American Broadcasting and the First Amendment by Lucas A. Powe Jr. (University of California: $22.50; 312 pages)
The central legal difference between newspapers on the one hand and radio and television stations on the other is that radio and television stations are licensed by the government.
No matter what a newspaper does, the government cannot take away its presses. But a radio or television station that offends the government can be silenced.
Broadcasting is licensed, and licensing always means regulation, argues Lucas A. Powe Jr. in this important and persuasive book, "American Broadcasting and the First Amendment." Government regulation of the country's major source of news is a violation of the First Amendment, he says, and should not be allowed.
A Simple Thesis
Powe's thesis is simple: There is no difference between newspapers and radio and television stations, which should receive the same free-speech protection that the printed press enjoys. The country is ill-served by a regulated broadcast industry, he says.
The book, which is powerfully written and argued, is a call for an end to licensing of broadcasting and for extending full First Amendment rights traditionally reserved for print to radio and television stations, cable systems, computer communications and all yet-undreamed-of new technologies.
Powe would do away with licensing, the equal-time provision, the Fairness Doctrine and all other government interference with broadcast speech. If freedom of the press works well for print--and it does--freedom of speech should be the rule on the airwaves.
The law of broadcasting over the last six decades has been based on the argument of scarcity: Unlike presses, whose supply is unlimited, the broadcast spectrum is in short supply. This argument says that every man, woman and child in America could own a printing press if he wants one, but not everyone could own a radio station.
Cute . . . but Not True
This argument is cute, but it is not true. Newspapers are just as scarce as broadcast stations. To be sure, the scarcity in newspapers is economic, while the scarcity in broadcasting is technological, but the notion that anyone can start a newspaper and make a go of it is a fairy tale. All of the economics of newspapering work against new entrants into a market.
Powe argues convincingly that the scarcity argument is a mistake, a serious mistake, he says, because it leads to the licensing of the broadcast press, which is inimical to the proper functioning of democratic government.
He vividly recalls the overt and undisguised threats to broadcasters by the Nixon Administration and argues that this was only a degree of difference, not of kind, from what administrations generally do. "Licensing will always be used to further impermissible agendas," Powe writes. "If we allow licensing, the licensing body is likely to condemn to silence that which it fears, hates or cannot understand."
Powe would allocate the broadcast spectrum by auction, and, he argues, the public interest would be much better served all around. There ensues a long free-market discussion that may or may not be accurate but is not crucial to the legal analysis. Powe is a law professor at the University of Texas, whose faculty includes many people of this economic frame of mind.
The interesting part of the legal discussion is that it could come out in two different ways. Powe's central idea is that the law has been wrong in treating newspapers and broadcast stations differently and that they should be treated alike.
The present situation is just the reverse. Newspapers have full First Amendment protection and broadcast stations do not. Under Miami Herald vs. Tornillo, which was decided by the U.S. Supreme Court in 1974, the government cannot compel a right of access from a private newspaper publisher. But under Red Lion Broadcasting vs. FCC (1969), the government can require a radio station to give the target of an attack the time to reply.
If we agree with Powe that newspapers and broadcast stations should be treated alike, the next question is whether Tornillo should be extended to radio and television stations or Red Lion should be extended to newspapers.
Powe argues unflinchingingly that the public interest is served by extending Tornillo to broadcasting. Full First Amendment rights should be granted to everyone, he says. But one might argue that Red Lion should be controlling and that newspapers should be required to give a right of access at least to people who have been attacked. This argument is based on the notion that the "marketplace of ideas" cannot function properly if not all ideas can get into the marketplace.
The problem is that the only way to enforce a right of access is through government interference with what a private publisher publishes. And government interference with the press--even in a seemingly innocuous way and for a high-minded purpose--is a bad idea.
Those in power have enough power, but they cannot restrain themselves from trying for more. They would love nothing more than to have a hand in deciding what goes into newspapers. The record in broadcasting, as Powe shows, is that the government has abused and continues to abuse its licensing power in that arena for its own political ends. All efforts to extend this control to the printed word should be resisted.
Powe's book is an effort to straighten out the law of broadcasting so that the broadcast press is as unfettered as the printed press is. His excellent argument is matched by a superb writing style that is as compelling as it is clear.
If the legal system affords reason the importance that it claims to, this book could change the course of law, broadcasting and the press.