Legal Commentary

Citizens United on the Second-Class First Amendment Status of Broadcast TV and Radio?

By Eugene Volokh

The Court has long treated over-the-air broadcast TV and radio as less constitutionally protected than newspapers, magazines, books, and (in recent years) cable television and the Internet. That?s why the Fairness Doctrine was unanimously upheld in 1969 (in the Red Lion case), and a similar (though narrower) state law for newspapers was unanimously struck down in 1974. Likewise, the ban on broadcast vulgarities (see the Pacifica case) has been justified by the less protected status of broadcast radio and television.

The Citizens United majority doesn?t have to squarely deal with this question ? the issue is raised only indirectly ? but it includes language that casts considerable doubt on this second-class status of broadcast TV and radio:

Citizens United further contends that §441b should be invalidated as applied to movies shown through video-on-demand, arguing that this delivery system has a lower risk of distorting the political process than do television ads. On what we might call conventional television, advertising spots reach viewers who have chosen a channel or a program for reasons unrelated to the advertising. With video-on-demand, by contrast, the viewer selects a program after taking ?a series of affirmative steps?: subscribing to cable; navigating through various menus; and selecting the program.

While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questionsas to the courts? own lawful authority. Substantial questions would arise if courts were to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 639 (1994).

Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all to interpret a law that beyond doubt discloses serious First Amendment flaws. The interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. First Amendment standards, however, ?must give the benefit of any doubt to protecting rather than stifling speech.?

This is especially significant given the Court?s earlier hints, for instance in Turner Broadcasting System, Inc. v. FCC (1994), that the Justices were no longer fans of the special treatment of broadcasting.

Full post as published by The Volokh Conspiracy on January 21, 2010 (boomark / email).