Red Lion Broadcasting Co. v. FCC
Decided on June 9, 1969; 395 US 367


Broadcasters challenge Federal Communications Commission's "Fairness Doctrine"

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: First Amendment (press, speech, association)

B. Legal Question Presented:

Did the FCC's fairness doctrine regulations, requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage, violate freedoms of speech and press guaranteed by the First Amendment?
II. CASE SUMMARY:

A. Background:

The Federal Communications Commission (FCC) for many years imposed on radio and television broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage.

FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a radio broadcast which constituted a personal attack on journalist Fred J. Cook.  Cook's 1964 book, Goldwater: Extremist on the Right, sparked political controversy. After the book appeared, Cook was attacked by conservative evangelist Billy James Hargis on his daily Christian Crusade radio broadcast, on WGCB in Red Lion, Pennsylvania.  The FCC ordered petitioner to send a transcript of the broadcast to Mr. Cook and provide reply time, whether or not Mr. Cook would pay for it. Red Lion Broadcasting challenged the constitutionality of the fairness doctrine with respect to this particular broadcast.

The Court of Appeals for the District of Columbia Circuit upheld the FCC's position as constitutional and proper. After the commencement of the Red Lion case, the FCC began a rule-making proceeding to ensure that the personal attack aspect of the fairness doctrine was more precise and more readily enforceable, and to specify its rules related to political editorials.

Meanwhile, FCC's fairness doctrine's requirements concerning all broadcasts were challenged in the circuit court case US v. Radio Television News Directors Association. The new rules, as adopted and amended, were held unconstitutional by the Court of Appeals for the 7th Circuit, as abridging the freedoms of speech and press.

Red Lion Broadcasting Company appealed to the US Supreme Court and their writ of certiorari was granted.  It was consolidated with US v. Radio Television News Directors Association and both cases were heard together by the high court.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant and
Respondent/Appellee)
Opposing Side
(Respondent/Appellee and
Petitioner/Appellant)
Solicitor General Griswold argued the cause for the United States and the Federal Communications Commission, petitioners in US v. Radio Television News Directors Association and respondents in Red Lion Broadcasting Co. v. FCCWith him on the brief were Assistant Attorney General McLaren, Deputy Solicitor General Springer, Francis X. Beytagh, Jr., Henry Geller, and Daniel R. Ohlbaum.

Roger Robb argued the cause for petitioners in Red Lion Broadcasting Co. v. FCC.  With him on the brief were H. Donald Kistler, and Thomas B. Sweeney.

Archibald Cox argued the cause for respondents in US v. Radio Television News Directors Association.  With him on the brief for respondents Radio Television News Directors Assn. et al. were W. Theodore Pierson, Harold David Cohen, Vernon C. Kohlhaas, and J. Laurent Scharff.

On the brief for respondent National Broadcasting Co., Inc., were Lawrence J. McKay, Raymond L. Falls, Jr., Corydon B. Dunham, Howard Monderer, and Abraham P. Ordover.

On the brief for respondent Columbia Broadcasting System, Inc., were Lloyd N. Cutler, J. Roger Wollenberg, Timothy B. Dyk, Robert V. Evans, and Herbert Wechsler.
C. The Arguments:
ACLU Side
(Petitioner/Appellant
and Respondent/Appellee)
Opposing Side
(Respondent/Appellee and
Petitioner/Appellant)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant and
Respondent/Appellee)
Opposing Side
(Respondent/Appellee and
Petitioner/Appellant)
Briefs of amici curiae urging reversal in US v. Radio Television News Directors Association and affirmance in Red Lion Broadcasting Co. v. FCC were filed by Melvin L. Wulf and Eleanor Holmes Norton for the American Civil Liberties Union and by Earle K. Moore and William B. Ball for the Office of Communication of the United Church of Christ et al. J. Albert Woll, Laurence Gold and Thomas E. Harris filed a brief for the American Federation of Labor & Congress of Industrial Organizations urging reversal in US v. Radio Television News Directors Association. No amici curiae briefs were filed on behalf of the petitioners in Red Lion Broadcasting Co. v. FCC or respondents in US v. Radio Television News Directors Association.
IV. THE SUPREME COURT'S DECISION:

"Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest.

In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional. The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA [US v. Radio Television News Directors Association] reversed and the causes remanded for proceedings consistent with this opinion."


Held: The Judgment of Court of Appeals in Red Lion Broadcasting affirmed and in RTNDA  [US v. Radio Television News Directors Association] reversed.  
Justice Vote: 8 Pro vs. 0 Con
  • White, B. Pro (Wrote the majority opinion)
  • Marshall, T.  Pro (Joined majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Harlan, J. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Black, H. Pro (Joined majority opinion)
  • Burger, W. Pro (Joined majority opinion)
  • Douglas, W. Took no part in the decision making of the case
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging reversal in US v. Radio Television News Directors Association and affirmance in Red Lion Broadcasting Co. v. FCC ; the US Supreme Court reversed the Court of Appeals judgment in US v. Radio Television News Directors Association and affirmed it in Red Lion Broadcasting Co. v. FCC, in an 8-0 vote, giving ACLU an apparent win.

[Editor's Note: In Meredith Corp. v. FCC, the United States Court of Appeals for the District of Columbia Circuit declared that the Fairness Doctrine was not mandated by Congress and that the FCC did not have to continue to enforce it. The FCC subsequently dissolved the doctrine in August of that year (1987).]