FREE SPEECH vs. RIGHT TO BROADCAST
A number of inquiries received at the Commission are from persons or groups who believe that there is a First Amendment, constitutionally protected right to broadcast. However, the Supreme Court of the United States has repeatedly ruled on this subject and concluded that no right to broadcast exists.
In National Broadcasting Co. v. United States, 319 U.S. 190 (1943), the Supreme Court stated, in pertinent part, as follows (footnotes omitted):
We come, finally, to an appeal to the First Amendment. The Regulations, even if valid in all other respects, must fall because they abridge, say the appellants, their right of free speech. If that be so, it would follow that every person whose application for a license to operate a station is denied by the Commission is thereby denied his constitutional right of free speech. Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation. Because it cannot be used by all, some who wish to use it must be denied. . . . The right of free speech does not include, however, the right to use the facilities of radio without license. The licensing system established by Congress in the Communications Act was a proper exercise of its power over commerce. The standard it provided for licensing of stations was the 'public interest, convenience, and necessity.' Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.
In addition, in Red Lion Broadcasting Co., Inc. v. United States, 395 U.S. 367, 89 S.CT. 1794 (1969), the Supreme Court of the United States stated, in pertinent part, as follows (footnotes omitted):
When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is used in the present state of commercially acceptable technology.
It was this fact, and the chaos which resulted from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934. National Broadcasting Co. v. United States, 319 U.S. 190, 210 - 214 (1943). It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.
Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want to broadcast but there are only 10 frequencies to allocate, all of them may have the same 'right' to be a licensee; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licensees to broadcast and by limiting the number of licensees so as not to overcrowd the spectrum.
This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. [citation omitted here]. No one has a first amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech.' National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943).
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