Red Lion and Pacifica: Are they Relics?

Abstract

Geoffrey Stone's fine keynote address offers a superb summary of the lessons of twentieth century First Amendment litigation. Like Stone's monumental Perilous Times and his Chicago predecessor Harry Kalven's A Worthy Tradition, Stone is largely celebratory of the Supreme Court and its more modem interpretations of the First Amendment. Much of my work on the First Amendment has a different focus. There is precious little in the broadcast jurisprudence to celebrate because of the Court's conclusion that "[i]t is well settled that the First Amendment has a special meaning in the broadcasting context. In applying this "special" meaning, the Court's two major decisions, Red Lion Broadcasting v. FCC and FCC v. Pacifica Foundation, constitute an embarrassment-for "special" in fact means decidedly less.

Stone noted, albeit without mentioning broadcasting, that there are special areas where First Amendment doctrine is modified. But it is Orwellian to decide that the medium from which most Americans receive most of their news and most of their entertainment is a special area. It would be much more realistic to state that everything else is special because its influence is limited. Broadcasting is the central area of the First Amendment where government supervision of speech has a constitutional mandate. 

In 1969, Red Lion sustained the FCC's personal attack rules, whereby if a person was attacked during the discussion of a controversial issue of public importance, that individual was entitled to free airtime to respond. The personal attack rule was a recent off-shoot of the more famous Fairness Doctrine, which required broadcasters to air information about controversial issues of public importance and to present opposing viewpoints on those issues selected for airing.

Nine years later, Pacifica sustained the ability of the FCC to penalize a station that aired programming that the FCC deemed indecent. A New York City station aired a twelve-minute satiric monologue by comedian George Carlin entitled "Filthy Words" at 2:00 p.m. on a Tuesday in October. The monologue repeatedly used seven words that Carlin prophetically claimed "you couldn't say on the public, ah, airwaves."

Both Red Lion and Pacifica raised two issues (although the Court did not separate them out). First, is there a distinction between broadcasting and other forms of communication (especially the print media)? Second, assuming there is a distinction, is it constitutionally relevant for First Amendment purposes? Both cases answered both questions in the affirmative.