The U.S. legal landscape is riddled with anachronisms, but few are as indefensible and economically nonsensical as the justifications for regulating broadcast content. This bizarre notion that radio and television broadcasters deserve fewer First Amendment protections than newspapers, websites, or cable networks is a vestige of mid-20th-century technological reasoning that has long overstayed its constitutional welcome.
The U.S. Supreme Court has a clear path to correct this historical error: it must overturn both Red Lion Broadcasting Co. v. FCC (1969) and FCC v. Pacifica Foundation (1978). As my colleague Eric Fruits has been writing about, creative destruction has largely upended the marketplace that the Court considered in those cases nearly 50-60 years ago. Overturning these outdated cases is a necessary step to restore full First Amendment rights to broadcasters and give them a chance to compete in the 21st century. Justice Clarence Thomas has already laid the groundwork in his concurrence in FCC v. Fox Television Stations (2009).
The Phantom of Scarcity: Burying Red Lion
The entire regulatory edifice for broadcasting rests on a fundamentally flawed—and now entirely obsolete—premise established in Red Lion: spectrum scarcity.
When the Court upheld the Fairness Doctrine—a requirement for broadcasters to provide opposing views when covering controversial issues—it did so by arguing that the electromagnetic spectrum was a limited public resource. Because not everyone could broadcast, the few who were granted licenses became “public trustees,” justifying content regulation that would be immediately struck down if applied to print media, as it was in Miami Herald Publishing Co. v. Tornillo (1974).
In the 1960s, this arguably made sense in a world of just a handful of television broadcast networks. Today, it’s a joke. We live in an era of digital abundance. As Eric put it, if over-the-air broadcasting technology were invented today, it “would be seen as a niche supplement, not a foundational element of the media landscape that would require its own unique and burdensome regulatory framework.”
In other words, the “scarcity” rationale collapsed with the proliferation of cable television, satellite radio, fiber optics, and, most decisively, the internet. When I can access millions of voices instantly via a phone in my pocket, arguing that the airwaves are uniquely scarce is an argument that defies technological and economic reality.
If the First Amendment’s protections are meant to adapt to new forms of communication, they must adapt by extending rights, not retracting them based on arbitrary medium distinctions. The continuing existence of the Red Lion doctrine is nothing less than a thumb pressed firmly on the scales against true competition in the marketplace of ideas.
The Indecency Anomaly: Dismantling Pacifica
If Red Lion is an economic failure, the Pacifica decision is a constitutional atrocity.
In Pacifica, the Court upheld the Federal Communications Commission’s (FCC) power to regulate “indecent” language (the famous “seven dirty words”) based on two unique characteristics of broadcast: its uniquely pervasive presence in the home and its accessibility to children. This ruling allowed the government to engage in content-based regulation—a practice subject to strict scrutiny in almost every other First Amendment context—solely because the speech traveled over a broadcast tower.
This pervasiveness rationale does not survive scrutiny. As we saw in the Jimmy Kimmel episode, it puts the FCC in the role of national censor, creating a chilling effect for broadcasters who fear ending up on the commission’s wrong side, lest they risk massive fines, losing a license, or the holding up of mergers. Crucially, the internet and cable television are equally “pervasive” and equally accessible to children, yet the FCC cannot regulate them for “indecency.” Why? Because the cable and internet systems were rightly deemed not to be subject to the scarcity rationale.
This creates an illogical and discriminatory hierarchy of speech rights depending on how the speech in question is transmitted. Print, internet, and cable all have First Amendment protection from government interference on content. But broadcast is subject to FCC review under its public-interest standard.
Justice Thomas’s Roadmap to Constitutional Sanity
The path forward was articulated with remarkable clarity by Justice Clarence Thomas in his 2009 concurrence in FCC v. Fox Television Stations.
While the majority opinion in Fox struggled with the arbitrary enforcement of indecency standards, Justice Thomas stated he was open to reconsider Red Lion and Pacifica. Thomas rightly recognized that these precedents are fundamentally unprincipled. Indeed, as he wrote, “instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts,” which led it to adopt “a legal rule that lacks any textual basis in the Constitution.” Even if it made sense at the time, “dramatic technological advances have eviscerated the factual assumptions underlying those decisions.”
His concurrence offers a legal blueprint for overturning these precedents, but he was not alone in questioning their reasoning. Justice Ruth Bader Ginsburg, citing Thomas’ earlier concurrence, also believed that the cases were wrongly decided, stating in her concurrence in a later version of the case that: “Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.”
The Supreme Court must ask itself: Do the First Amendment’s protections really depend on consumers’ ability to hypothetically access content through an antenna? The answer—informed by law, economics, and common sense—is an unequivocal no. The Red Lion and Pacifica decisions are truly outliers in allowing government control over private speech that we would never tolerate elsewhere. By striking them down, the Court would not be inventing new rights; it would simply be restoring full and equal First Amendment protection to all speakers, regardless of the transmission medium they choose.
Conclusion
It’s long past time to stop governing broadcast media based on the outdated technological standards of the mid-20th century. With the FCC considering topics like media-ownership rules, it is very important to recognize how outdated regulations restrict broadcasters’ ability to compete today. Broadcasters should be just as protected as other forms of media from government regulation of content. Let the market, and the Constitution, prevail.
