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For decades, TV and radio broadcasters have made content decisions based on their own editorial discretion — the newsworthiness of a program, or the needs and interests of their audience. These choices have rarely been challenged by the Federal Communications Commission (FCC), which regulates broadcast media, and the agency has never rejected or revoked a license over what content an outlet chooses to air. 

This policy of regulatory restraint began in the Reagan administration and continued thereafter, reflecting a bipartisan aversion to speech regulations, says Stuart M. Benjamin, a scholar of First Amendment, telecommunications, and administrative law at Duke Law School.

In a new article he discusses this longstanding FCC self-restraint and the fact that it was a policy choice that created a norm — a norm that a later FCC could upend. That’s because broadcast licenses are subject to programming review under a unique statutory structure that gives the FCC more influence over broadcast content than that of cable, print, or online content.

“Ultimately, broadcasting serves as a case study in the limits of legal protections for speech,” Benjamin says. “Norms of self-restraint, rather than legal constraints, have been doing much of the work — and the erosion of those norms would have profound implications for the future of media in the United States.”

The Communications Act of 1934 gave the Federal Communications Commission (FCC) authority to issue and renew broadcast licenses based on what the FCC determines to be the “public interest, convenience, or necessity.” Benjamin notes that this public interest authority is capacious, imposing little statutory constraint on the FCC. “The FCC can, if it wants to, become a micromanager of broadcasters under the statute, because the statute says, ‘Do whatever you think is in the public interest,’” Benjamin said. “By design, the statute does not impose any meaningful limits.” And if broadcasters perceive that license renewal depends on the pleasure of regulators rather than a legal standard, they might feel pressure to self-censor content to avoid regulatory scrutiny.

Benjamin notes that the Supreme Court upheld FCC regulations in two seminal cases. The first was 1969’s Red Lion ruling, which involved the fairness doctrine. That doctrine required broadcasters to air speech the FCC deemed valuable, in the form of contrasting views. (The doctrine was repealed in the Reagan administration and never reinstated, and thus was part of the regulatory restraint that Benjamin noted.) The Supreme Court upheld the fairness doctrine based on the “scarcity” of airwaves. The second was 1978’s Pacifica, which upheld regulations on indecent content based on broadcast’s pervasiveness and accessibility to children.

A constitutional bulwark

Benjamin says there are two ways that protections for broadcasters could be strengthened. One, Congress could change the law to replace the public interest standard with narrower authority, reducing the possibility that broadcasters feel coerced, whether explicitly or not, into altering editorial decisions. 

Second, the Supreme Court could remove the basis for enhanced regulation of broadcast by overturning Red Lion and Pacifica. Those cases were decided at a time when three major television networks commanded 90% of viewers and cable television didn’t exist, let alone the internet that gave rise to streaming platforms, Benjamin said. Today, TV captures only about 20% of viewers and spectrum capacity has significantly increased.

“Most people, myself included, think that if the court ever reconsidered Red Lion and Pacifica it would overrule them,” Benjamin said. “Why haven't they done so? Because the FCC has been so restrained, there haven’t been cases to bring to the Supreme Court in the first place.” 

Ultimately, Benjamin said, any attempt to revoke a broadcast license over an editorial decision will likely run afoul of the First Amendment. The Supreme Court has “categorically prohibited” regulations based on viewpoint.

“The real constraint on the FCC isn’t public interest, convenience, or necessity. It's the First Amendment,” Benjamin said.

“Penalizing broadcasters for their editorial choices is punishing them for a viewpoint they have expressed. There’s never been a case in which the Supreme Court has allowed viewpoint discrimination of broadcasters, and it is impossible to imagine any viewpoint-based regulation that would pass constitutional muster.”