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 And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux.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.
Kevin says:
At first glance this ruling seems to be about everything one could reasonably hope for from it (regarding the Court for protecting political speech from governmental suppression), even if only 5-4.
I wonder if changes in the Court’s composition will see it overturned in the years ahead or if the opponents of free speech on the Court will come around in time.
January 21, 2010, 12:25 pmJohn Thacker says:
And don’t forget how you noted Justice Thomas disagreeing with Red Lion and Pacifica in FCC v. Fox Television.
January 21, 2010, 12:25 pmBZ says:
And don’t forget the fascinating language about blog freedom on P. 49.
January 21, 2010, 12:26 pmSoronel Haetir says:
I’m impressed there were only 5 opinions. I was expecting an utter mess like we got in 2002. And this along with 2A cases may be enough to cement Bush’s nominees as wise choices for the bench.
I do find it amazing that the same justices most willing to find 1A violations at the fringes of expressive conduct are the same justices who are most willing to uphold restrictions that strike at the very heart of political discourse.
I also find it strange that at the federal level you have the disclosure requirements when in the 90s there was an Ohio case about anonymous leafleting where the state had a disclosure requirement. The justices ruled in that case that the disclosure was a 1A violation. Perhaps that goes to the second class status of broadcast media mentioned above?
January 21, 2010, 12:45 pmChris Travers says:
This doesn’t seem like a proper rationale to me in terms of a second-class status for television ads, although it does address forum issues.
I don’t know about anyone else, but I always thought we had FCC rules over scarce over air-wave communications because of their scarcity. In such a scarce resource, it might be reasonable to fear distortion of dialog in a way that does not apply to pamphlets, VOD, etc.
For example, Walmart (the largest corporation in America) could print pamphlets urging the election of a candidate. They could print millions of these pamphlets and hire people to distribute them door-to-door. However, ultimately this doesn’t preclude, say, IBM from printing different pamphlets and paying them to be distributed door-to-door. If every major corporation wanted to do this, there is no real bar to this happening.
Similarly, newspaper ads are not naturally scarce. Newspapers could, if they wish, print more pages to include more ads.
However, if every major corporation wanted to air an ad every hour on every major TV channel, this could not happen. TV ad-space naturally scarce. One fundamental issue here is that major influx in corporate advertising for candidates around election times has the possibility to increase prices, and to price even election campaigns out of the market.
So I can see an Austin-like rationale applying to TV and radio. I can’t see it applying to VOD, the internet, to newspapers, etc. However, my suspicion based on this paragraph is that either the justices didn’t consider the scarcity argument, or that they would demand a record of specific problems from Congress.
January 21, 2010, 1:01 pmChris Travers says:
Really? Which justices?
Both Scalia and Stevens have been remarkably consistent in their 1A jurisprudence, though they are often on opposite sides.
January 21, 2010, 1:03 pmruuffles says:
@Travers, Haetir
You won’t have to wait long for another 1A case. The ban on “crush videos” has been argued so just waiting for the opinion to see how they fall.
January 21, 2010, 1:14 pmChris Travers says:
Yeah. It will be interesting to see if the court comments on a first amendment right of a hypothetical human sacrifice channel.
January 21, 2010, 2:20 pmSoronel Haetir says:
Except that the scarcity is going away. Markets are no longer limited to the three or four broadcast TV stations in an region as used to be the case. I’ve seen material claiming that up till the 1980s or so that was the natural limit of the spectrum because stations required a full channel of separation due to interference. I don’t know whether that was actually true due to not being old enough and even in the 80s was living far beyond the reach of broadcast TV.
Even more to the point is that even where someone is watching a local network affiliate there is no guarantee about how they are receiving i. I get the closest thing to local affiliates available, from Juneau and Anchorage, but do so over sattelite, and others closer to town have cable available. Are we actually going to have different rules for those same stations depending on delivery mechanism?
January 21, 2010, 2:26 pmChris Travers says:
So, we make it only apply to over-the-air broadcast TV and radio. This means of course that a lot of cable stations would qualify but not all.
January 21, 2010, 2:30 pmTweets that mention The Volokh Conspiracy » Blog Archive » Citizens United on the Second-Class First Amendment Status of Broadcast TV and Radio? -- Topsy.com says:
[...] This post was mentioned on Twitter by Josh Barro, Eugene Volokh. Eugene Volokh said: Citizens United on the Second-Class First Amendment Status of Broadcast TV and Radio?: The Court has long treated … http://bit.ly/8yCp8M [...]
January 21, 2010, 4:20 pmMark says:
Broadcast scarcity is to the existing 1A broadcast line of cases as Roe’s trimester viability voodoo is to the abortion case: dynamite waiting to explode. In fact, if we had intellectual honesty, in both cases, it already has.
January 21, 2010, 5:00 pmSam Hall says:
“However, if every major corporation wanted to air an ad every hour on every major TV channel, this could not happen.”
Yes it could. The networks would raise the price until supply and demand balanced, something they already do.
January 21, 2010, 5:03 pmSam Hall says:
“I’ve seen material claiming that up till the 1980s or so that was the natural limit of the spectrum because stations required a full channel of separation due to interference. I don’t know whether that was actually true due to not being old enough and even in the 80s was living far beyond the reach of broadcast TV. ”
True, because the FCC wanted TV sets to be cheap.
January 21, 2010, 5:06 pmChris Travers says:
My point is that there isn’t enough space for everyone to have their say, and raising the price might well price even the campaigns out of the picture if everyone wanted the advertising space.
January 21, 2010, 5:46 pmSam Hall says:
Chris Travers says:
My point is that there isn’t enough space for everyone to have their say, and raising the price might well price even the campaigns out of the picture if everyone wanted the advertising space.
There never is. For example, there aren’t enough billboards for rent for everybody to have they say. The ones that do get “to have their say” are the ones willing to pay the going rate, just like anything else.
January 21, 2010, 6:08 pmSoronel Haetir says:
An example would be Stevens who would uphold the law at issue in Citizens United but would prohibit states from banning nude dancing under a 1A analysis. Souter though was with the majority on the case I found.
Barnes v Glen Theater and Kitty Kat Lounge 501 U.S. 560
Could probably find others if I spent more than 1 minute looking.
January 21, 2010, 6:40 pmChris Travers says:
However, TV advertising is different. If you drive down the freeway, you will see that most of the billboard advertising is done by local businesses. If you turn on cable TV you will find that nearly all advertising comes from a few large players.
What I am suggesting is that there may be justification to try to prevent a person from monopolizing the marketplace of ideas just as we try to prevent a person from monopolizing the marketplace of goods and services.
The alternatives (requiring a reasonable rate to go to campaigns even if the market rate is far higher) would seem equally problematic, perhaps even moreso.
It may be that since this is free speech, that we may have to wait for there to be a serious problem and for congress to issue a rule about it in conjunction with extensive factual findings. However I think we would be wrong not to be concerned.
January 21, 2010, 6:55 pmChris Travers says:
Stevens’ 1A jurisprudence has been rather weak. Nude dancing is not SO offensive that it can be put together with flag burning and obscenity in his mind. I think he has been rather consistent in his views, but rather weak in his support generally for the first amendment.
Now, Scalia, OTOH, seems to find nude dancing not protected by the first amendment, but thinks it protects flag burning. Perhaps United States v. Stevens will shed some light into whether his thinking has changed, given the “crush video” rationale.
January 21, 2010, 7:02 pmSoronel Haetir says:
Except that in its way flag burning is generally an intensely political act. At least the sorts of flag burning that riles people. And because of that I see Scalia’s reluctant agreement that it is protected as being very consistent.
It would be interesting to see a facial challenge of a nudity ban where the nudity was in fact somehow political rather than economic in nature. I read a story where that scenario played out actually, not that the courts got involved. A minor plot element was that women started going bare chested as a political statement against an Islamist threat.
January 21, 2010, 10:26 pmSoronel Haetir says:
The point being that Scalia believes that 1A protections are strongest when political speech is at issue.
January 21, 2010, 10:28 pmThe Citizens United Decision: Speech is Speech Regardless of the Speaker — Technology Liberation Front says:
[...] Volokh makes much the same point. Perhaps we are finally seeing an end to America’s “First Amendment Twilight [...]
January 22, 2010, 6:50 pm