invested squindoodles of effort and bags of money in blasting Red Lion as anachronistic, and affront to the First Amendment, and certain to get reversed by the Supreme Court as soon as they get around to it. The idea that “Scarcity is dead” (although I am not allowed to broadcast without a license) and “Red Lion is dead” has such a grip on the collective consciousness of everyone in Telecom Policy land that people act as if it doesn’t exist. It is regarded as an embarrassment, except for the millions of people who actually expect the FCC to enforce the law and do stuff to ensure that licensees that use the “public airwaves” serve “the public interest, convenience and necessity.”
But, as I wrote two years ago, the Supreme Court stubbornly refuses to address Red Lion. When the Supreme Court had Fox Broadcasting v. FCC in front of it, it could have said “the only way to justify the law against indecent broadcasting is because broadcasting is subject to rational basis scrutiny. We decide rational basis scrutiny no longer holds and overrule Red Lion.” Lots and lots of people begged the Supremes to do this. But they didn’t. And the Supreme Court has consistently turned down any other case that would revisit this question.
This does not, of course, make a single dent in the collective groupthink that Red Lion is dead, scarcity is dead, and we must never regulate the broadcast industry based on the actual constitutional standard. Obviously, the collective wisdom goes, the Supreme Court is just waiting for the right case and the social conservatives didn’t want to do anything that what eliminate the ability to regulate indecent broadcasting. But the next time the perfect case comes up, the Supreme Court will totally pounce on Red Lion, gut it, and mount it’s head on the wall as a trophy for First Amendment absolutism and the awesome power of deregulation.
But they didn’t.
Minority Television Project v. FCC
Minority TV Project v. FCC looked like the perfect vehicle for the Supreme Court to overturn Red Lion, if the Supreme Court genuinely wanted to revisit this issue. The case involves a non-commercial TV station. The FCC has a “set aside” for non-commercial stations. Congress later put this in a statute. 47 USC 399B. The Minority TV Project got their license as a non-commercial station, then decided they wanted to take advertising. The FCC fined them. Minority TV Project challenged the fines in court.
After losing at the district court level, a panel of the Ninth Circuit initially sided with Minority TV, at least on the question of political advertising. Using the “intermediate scrutiny” standard because the regulation kinda sorta goes to content but is still broadcasting (based on a Supreme Court case called League of Women Voters v. FCC), the panel found that government’s “compelling interest” in promoting non-commercial broadcasting could not prohibit political advertising because the the vital public importance of hearing people explain how other people Are Destroying America. En banc, the 9th Circuit reversed the panel, with a bunch of dissents saying this whole Red Lion thing is stupid and television ought to be treated just like a newspaper, with the exception of the fact that the government will still give out little “broadcast newspaper monopolies” in the form of spectrum licenses. (Almost no one who hates Red Lion actually wants to get rid of exclusive licensing. They like scarcity just fine. They just don’t think the government ought to have a role other than artificially creating the scarcity for their benefit.)
Minority TV Project appealed to the Supreme Court, arguing that (a) Red Lion is totally stupid, everyone knows it’s stupid, and we all know you have just been waiting for the perfect chance to overrule it; (b) this is the perfect chance to overrule it; and, (c) You can always say that Citizens United trumps Red Lion and that’s why we should have political ads everywhere all the time rah rah Free Speech and Freedom of the Press for those that own one.
A chance to overrule Red Lion and expand Citizens United at the same time! How could the Supreme Court possible say no?
But they did say no. Without comment, the Supreme Court rejected Minority TV Project’s Petition for Certiorari. Once again, the big game hunters after Red Lion come home empty handed.
I do not expect this to change the minds of anyone. That is the power of groupthink. But I do feel a certain responsibility to keep chronicling this as yet another example of how the groupthink is not only wrong, it continues to persist despite all real world evidence to the contrary.
Stay tuned . . . .