J385: Communication Law Home Page

Broadcasting: The First Amendment Question

NBC V U.S. (1943)

"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. "


"[W]e see the government controlling broadcast communication because of the paramount right of the viewers and listeners to this limited medium mandates that it is not monopolized by a single point of view...

There is nothing in the First Amendment which prevents the government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would, otherwise, by necessity, be barred from the airwaves."


"We have long recognized that each medium of expression presents special First Amendment problems...[T]he broadcast medium have established a uniquely pervasive presence in the lives of all Americans...[It] is uniquely accessible to children, even those too young to read."

  • Physical scarcity of the public's airwaves

  • The paramount right of the audience to receive information
  • Broadcasters are public trustees
  • The public has a right to a diversity of viewpoints
  • Broadcasting is a powerful, pervasive medium

Cable Television: Regulation of Content

Home Box Office v. Wilkinson, 531 F. Supp. 987 (1982);

Jones v. Wilkinson, 800 F. 2d 989 (1986), aff'd 480 U.S. 926 (1987)

Court struck down government efforts to bar distribution of "indecent" programming on cable systems and limited power of cable systems to censor programming.


The U.S. Supreme Court held that a section of the Cable Television Consumer Protection Act of 1992 requiring cable systems operators to block "indecent"content on leased-access cable channels unless a viewer requested it, and a section encouraging cable operators to prohibit indecent programming on public-access channels violated the First Amendment; but upheld a section encouraging cable operators to prohibit indecent programming on leased-access channels.

U.S v. Playboy Entertainment Group, 120 S. Ct. 1878 (2000)

Court applied least restrictive alternative analysis to find that signal blocking requirements in Section 505 of Communication Decency Act violated cable operators First Amendment rights.

TURNER BROADCASTING SYSTEM, INC. v. FCC, 114 S.Ct. 2445 (1994) [Turner I]

The court sustained the "must carry" provisions of the Cable Television Consumer Protection Act of 1992 holding that they were content-neutral and that under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367, they are sufficiently tailored to serve the important governmental interest in the preservation of local broadcasting.

Turner Broadcasting System v. FCC, 117 S.Ct. 1174 (1997) {Turner II]

The protection of broadcast television, diversity of programming, and the maintenance of fair competition in the broadcast marketplace provided sufficient government interest to justify the must carry rules.




Internet: Regulation of Content

Reno v. ACLU



School of Journalism and Communication