The hunt for Red Lion goes on.
The Supreme Court has declined to review the latest case that offered the Court the opportunity to declare its 1969 Red Lion decision – and, more importantly, the spectrum scarcity rationale on which it was based – no longer viable. As a result, broadcasters will continue to bear the second-class First Amendment status to which they have been officially subjected for nearly 50 years.
That status was confirmed by the Supreme Court in its 1969 decision in Red Lion Broadcasting Co. v. FCC. The Court there upheld the constitutionality of the Fairness Doctrine, an FCC-crafted policy (abandoned decades ago) that unquestionably would have been unconstitutional if applied to, e.g., print media. The Court’s rationale? Spectrum is scarce, and more people want it than can have it, so the government can regulate it in ways not permitted with respect to other, supposedly less scarce, media.
Minority Television Project (MTP), licensee of Station KMTP-TV in San Francisco, challenged the continuing validity of that notion. But the Supremes declined to take the bait. As is customary, no reason was given.
We’ve blogged about MTP’s case before. A quick summary of the facts. Station KMTP-TV is a noncommercial station. More than a decade ago, MTP was fined $10,000 for airing advertisements (not the “underwriter announcements” that we all know and love on NCE stations). It paid the fine, but then turned around and sued the FCC in Federal District Court in San Francisco, seeking a refund. More importantly, MTP also asked for a declaratory ruling that the limitations imposed on NCE stations by the Communications Act are contrary to the First Amendment. (The Act prohibits NCE licensees from accepting any “advertising” – which includes not only conventional ads but also ads for political candidates and ads advocating particular issues.)
MTP lost in the District Court but, on appeal to the U.S. Court of Appeals for the Ninth Circuit, it managed to convince a three-judge panel that the prohibition against political/issue-oriented ads was unconstitutional. Its success was short-lived. The full Ninth Circuit, sitting en banc, reversed the panel. Eight of the judges stuck with a Red Lion-based analysis that shunted broadcasters to the back of the First Amendment bus. (For a more detailed explanation of precisely how, analytically, that happens, check out our earlier posts on the KMTP case – Spoiler alert: it involves the difference between “strict scrutiny” and “intermediate scrutiny” standards of review.)
MTP’s fundamental argument – accepted by the initial three-judge panel and also by three judges at the en banc stage – was that times have changed since 1969 and “spectrum scarcity” no longer justifies less than complete First Amendment protection for broadcasters. We now have the Internet, satellite-delivered programming (both TV and radio) and significantly improved broadcast technology. As a result, broadcast stations no longer constitute the “uniquely pervasive” media they may once have. As Judge Kozinski observed in his dissent to the en banc decision, “bottlenecks and monopolies that existed in the field of mass communications when Red Lion was decided no longer exist.” In a nutshell, at least when it comes to First Amendment-protected content, we don’t need the government to treat broadcasters differently. This isn’t to say many, perhaps most, FCC licensing rules wouldn’t survive in a post-Red Lion universe. But limits on on-air content that historically passed muster under a Red Lion analysis would not be long for this world.
Even though MTP lost at the en banc Ninth Circuit, there was cause for optimism that the Supreme Court would be willing to review the case and, possibly, overrule Red Lion. In separate opinions in the Fox I and Fox II decisions (about the FCC’s indecency policy, which is also largely dependent on Red Lion), both Justice Thomas (in 2009) and Justice Ginsberg (in 2012) indicated skepticism about what might be left of Red Lion. None of the other Justices joined them then, though, and if they got anybody else to sign on this time around, it could have been at most one other Justice (since it takes only four votes to get the Court to grant certiorari).
So Red Lion lives on, and those aiming to take it down will have to wait for another opportunity.