This essay is excerpted from Media Law Handbook, published by the Bureau of International Information Programs.
In many jurisdictions, the government’s power to regulate content differs between print and broadcast media. In the United States, the First Amendment is held to prohibit any government licensing of newspapers and magazines, but the Federal Communications Commission (FCC) has exclusive authority to license use of the electromagnetic spectrum, which is regarded as a scarce public resource. As the Supreme Court observed in 1969:
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. … It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.
U.S. law authorizes FCC control over some aspects of broadcast station ownership. It may prohibit the concentration of many outlets in the hands of a single entity or limit cross-ownership, where one company controls multiple media platforms in a single market. Nevertheless, the FCC’s jurisdiction over broadcasters’ content decisions is subject to the First Amendment, and in recent years has been limited primarily to regulating indecency and to requiring broadcasters to provide equal opportunities for opposing candidates for public office to appear on the airwaves during the period immediately preceding an election.
The fairness doctrine, which required broadcast licensees to report on controversial issues of public importance in their communities and to provide responsible representatives of opposing views a reasonable opportunity to reply, was repealed by the FCC in 1987. At that time, the commission concluded that because of the explosion of new media outlets, the doctrine was no longer necessary to serve the public interest in receiving “diverse and antagonistic sources of information.” The commission added that:
The intrusion by government into the content of programming occasioned by the enforcement of doctrine unnecessarily restricts the journalistic freedom of broadcasters … and actually inhibits the presentation of controversial issues of public importance to the detriment of the public and in degradation of the editorial prerogatives of broadcast journalists.
Taxation, too, presents issues. Tax laws that apply to all for-profit corporations are generally acceptable, while those singling out the news media for special obligations often are deemed unconstitutional prior restraints on speech. By the same token, restrictions on the international circulation of news media products violate both Article 10 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights, which guarantee the free flow of information and ideas “regardless of frontiers.”
An extensive discussion of licensing and regulatory schemes is beyond the scope of this book. In general, it is legitimate to require news organizations to abide by corporate laws and regulations of general applicability (such as registering the names and addresses of those legally responsible for the organization’s operations). Any government regulation of media operations or content decisions should be transparent; subject to public scrutiny, participation, and oversight; and no more extensive than necessary to promote identified public interests.