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Communications and Society Program

Government-Created Scarcity: Thinking About Broadcast Regulation and the First Amendment

Tracy Westen
President
Center for Governmental Studies

Introduction

Differences in the characteristics of new media justify differences in the First Amendment standards applied to them.
-Red Lion v. FCC

Attempts to articulate a coherent First Amendment rationale for the affirmative government regulation of broadcast programming are often filled with puzzles and paradoxes1:

  • Scarcity. Some people cite broadcasting's alleged spectrum "scarcity" as a regulatory First Amendment rationale. But whether scarcity is defined in absolute terms (e.g., "there is very little of the broadcast spectrum to go around") or as a surfeit of demand over supply (e.g., "there are more who wish to broadcast than there are frequencies available"), it is difficult to explain why broadcast frequencies should be deemed more scarce than other equally desirable yet limited commodities. The physical world of "shoes and ships and sealing wax," to quote Lewis Carroll, is one of inherent limits on number and on amount of availability. Are broadcast frequencies any different? Newsprint and brilliant ideas are scarce, but we scarcely presume to regulate them.

  • Interference. Some people cite the broadcast spectrum's susceptibility to "interference" as a basis for program regulation, yet these interference problems could be solved without program regulation. We could sell or auction off broadcast frequencies, for example, give the recipients a property right against interference, and allow them to enforce those rights in the courts, just as we allow the courts to handle problems of property trespass (or "property interference").

  • Public Property. Some people maintain that a broadcaster's use of spectrum is analogous to the use of "public property" (e.g., as in "the public's airwaves"), and hence that use can be encumbered with content regulations. But, if anything, First Amendment doctrine has always viewed individual speech uses of governmentally owned public property as deserving the highest form of protection. Could individuals who use public parks for speech purposes be asked to present contrasting views on issues of public importance that they raise?

  • Trustee. Some people seek to describe broadcasters as "trustees" for the public, required to preserve on their behalf the full diversity of the broadcast marketplace of ideas. Yet by what process did these broadcasters become anointed as trustees? Could we merely define the New York Times as a "trustee" and then justify affirmative content regulation of its pages? And if not The New York Times, then why CBS or NBC?

In short, it is not immediately apparent why broadcast stations can legitimately be required to broadcast a rebuttal by a person attacked on one of its programs, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), but a daily newspaper of mass circulation cannot, e.g., Miami Herald v. Tornillo, 418 U.S. 241 (1974). Perhaps it was for this reason that the Supreme Court failed to insert even one footnote reference or citation to Red Lion in its Tornillo decision only five years later.

Despite the flawed nature of these rationales, a substantial rationale for the regulation of broadcast programming within the parameters of the First Amendment does exist. Its foundation is derived from the special characteristics of the broadcast medium itself, and its earliest rudiments can be identified in Red Lion. To understand the nature of this rationale, it is necessary to start with basics.

Speech: An Interference-Based Medium, Part I

When two people converse face to face, both should not speak at once if either is to be clearly understood.

-Red Lion v. FCC

Speech is an interference-based medium, as anyone can attest who has attended a loud cocktail party or a Wolfgang Puck restaurant. The human voice uses audible frequencies that can be interfered with by other voices. We have all learned various coping strategies to make ourselves heard in the face of such obstacles.

One strategy typically involves raising one's voice-increasing its volume or amplification, as it were.2 This can be of short-term utility, for it becomes ineffective if others respond in kind. One could also use bullhorns or other various methods of amplification, but again, if others adopt the same technique, communication becomes more difficult.

A second strategy involves lowering one's voice, moving closer to the person with whom one is conversing and talking more confidentially.3 This can be successful up to a point-in loud restaurants, perhaps, but not at rock concerts.

A third strategy, and one that we have all learned so well it is virtually unconscious, might be simply described as using the rules of polite conversation. At their most basic, these rules involve the following: First I speak, then you speak, then I respond, then you reply, etc. In groups, of course, this process becomes more intricate, but most of us have thoroughly mastered it by adulthood and rarely think about it.4 In essence, we have learned how to share the frequencies occupied by the human voice. We might call this strategy channel sharing. Put in these terms, all human speech occupies just one channel, the equivalent of one broadcast frequency.

Our ordinary conversational speech strategies are so familiar to us that we have forgotten how rule-bound our conversations are. In a college classroom, for example, students will rarely ask, "Why is the teacher doing all the talking?" It is assumed in such a context that teachers set the conversational rules, calling upon students when they wish, and occupying the remainder of the available spectrum space themselves.

In formal settings, however, such as town hall meetings, city council meetings, legislative debates, and Supreme Court oral arguments, more formal conversational rules are needed. Because control over audible speech frequencies in such settings is tantamount to political power, democracies apply a second-order set of rules to them. These seek roughly to equalize the time available to all similarly situated speakers, so that all may be given an equal opportunity to persuade their audiences. These rules can be highly detailed-such as "Robert's Rules of Order."

Perhaps the most important aspect of these rules, for our purposes, is an apparent paradox: that to maximize freedom of speech in such formal settings, it is first necessary to curtail it. The time allocated to one speaker in a legislative debate must be limited in order to allow others to speak. Put in almost Orwellian terms, freedom of speech rests on censorship. The speech of one must be time-limited in order to allow all to have their own chances to speak.

The Supreme Court may be the closest we have to an actual "shrine" for the First Amendment. Yet the bailiff's gavel, which raps the proceedings into silence at the start of oral arguments, is a form of court-enforced censorship. If two spectators insisted on continuing a conversation-exercising their First Amendment speech rights, as it were-they would be forcibly ejected from the proceedings. Moreover, in oral arguments, each advocate is given a time limit-say, a half an hour-to maximize speech opportunities for all the advocates. Could one such advocate successfully argue the need for at least an hour to present arguments fully, that the Court would be violating the advocate's First Amendment speech rights were it to deny that amount of time? Clearly not.5

What relation does this discussion have to the problems of broadcast regulation?

BROADCASTING: An Interference-Based Medium, Part II

Rather than confer frequency monopolies on a relatively small number of licensees, . . . the Government could surely have decreed that each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week.
-Red Lion v. FCC

Broadcasting is also an interference-based medium. Two stations on the same frequency, in the same geographical area, or with enough power substantially to reach each other, will interfere with each other's signal, so that it is difficult to understand either one. This describes the early days of radio.6

Just as humans have created tacit speech rules to maximize opportunities for all to speak, so too has the government created "rules of the road" to rationalize and provide for efficient use of the broadcast spectrum. It is worth deconstructing this process into explicit steps, however, both to elucidate the process and to disentangle from it the frequently confused First Amendment rhetoric of the courts.

The allocation and regulation of broadcasting frequencies in this country has required the following steps:

1. Reservation of spectrum for broadcast speech. First, the government must reserve sufficient portions of the spectrum for "public" speech (broadcasting), as opposed to "private" speech (police, fire, ship-to-shore, etc.), and to impose penalties for violating these regulatory borders. This preliminary step may seem quite unexceptional, yet it is worth stopping for a moment to consider its First Amendment implications. Because the regulatory division of spectrum by the Federal Communications Commission (FCC) has not been challenged in court under a First Amendment theory, let us hypothetically assume that an individual has filed a First Amendment action against the FCC, arguing that it has allocated too much spectrum space for police communications and too little for broadcasting, thereby depriving the plaintiff of an opportunity to attempt to speak via the broadcast spectrum. What level of First Amendment scrutiny would a court apply to this question?7

Strict scrutiny would not seem to be applicable, for the plaintiff's opportunity to speak is not being restricted because of its content. Intermediate scrutiny-requiring a substantial governmental interest and narrowly drawn means-might apply, but the governmental action in question, unlike the imposition of must-carry rules on either cable television systems8 or individuals bearing draft cards,9 for example, is not one in which the government is balancing speech against non-speech interests. Instead, where speech interests are balanced against other valid speech interests, it would seem most plausible to apply reasonable basis scrutiny, since one set of speech interests would not appear to warrant greater scrutiny (and justification by a higher governmental burden of proof) than the competing speech interest.10

In other words, the FCC's allocation of spectrum space between public and private uses should only be overturned if it is arbitrary or otherwise lacks a reasonable basis.

2. Allocation of spectrum between competing broadcast uses. Second, the FCC must decide how much spectrum to allocate to radio (AM and FM), and to television (VHF, UHF, and digital). Again, it would be difficult to mount a First Amendment challenge to these noncontent-related spectrum allocations, and any court asked to do so would probably reject a challenge under the reasonable basis test.

3. Allocation of content-related uses within spectrum allocations. Third, the FCC must address an apparently more difficult question: reserving portions of spectrum for specific content-related uses, such as public versus commercial broadcasting. Assume a twenty-four-station radio market in which the FCC has reserved four frequencies for non-commercial educational broadcast stations and twenty for commercial stations, and assume further that all the commercial frequencies are occupied but two of the non-commercial frequencies are vacant. Could a new commercial applicant mount a successful First Amendment challenge to this scheme, arguing that the FCC improperly allocated too much spectrum space for educational broadcasting, thereby depriving the plaintiff of an opportunity to engage in speech (commercial broadcasting)?

In this instance, the plaintiff might make the additional argument that the FCC has engaged in a form of content discrimination (as a distinction between non-commercial and commercial broadcasting can only be made by reference to the station's program content), and hence strict scrutiny should apply. Again, it seems probable that a court would apply reasonable basis scrutiny to reject plaintiff's argument, since the FCC made its spectrum allocation decision without reference to any particular program or viewpoint.11

4. Allocation of spectrum by time division. In the early days of radio, Federal Radio Commission (FRC) and the FCC occasionally allocated one frequency to two applicants-and in some instances to both a commercial and a non-commercial applicant. Each would receive the right to operate on the same frequency, for example, twelve hours a day.12 Today, there is no reason, either in spectrum physics or constitutional law, why the FCC might not follow a similar course-dividing, for example, one broadcast frequency among two applicants, giving each twelve hours a day; or dividing one frequency among seven applicants, giving each one day of the week.13

The FCC might even create a common carrier system, the ultimate time-division scheme, in which the licensee assigned the frequency would be required by law to make it available to any applicant who wished to use it on a first-come, first-served basis. Under such a system, practical notions of spectrum "scarcity" would vanish. Every individual would have a "right" to broadcast, just as every individual has a "right" to stand in line for admission to the new Getty Museum. Sooner or later, with patience and enough money, every individual could be a broadcaster, if only for a limited time period.14

Could a plaintiff challenge such FCC time divisions, asserting a First Amendment right to receive more time than others-more than twelve hours a day in a split frequency, for example, or more than one day a week in a seven-day allocation scheme, or more time than anyone else under a common carrier scheme? Again, it would seem that reasonable-basis scrutiny would generate a "No" answer. One applicant, having been awarded twelve hours out of twenty-four, for example, would seem to have no particular First Amendment right to obtain more time-at a cost of reducing the other tenant's time to, say, six hours. Whatever the policy merits of any particular FCC time allocation, therefore, it would not seem to be subject to compelling or even intermediate scrutiny.15

Government-Created Scarcity: A First Amendment Rationale for Broadcast Regulation

It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press.

-Red Lion v. FCC

We have now arrived at the crux of the matter. What is apparent is that traditional notions of spectrum "scarcity" are misconceived. The broadcast spectrum is not inherently more or less scarce than a wide range of other tangible and intangible commodities. There is, of course, a physical limit on the spectrum needed to present one's argument before a city council or the Supreme Court, just as there is a physical limit on the spectrum needed to broadcast. What is critical for our purposes, however, is the way the government has chosen to divide up the opportunities for speaking-whether before the Supreme Court or a broadcast audience.

The most fundamental decision in the FCC's entire scheme of allocation is its decision to allocate an entire frequency to one applicant-instead, for example, of creating a common carrier system in which anyone and everyone would be able, for a specified amount of time, to become a broadcaster simply by purchasing the time to be one. The broadcast spectrum is scarce because the government has legally limited it to a few speakers instead of many, not because of its inherent physical characteristics or the intensity of demand for its utilization.

The FCC's "rules" of speech allocation in an interference-based medium, in other words, tilt substantially in favor of a very few fortunate licensees, who are able, also according to these rules, to control virtually all of their frequency's time to the general exclusion of other speakers.16 This legally created scarcity may be perfectly reasonable, and even good frequency allocation policy,17 but it suggests an important justification for the regulation of broadcast programming.

Take, for example, the problem of political broadcasting time. Various proposals have been made to require broadcast licensees to provide political candidates with free time in which to present their views to the electorate.18 Licensees have typically responded by invoking analogies to newspapers and print media, arguing that such a regulation would deprive them of their First Amendment rights to control the editorial content of their stations' programming.

Conceptually, however, the First Amendment would seem to allow the FCC to give a broadcaster a license to use the frequency twenty-four hours a day for most of the year, but withhold, say, one hour a day from that licensee's control during the sixty days before an election. During this sixty-day period, the FCC could require this hypothetical licensee to turn off the transmitter one hour each day. During this same hour, the government would simultaneously turn on its own transmitter tuned to the same frequency. The government could then make that hour equally and publicly available to all candidates in the election on a first-come, first-served basis.

What would be such a licensee's First Amendment argument against such an allocation system-that it had a constitutional right to broadcast twenty-four hours a day all year, and it could not be forced to relinquish (or it had a right to obtain the extra) one hour a day during the period prior to an election? To state such an argument is to reject it. Such a system would withhold one hour a day from the licensee in order to create speech opportunities for dozens or hundreds of candidates. Such a balancing of speech rights would surely pass reasonable basis scrutiny.

Now let us assume that the government might reasonably conclude that such a system-requiring it to operate thousands of transmitters across the country, duplicating in every community all the existing licensees' transmitters so political candidates could broadcast for one hour a day during a sixty-day period prior to an election-would be inefficient. Could it instead require its existing licensees to make their transmitters available for such a purpose? Under what conditions would such a requirement be constitutional?

The answer requires a distinction between two questions: whether the licensee can be required to share frequency with others, and whether the licensee can be required to share facilities with others. Clearly the FCC could require a licensee to relinquish one hour a day for sixty days for use by candidates. Conceptually, the FCC could conclude that the licensee had never been given that time. Could the FCC also require the licensee to turn over the use of its transmitter and other facilities (cameras, tape playback systems, etc.) for candidates to use? The answer would seem to be "Yes" under several possible scenarios.

First, the FCC might reasonably conclude that licensees must make their facilities available to candidates in partial exchange for the value of their allocation of spectrum, which they have essentially received without payment. Under this approach, the value of the licensee's spectrum would first be estimated, then the rental value of the licensee's facilities would be deducted. So long as the value of the frequency exceeded the value of the rentals, there would be no charge.19

Second, and alternatively, the FCC might deem licensees to have made an implicit choice: that they would rather accept a system under which they would occasionally provide free channel capacity and the use of their facilities to political candidates for a short time during the year than a system in which they had no control over programming-as in a common carrier regime. In other words, in exchange for giving licensees considerably more than they might otherwise be entitled to (i.e., virtually complete control over their frequency for most of the year), the government would be entitled to ask for something in exchange-the periodic and limited use of their frequency.

The history of the 1934 Communications Act suggests support for this second scenario. Broadcasters wanted assurances from Congress that they would have a wide range of editorial rights and not be treated as common carriers; in turn, Congress wanted a commitment from the broadcasters that they would provide programming in the public interest (e.g., equal opportunities, etc.). This 1934 version of "Let's Make a Deal" generated two important legal provisions: the prohibition on "common carrier" regulation (in Section 3[h] of the Act), and the better-known requirement that broadcasters operate in the "public interest." What is not generally understood is that Section 3(h) is the linchpin in the government's system of legally created or government-created "scarcity" in broadcasting. Legally prohibiting the FCC from ever adopting a common carrier system was tantamount to excluding the vast majority of the American public from ever having the right to speak over the broadcast medium.20 The government made this concession to the broadcasters in exchange for their commitment to provide some measure of public interest programming.

These two scenarios (sharing frequency or sharing facilities) differ significantly. In the first scenario, the costs of the use of the licensee's facilities are offset against the value of the licensee's free spectrum. In the second scenario, the use of the licensee's facilities, either by outside speakers such as political candidates, or by the licensee on behalf of outside audiences as in children's programming, is offset against the value of the licensee's receiving almost total control over the allocated spectrum (in contrast with the diminished value of that spectrum to the licensee under a common carrier system).21

Conclusion

A licensee . . . has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens.

-Red Lion v. FCC

What is interesting about this famous Supreme Court statement is how clearly it does not apply to newspapers or the print media. It would be difficult, in light of the Tornillo decision, to paraphrase thus: "A newspaper . . . has no constitutional right to be the one who holds the right to print or to monopolize that newspaper to the exclusion of his fellow citizens."

It might be possible to interpret the first clause as holding only that anyone, whether a potential broadcaster or newspaper publisher, has an equal right to seek to become a broadcaster or publisher. The second clause, however, is more difficult. Virtually every Supreme Court decision on the subject would reject the conclusion that a newspaper publisher has no constitutional right to "monopolize" that newspaper "to the exclusion of his fellow citizens." As the Court said in Tornillo, the function of a newspaper editor is to edit, and that inevitably results in excluding the views of others as the editor sees fit.

The easiest way to understand the validity of this second clause from Red Lion is, in the context of broadcasting, to read it in the context of "government-created scarcity." A broadcast licensee has no constitutional right to monopolize the frequency received from the FCC because, along with that frequency, the broadcaster has also received a government-created legal right to exercise almost total control over it, excluding virtually anyone from its use. In exchange for this considerable grant of editorial control, the government can legitimately require that a licensee reasonably "share" its frequencies with others, either by turning it over to them for short periods of time (as with political candidates under Section 315), or by producing programming on their behalf (as with children's television programming). By contrast, although a newspaper publisher uses scarce newsprint to publish, that newsprint has not been made scarce by an action of the government in order to allocate an interference-based medium among other potential users, nor could the government make such a decision, because printing does not involve an interference-based medium.22

Red Lion's basic assumptions only make sense in the context of an interference-based medium that the government has rationalized not by opening it to all under, say, a common carrier policy, but instead by giving licenses almost total editorial control over their frequency in exchange for "public interest" programming obligations on behalf of the public.

Endnotes

 

1. Significant First Amendment differences exist between "affirmative" and "negative" broadcast regulation. Affirmative regulations require broadcast licensees to transmit more speech than they would otherwise wish and include, for example, the equal opportunities doctrine, the recently departed fairness doctrine, and requirements to air children's television programming. Negative regulations require broadcast licensees to transmit less speech than they would otherwise wish and include, for example, restrictions on obscenity, indecency, and certain commercials (e.g., lotteries). Although the constitutionality of both affirmative and negative regulations rests on various special characteristics of the broadcast media, this paper primarily addresses the general constitutionality of affirmative program regulations.
2. Early radio broadcasters often increased their power in order to drown out stations on the same frequency. One can still experience this phenomenon today by taking an automobile trip in the Southwestern U.S. deserts and listening to one radio station overcome another as one travels between transmitters.
3. The FCC uses this technique to separate stations around the country that are on the same frequency by lowering their broadcast power so they do not interfere with each other.
4. Children, it should be noted, must learn this technique; it does not seem to be genetically inherited. Young children frequently interrupt adult conversations, apparently without realizing that they are breaking a code of conversation.
5. To carry the analogy further, the Supreme Court has ruled in Buckley v. Valeo, 324 U.S. 1 (1976), that money is tantamount to speech in an election context, and that the amount of money a candidate spends on the campaign cannot be limited without a "compelling" governmental interest. Should the Supreme Court be required to allow advocates to pay for their oral advocacy time? Would it be deemed a violation of an advocate's First Amendment rights to prevent a candidate from purchasing substantially large amounts of time-perhaps hours or even days? Clearly, time allocation rules are necessary in any speech forum, and depriving one person of unlimited time to speak in order to allow others to be heard cannot alone be thought of as violating the First Amendment.
6. "Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that . . . [w]ithout government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard." Red Lion v. FCC.
7. Were an advocate before the Supreme Court to file a similar law suit, arguing that the Court had abridged the advocate's speech rights by allowing only a half hour for presentation of the merits of the case, the Court's choice of a level of scrutiny (strict, intermediate, or reasonable basis) might be resolved by similar considerations.
8. See Turner Broadcasting System v. FCC, 117 S.Ct. 1174 (1997).

9. See United States v. O'Brien, 391 U.S. 367 (1968).
10. Assume, for example, that a city council allowed each citizen five minutes to speak before it on a proposed regulation, and allocated two hours for the entire hearing (allowing a total of twenty-four citizens to speak). This would mean that the twenty-fifth individual wishing to speak would receive no time at all. Assume that this twenty-fifth citizen filed suit, arguing that the city's allocation of time improperly abridged that citizen's First Amendment rights. The appropriate response would presumably be that allocating fewer than five minutes to each speaker, thus giving the twenty-fifth speaker time to speak, would curtail the speech of the first twenty-four, thereby possibly preventing them from addressing the merits of their position in sufficient depth. A court asked to resolve this question might legitimately apply reasonable-basis scrutiny, since there is no apparent reason why the twenty-fifth speaker's speech interests would be entitled to greater scrutiny than the first twenty-four.
11. Compare Turner Broadcasting System v. FCC, 117 U.S. 1174 (1997). Is there a limiting case here-for example, an FCC allocation of twenty-three frequencies for non-commercial applicants and one for a commercial applicant, where only two of the non-commercial frequencies were occupied and dozens of commercial applicants are waiting in the wings? Even in this case, a successful plaintiff would have to argue not a right to a broadcast frequency, but a right to engage in commercial broadcasting, a somewhat difficult case to make.
12. Commercial licensees ultimately squeezed out their non-commercial partners, successfully arguing to the FCC that they should be given more and more of the frequency's time allotment, since they could use it more "efficiently" (i.e., they could broadcast longer hours, given their access to advertising revenues, whereas non-commercial broadcasters could not fill their allotment of hours due to a lack of funding). See R. W. McChesney, Telecommunications, Mass Media, & Democracy: The Battle for Control of U.S. Broadcasting, 1928-1935 (New York: Oxford University Press, 1994).
13. Although the various applicants for one frequency could each operate its own transmitter, it would make commercial sense for them to share a transmitter, studio, and facilities in a manner similar to newspapers' Joint Operating Agreements.
14 Under such a system, the FCC might also require the licensee to make available some portion of time on a free or substantially reduced-cost basis, much like it authorizes local franchising authorities to require cable television systems to provide public access channels today.
15. It could be argued, for example, that a common carrier system is inherently defective under the First Amendment, since it would prevent any one licensee from building up a coherent body of programming (as a newspaper can create a coherent body of text), and that divisions of spectrum in force today, which give almost total control to one licensee, are constitutionally required. Whatever the merits of such arguments on a policy level, it seems doubtful that they would rise to a constitutional level, in which a court could be asked to strike down a common carrier allocation system on First Amendment grounds. This is primarily because such a spectrum allocation balances one set of speech rights against another. A common carrier system of broadcast speech might deprive one speaker of the substantial amounts of broadcast time that today's licensees possess, but this would be counter-balanced by the First Amendment benefits resulting from a system in which thousands or millions of citizens would be given their first right to speak over the broadcast media.
16. See CBS v. DNC, 412 U.S. 94 (1973), deferring to the FCC's allocation scheme in which virtually all editorial control over each frequency is given to individual licensees, subject only to such regulations as the FCC's fairness doctrine.
17. The FCC's allocation scheme is not necessarily a bad one; indeed, it may be the most reasonable method for providing high-quality diverse programming. The current scheme does, however, have profound implications for the constitutionality of program regulations.
18. See T. Westen, A Proposal: Media Access for All Candidates and Ballot Measures, in this volume.
19. See, e.g., Charles Firestone, "The Spectrum Check-Off Approach," paper prepared for a meeting of The Aspen Institute Working Group on Digital Broadcasting and the Public Interest, January 25-27, 1998, Queenstown, Md., in which licensees would be offered a choice: pay for their portion of the spectrum and allow the candidates to buy time with public funds (derived from the spectrum fee), or not pay for their portion of the spectrum and provide candidates with offsetting free time.
20. By analogy, it would be as if a city council announced that, in the interest of conserving time, in the future only a few carefully selected "trustees" would be able to present testimony before it on matters of public interest. If such a system were implemented, it would be a mistake to attempt to justify it on the basis of "spectrum scarcity."
21. The law of "unconstitutional conditions," though never thoroughly developed by the Court, might also be useful here. In Sherbert v. Verner, 374 U.S. 398 (1963), for example, the Supreme Court invalidated, on First Amendment grounds, the dismissal of a government employee for failing to work on a Saturday (the employee was a Seventh Day Adventist whose religion prohibited work on Saturdays). The Court ruled that a Saturday work requirement imposed an unconstitutional burden upon a protected constitutional right. Broadcast licensees might argue that requiring them to present the views of others over their own facilities for a relatively brief period of time prior to an election amounts to an unconstitutional condition placed on their speech (use of the spectrum). The appropriate rebuttal is to point out that in Sherbert v. Verner, the government was asking an employee to give up a constitutionally protected right (practice of religion) in exchange for an economic opportunity (employment). The Court held that employment cannot be so burdened. In the broadcasting case, however, licensees are being asked to give up control over a small portion of their speech facilities in order to maximize the speech rights of others. In this situation, the constitutional equities favor the outside speaker. The "condition" imposed is a speech-favoring condition, an analysis more appropriate to an interference-based medium.
22. If trees were struck by a sudden plague, making newsprint physically scarce, would the government be able to limit the number of newspapers published, and in so doing require publishers to "share" their facilities with others, so that all views could be expressed? Since the marketplace of supply and demand would rationalize this newsprint by questions of cost, this might not be necessary.

 

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