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The History of Broadcast Content Regulation:

I just got my hands on my copy of Krattenmaker & Powe's Regulating Broadcast Programming, a very good book on the subject. A few highlights:

  1. The Radio Act of 1927 authorized licensing decisions based on the content of the speech (despite its provision supposedly banning "censorship").

  2. By 1930, the Federal Radio Commission was restricting what it saw as "propaganda stations," on the theory that "there is no place for a station catering to any group" (said in an opinion about a Chicago Federation of Labor station).

  3. By the early 1930s, the FRC was also restricting "bitter and personal" and "ignoran[t]" "attack[s]" on "public officials."

  4. This pattern of restriction continued for the following decades. In the 1960s WLBT, for instance, the FCC took steps (though not very strong steps) to restrict white racist television programming, on the theory that such programming didn't adequately serve black viewers. The D.C. Circuit eventually ordered the FCC to strip the station of its license.

  5. Likewise, in the early 1970s, the FCC expressly warned broadcasters that it was against their public service duties to play songs "tending to promote or glorify the use of illegal drugs," and issued a 22-song "do not play" list, including "Lucy in the Sky with Diamonds," "Mr. Tambourine Man," "Truckin," and others. Radio stations generally complied (at least for a time).

  6. The equal opportunities rules that had required broadcasters who chose to carry certain materials involving candidates to provide equal access to other candidates had been around since 1927. Their high water mark came in 1959, when a news reporting showing "Mayor Richard Daley greeting the president of Argentina at Midway Airport during a snowstorm" was found to trigger a duty to provide equal time to Daley's challenger (apparently something of a joke challenger) Lar Daly; this prompted Congress to provide some exceptions for news reports.

  7. The Fairness Doctrine's "roots go back to the FRC's hostility to 'propaganda stations'"; this turned in 1940 into the decision that broadcasters "could never editorialize," and then was revised in 1949 into the doctrine that broadcasters could editorialize but had to provide access to rival views.

There's more, but this should give people a sense of how restricted broadcast programming has been for nearly all of its existence. I say this not to praise the restrictions; far from it. I'm glad that the Court has cut back on the restrictions, at least apparently imposing a viewpoint-neutrality requirement, and I hope the Court cuts back on them still more. I'm glad that the FCC has repealed the Fairness Doctrine.

But I hope this warns people not to complain that somehow some broadcasting restrictions show that "we don't have freedom of speech in America any more." Whether we're talking about political speech or speech more broadly, broadcast speech is at least as free today from government restriction as it almost ever has been, and considerably freer than it has been at many times in the past.

Colin (mail):
Is this a primarily academic work, or something you'd recommend to someone with a more casual interest in the subject?
7.20.2007 2:25pm
Lloyd George:
I would support a reversion back to the Fairness Doctrine. That would at least stop the right-wing editorializing going on in Fox News.
7.20.2007 2:30pm
Eugene Volokh (www):
Colin: I would recommend it -- it's both accessible to interested laypeople and technically sound and sophisticated enough for people who study the field.
7.20.2007 2:38pm
Everretttt:
I would support free speech and freedom from something like the FCC
7.20.2007 2:38pm
ifoughtthelaw (mail) (www):
Thanks for the tip. Sounds like a great read. Does it get into the Supreme Court cases dealing with the constitutionality of broadcast regulation?
7.20.2007 2:40pm
Tony Tutins (mail):
Although wearing an Uncle Sam suit made it hard to take perennial candidate Lar Daly seriously, during a late-life appearance on the Phil Donohue Show, Lar got quite a hand from the women in the audience for advocating that rapists be castrated.
7.20.2007 2:42pm
Eugene Volokh (www):
ifoughtthelaw: Yes.
7.20.2007 2:48pm
Duffy Pratt (mail):
All you've shown here is that the statement: "We don't have free speech in America anymore" has been true since at least 1927.
7.20.2007 3:04pm
George Lyon (mail):
"I would support a reversion back to the Fairness Doctrine. That would at least stop the right-wing editorializing going on in Fox News."

You cannot be serious. How about the left-wing editorializing going on NPR, CBS, NBC, ABC and especially MSNBC. Ever heard of Keith Olbermann? When was the last conservative you saw on Larry King? If anything the rather fair coverage of Fox News counters the slanted coverage of most of the rest of the media.
7.20.2007 3:08pm
Eugene Volokh (www):
Duffy Pratt: I had thought that people were aware -- as I mentioned in an earlier post in this chain -- that
Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn [to cover what today would be seen as serious literature], restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies [including ones that had clearly political content] essentially lacked any First Amendment protection from the 1910s to the 1950s.
7.20.2007 3:28pm
EnriqueArmijo (mail):
Colin/ifoughtthelaw: I second Prof. Volokh's recommendation, and add that the book also discusses the constitutional and policy problems with other affirmative programming obligations such as children's television requirements and the like. Also, the book was published in '94, so you could find a used copy online fairly easily for about ten bucks.
7.20.2007 3:31pm
steve (mail):

[T]he FCC expressly warned broadcasters that it was against their public service duties to play songs "tending to promote or glorify the use of illegal drugs," and issued a 22-song "do not play" list, including "Lucy in the Sky with Diamonds," "Mr. Tambourine Man," "Truckin," and others.


That certainly was a resounding success.
7.20.2007 3:48pm
Dave N (mail):
I would support a reversion back to the Fairness Doctrine. That would at least stop the right-wing editorializing going on in Fox News.

Actually, no--nor the left-wing editorializing on MSNBC for that matter. Neither channel broadcasts over the public airwaves. Both channels are cable and outside the scope of any Fairness Doctrine or the power of the FCC to regulate.
7.20.2007 3:53pm
steve (mail):
BTW, was Donovan's Mellow Yellow on the list? (Country Joe McDonald finally copped to starting the rumor that you could get high smoking the scrapings from banana peels...but for a time...)
7.20.2007 3:55pm
Fub:
steve wrote at 7.20.2007 2:48pm:
That certainly was a resounding success.
At least as successful as a decade earlier, when the FCC and the FBI both investigated "Louie, Louie" trying mightily to decipher obscenities in the Kingsmen's lyrics. The outcome was "indecipherable at any speed".

FBI reports on "Louie, Louie", in two parts: here and here.
7.20.2007 5:17pm
Lev:

But I hope this warns people not to complain that somehow some broadcasting restrictions show that "we don't have freedom of speech in America any more."


It won't. And the people who complain the most about it never bother to consider that if there were as little free speech in the US as they claim, they themselves would be jail for what they say.
7.21.2007 12:09am
David M. Nieporent (www):
I would support a reversion back to the Fairness Doctrine. That would at least stop the right-wing editorializing going on in Fox News.
The interesting thing about this statement -- and it's hardly a unique one -- is how open liberals are about wanting to use the Fairness Doctrine to censor those they disagree with. They don't pretend that they want more time for liberal views; they're quite up front about the fact that they hope to silence conservative ones.
7.21.2007 2:23am
Tagore Smith:

Lar got quite a hand from the women in the audience for advocating that rapists be castrated.


That's an emotionally loaded issue... seen Bananas ;)?

I don't think a plurality of women will ever favor even the most popular libertarian measures. It is not in their interests to do so.

This is just one place where Libertarians have to face cold reality. The truth is that giving women the vote was enough to kill libertarianism. Letting them keep it is enough to keep it dead. This should be obvious but boy does it anger people... discuss.
7.21.2007 4:59am
Kurt (www):
Thanks for the recommendation. I've recently started compiling a reading list for broadcast indecency/profanity and other similar content regulations, and this will fit in nicely. To clarify, though, is there an edition of this book that is more recent than 1994? Quite a bit has happened since then.

For those interested in the topic, I would also highly recommend Marjorie Heins' "Not in Front of the Children." Her focus is not strictly on broadcast content, but anyone interested in that topic will likely also be interested in similar issues of content regulation.
7.21.2007 2:02pm