KEYNOTE ADDRESS:THREE CHEERS FOR RED LION

C. EDWIN BAKER*

Thank you. It is a distinct pleasure to be back in D.C. at a great schoolto talk about a great Supreme Court decision. 1 apologize for mycomments' amounting to merely a case comment-my general view is thatmedia policy should be examined from the perspective of democratic andeconomic theory. The occasion of this conference, however, calls for somemore specific remarks about Red Lion. 1

My title "Three Cheers for Red Lion," however, requires comment. Thelast time J was in D.C., 1 was at a conference honoring Jerome Barron,~

possibly the greatest scholar in this area over the last fifty years. There, 1criticized the Faimess Doctrine, for which Red Lion is most known. as adisaster for progressive media law--as an ideologically biased, centrist,ineffectual, censorious policy." That critique leaves the question: Why thetitle of this talk, "Three Cheers for Red Lion"?'"

My claim is that Justice White's opinion in Red Lion merits great respectfor making three absolutely essential points (hence three cheers) that areregularly ignored by legal commentators and often even by the Court.Namely, Red LiO/7 merits praise, first, for announcing the correct centralconstitutional principle for media policy; second, for being fundamentally amedia and not merely a broadcast case; and, third, for properlyunderstanding and explaining the economic basis of regulation.

Preliminarily, however, a point that Red Lion has in common \vith most

* Nicholas F. (J(]llicchio Professor of Ln-\'. University of Pcnnsylv'lIlia.J. Red Lion Broad Co. v. FCC. 3<)<; L;.s 3()7 (1969)2. .·lcCL'SS!1J fhe Afediu-ll)(j7 fIJ 211()7 und Hel'ond: A SUl1jJOSill1l1 !fIJnol"ing JerIJme

.'/. !1arron's POfh-Breoking Artic/e. !nfrIJdl/cf(}/T Remurks hr fhe HOl1orahle .<.,'!ephen C.Bren'/". 7() G I<J. W;\SI' L. Rlv. ~ 19 (200X)

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M\TTIRS 195-97 (2007) (detailing a \CrSilln nrthc~c criticisms).4. Sec genero/h' C. ~dwin BakeL Turner Broadcasting.: COl1lenf-Based Regu/a/ioll lif

!)el".l(}I1S alld PreS.le.I, J 994 SL'P. Cr. Rn' ':'7 (elaborating mme fully and contcxtu31izing thethemes llJsclIsscd in this talk).

861

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great Fic~t Amendment cases merits notice. Red Lion did not apply strictscrutiny. In fact. it did not apply any annoLll1ced level of scrutiny toevaluate the government action at issue. But contrary to common modernmisreadings, the same is true of the great cases in the First Amendmentcanon: for example, Wesl Virginia Board 01 Educo[io}) v. Bwnelle,'Brandenhurg v. Ohio,1, Nell' York f'il1les' Co. \'. Sullil'ul7,7 as well as otherlandmark cases such as /'Yfimni f-/emld Publishing Co. v. To,.nil/o,K Rolh I'.

United Stoles,C) [[usder Mugozine. Inc. v. Fa/lvell,lo and more. I I [n these

cases, the Court did not-as required by scrutiny review-evaluate theimportance of the state interest supporting the regulation and then checkwhether the regulation was necessary for (or even related to) achieving thatinterest. Such an analysis would in many of the cases-~surely inBrandenburg and NeVI' York Times Co. v. Sullivan-have led to upholdingthe law and diminishing the First Amendment. Rather, the Court'sreasoning aimed to determine whether the rationale of the FirstAmendment covered the speech at issue. Depending on/)) on its answer tothis question, the Court did or did not affirm or reject the First Amendmentclaim. 12 This is precisely the style of reasoning that the Court properlyemployed in Red Lion.

Now to the three cheers. The first is for correctly identifying theproperly central constitutional principle for media law. The Court said, "itis the right of the viewers and listeners, not the right of the broadcasters,which is paramount."I~

Let us pause over this first cheer. Justice White here highlights the valueat the heart of the constitutionally proper difference between the Press andthe Speech Clauses of the First Amendment. As for speech, an individual'sfreedom of expression should be, as Brennan says, virtually "inviolate.,,14

5. 319US.624(194_~).

6. 395 U.S. 444 (196l))7. 376US254(1964).8. 418 US. 241 (19 7 4).9. 354U.S476(195 7 )

10. 485US.46(1988).II. Sec generolh' C. Edwin Baker, Harm. Libertv. and Free Speech, 70 S. CAL. L REV.

979 (1997) (developing this point further).12. When Justice Brennan eventually changed his view about whether obscenity could

be limited under the First Amendment, he also changed from subscribing to the marketplaceof ideas rationale that he invoked in Roth to a liberty and autonomy view in Paris Adult.Compare Roth, 354 U.S. at 484~85 (protecting "all ideas," even "hateful" ideas "to assureunfettered interchange of ideas," presumably as a "step to truth") (citation omitted), withParis Adult Theatre 1 v. Slaton, 413 U.S. 49, 85-86 n.9 (1973) (Brennan, J., dissenting)(recognizing an autonomy or liberty basis to receive obscenity).

13. Red Lion Broad. Co v. FCC, 395 U.S. 367, 390 (1969).14. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 585 (1980) (Brennan, l,

concurring). The often-quoted language about "the need to preserve inviolate theconstitutional rights" originated in De Junge v. Oregon, 299 U.S. 353, 365 (1937). This

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The idea of an inviolate freedom cannot apply to a corporate or institutionalentity, \vhicb provides the most common form of the- "press." Shouldc01lJorate law take one or another form by creating one or another type ofentity'> When in connict, is it the editor, journalist. or OVilwr whose speechchoice should prevail--should be inviolate? In the contexl of Tornillo, theCourt suggested it may be the editor's-but morc fundamentally, thatconclusion and Illany others about the organization, structure, and authorityof these institutions can only be determined by positive b'.\', not by asimple invocation of inviolate liberty.ls More importantly, the

constitutional role of the press is different from the Speech Clause's properrecognition that the legitimacy of a constitutional democracy depends onnot abridging individual liberty. Rather, like any institution, the pressshould be valued only instrumentally for its possible service to hUITlaninterests. It became the one business to receive constitutional protectionbecause of the ways that press freedom serves the public generally anddemocracy in particular. Thus, in Red Lion, Justice White appropriatelysays, "It is the right of the public to receive suitable access to social,politicaL esthetic, moral, and other ideas and experiences \vhich is cruciaihere. That right may \lot constitutionally be abridged either by Congress orby the FCC."'!>

Now for the second cheer. Though controversial. l believe a carefulexamination shows that Red Lion is fundamemally (l g.enera] media lawcase-(/ press case, not a broadcast case. My evidence here is vilriabie andmay be weaker, but I believe it is clear. Prominently. Justice White reliedmost heavily for the Coun's holding in Red Lion on a principle from a case(cited three times) involving newspapers, namely As.wcioted Press v.United Stotes. lt l\l Red Lion, the FCC limited the speech power of oneprivate actor, the broadcaster, in favor of other voices. Doing this isexactly \v11at Associated Press says can serve the First Amendment andshould be upheld \,vhen done. Thus, according to Justice White, "[t]he rightof free speech of a broadcaster, the user of a sound truck, or any otherindividual does not embrace a right to snuff out the free speech of others."lxAnd for this proposition, he cites identical reasoning in Associated Press.Justice White then again cites and now paraphrases Associotui Press,saying, "It is the plllvose of the First Amendment to preserve an

langu~lge is often used to distinguish between ovcrt limitations on speech (or the righr to

asscmbly) and laws thaI in somc \\'ay hurdcn or make less crjeclj\'e these rights.15. Sf'/! i1iallli Jlerald Pub!"g Co. \. Tornillo. 41X US 241. 25X (1974) ("The choicc

or material to go into a newspaper. eonstitulC[S" the c:\ercisc of l'ditorial control andjudgment")

J6 Ned !-ion. 395 U.S m39U.17. :126 LJS. 1 (1945)IX Retl Lioll. ~9) L-.S. al 3X7.

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uninhibited marketplace of ideas in which truth will ultimately prevail,rather than to countenance monopolization of that market, whether it be bythe Government itself or a private licensee."llJ Finally, he later directlyquotes ,-Issocioled Press: ,,' Freedom of the press from governmentalinterference under the First Amendment docs not sanction repression of

h f d b .. '" JOt at ree om y private II1terests. -The point is that these two cases, the first from the print arena and the

second from the broadcast arena, present the same problem: the power ofcorporate media to restrict other voices. And the Court reached the samcresult: it upheld the government policy response that favored other voices,the weaker voice, and that limited corporate mcdia control. Most importantfor the current discussion, the second case-the broadcast case-relied onalready-established analysis from a print media case for both its FirstAmendment reasoning and its holding. That is, Red Lion is, at its core, amedia law--not broadcast law-case.

Again, let us pause over this second cheer. I bel ieve these aspects showthat Red Lion represents not a secondary press law tradition properlylimited to broadcasting but is central to the proper meaning of the PressClause. What the case did so importantly was to recognize thegovernment's power to engage in structural regulation of the media. TheCourt recognized the government's authority to allocate expressiveopportunities to better serve the government's (reasonable) vision of a freeand open democratic communications order.

I challenge you to identify any Supreme COllrt precedent that limits thispower to engage in structural rcgulation of the media. Often cited is AliamiHerald PuNishing Co. v. Tornillo-but that assertion can no longer besustained. The Court there offered two theories of what was wrong withthe right-lo-reply law: that it interfercd with editorial autonomy oramounted to a penalty on-or detcrrence of-the paper's speech criticizinga candidate. The first objective is to protect editorial autonomy, the secondto protect against content-based censorship. [n Turner BroadcastingSyslelJl, file. \'. FCC,21 the must-carry rules interfered with the editorialdiscretion of the cable operators and, therefore, would be clearly invalid ifTornillo's Ilrst rationale applied. You might reasonably reject thisapplication if you deny that cable operators merit the journalistic title ofeditors. But the Court took a different route-namely, it accepted cable aspart of the press, but it read Tornillo as not protecting editorial control butonly as involving the problem of being a content-based penalty on speech

19. Id <.Il 390 (citalions omitted).20 !d at 392 (quoting Associated Press, 326 U.S. at 20).l!. 512 U.S. 622 (1994).

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criticizing candidates. 22 Thus, the Court explained,

[t]hc right-of-reply statute at issue in Tornillo . .. imposed an impermissiblecontent-based burden on newspaper speech. Because the right of access atissue in Tornillo was triggered only vihen a newspaper elected to print mattercritical of political candidates, it "exactrcd] a penalty on the basis of ...

)'

content.- J

The Court went on to say that "Tornillo . .. do[es] not control this casefor the foJlowing reasons. First, unlike the access rules struck down inthose cases, the must-carry rules are content-neutral in application. Theyare not activated by any particular message spoken by cable operators andthus exact no content-based penalty.,,2.J Thus, as limited under current law,especially by Turner, Tornillo involves impermissible censorship-·punishing content-not permissible structural regulation to favor a widerdistribution of speech opportunities.

The only tension between the results in Tornillo and Red Lion is whetherthe impermissible penalty or deterrence should be identified abstractly orempirically. Justice White in Red Lion agreed that, if facts show thedeterrence that the COl1l1 predicted in Tornillo, the Fairness Doctrine couldbe reconsidered and might be impermissible. On this empirical issue, otherdemocratic countries in Europe have apparently found that right-of-replyrequirements do not significantly impede press performance. In my view,given the business need of papers to continue to provide news and theircapacity to benefit from controversy in contrast to broadcasters, which, aslargely entertainment media, desire to avoid outsider interference withscheduling flows, the obvious prediction is the reverse of the Court's:deterrence would more likely be a problem in broadcasting than print. ButI put aside this empirical question that has little implication for structuralregulation as opposed to whether right-to-reply laws deter critical

22. The Coun actually gave multiple grounds for its distinction, including an ill­advised (bccause it is subject to technological rcevaluation) argument based on the cablesystem's bottleneck control over access to television programming. See iLl. at (i56.

23. lei. at 653 (citation omiued). The Court made the point repeatedly within theopinion. maybe out or fear that the point would not be clear. For example. about 7i)/,lli//o.lhc Court said,

We cxplained thaI. in practical cJTecl. I-'lorida's right-of-reply statute would deternC\\'spapers from speaking in unl~worable terms about political candidates: "Facedwith the penalties. . editors might well conclude that the safe course is to ,I\'oiclconlro\'Crsy. Therefore. under lhc operation of the Florida statute. political andelectoral coverage would be blunted or reduced."

Id (quoting Miamil-Ierald Publ'g Co. \. Tornillo. 418 U.S 241.257 (1974) Thc Court alsorelied on its paraphrasc of ..1ssoCiU{lfd fJrns to Justify structural regulation: "The FirstAmcndmcnt's command that governmcnt not impede the frecdom of speech docs nOidisabk thc govcrnment from taking s1eps to l'nsurc that privatc intcrl'sls not restrict. throughphysic,li control of a critlc'al pathway of communication, the free !low of information andideas" [111'11<:'1'.512 U.S. at 657 (citing .1ssoci(J/ed Prlfss. 32(i US at 20 (1945))

24. Filmer. 512 lJS at 655 (citation omittcd)

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commentary.Still, this second cheer for Red Lion is dampened slightly by what 1

consider Justice White's one unfortunate misstep. He paraphrased Jo.)'cphBurst'r'n, Inc. v. Wil.'wn,:5 a 1952 case involving motion pictures, to say:"[D]ifferences in the characteristics of new media justify differences in theFirst Amendment standards applied to them.',:h The problem is that Wl,1itedid not continue with the next sentence from Burst\'n: "But the basicprinciples of freedom of speech and the press, like the First Amendment'scommand, do not vary."n If he had added this point, he would have madeclear that, though the government in its regulatory activities can distinguishdifferent media,28 the principles-··for example, the principles involved inRed Li()n~apply to all media.:')

The third cheer for White's opinion is that he developed aneconomically sophisticated justification for regulation that, at bottom,applies to all media, rather than the economically dumb point aboutscarcity that his critics often attribute to him. When asked the basis of RedLion, the invariable reply is "scarcity"~and, given this reply, the opinionis then ridiculed, especially by economists. Most goods are scarce, theseeconomists assert, if offered for free. There are not enough BMWs tosupply demand if both the car (and now the gasoline needed to drive one)were given away free. I might even want several. Markets eliminate thisscarcity, however, by creating an approximate balance between supply anddemand at the market clearing price.

An unexamined scarcity is not, however, the story that Red Lion told.Admittedly, the decision does contain considerable language suggestingthis possible characterization--and even the Court has subsequently runwith it. But in fact the key word in the analysis was "chaos" and the storyWhite told to justify regulation was a version of the more sophisticatedimage of the tragedy of the commons30~an argument that applies equally

25. 343 U.S. 495, 503 (1952)26. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969).27. BlIrsfyn, 343 U.S. at 503.28. See, e.g., Leathers v. Medlock, 499 U.S. 439, 453 (1991) (holding that different

taxes can apply even to different entities in the same media category "unless the tax isdirected at, or presents the danger of suppressing, particular ideas").

29. Clearly, this point applies to the need to use different techniques in different mediato protect against exposure of children despite the constancy of the Butler v. Michiganprinciple that regulation on behalf of protecting children can never justify significant limitson adults' access to protected speech. Compare Butler v. Michigan, 352 U.S. 380, 383(1957) (rejecting legislation that would effectively "reduce the adult population of Michiganto reading only what is fit for children"), with FCC v. Pacifica Found., 438 U.S 726, 750n.28 (1978) (declaring that the FCC did not violate the Butler principle by baITing Carlin'sindecent language during daytime radio shows).

30. See Garrett Hardin, The Tragedy of the Commons, 62 SCIENCE 1243 (1968)(discussing how the destruction of shared resources can occur when individuals act in their

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to grazing land in the traditional account, or to the spectrum relied on bybroadcasters, or even to the office space and printing presses and woodpulp relied on by print media. Thus, when White started his historicalaccount, he wrote, "Before 1927, the allocation of frequencies was leftentirely to the private sector, and the result was chaos.,,·l1 He observed thatit was because of this "chaos" that the National Radio Conferencesrecommended adoption of a federal Imv to deal with the broadcast

31spectrum. -

What precisely is the chaos problem" White explained it in terms thatare now familiar to us as a description of the tragedy of the commons. Heobserved, "[O]nly a tiny fraction of those with resources and intelligencecan hope to communicate by radio at the same time if intelligiblecommunication is to be had ... .-,33 And he continued, "It was this fact.and the chaos which ensued from permitting anyone to use any frequencyat 'vvhatever power level he wished, which made necessary the enactment ofthe Radio Act of 1927 and the Communications Act of 1934 .... ,,3-1

Of course, this is the same problem of grazing cattle in any tragedy-of­the-commons dilemma. A solution requires government action: 35

"[W]ithout government controL the medium would be of little use becauseof the cacophony of competing voices, none of'vvhich could be clearly andpredictably heard.,,36

So \vhat is the proper response to a tragedy of the commons: Anideologically driven or simply unsophisticated economist is likely to say"private property." Wrong! What is needed is government intervention.The intervention can take various f01111S of which private property is onlyone. Public ownership combined with public administration, queuing withtime limits for each user, various sorts of rules of the road, and licensing toprivate users just begin a list of alternative devices that are sometimcs usedto handle the problem of the commons. Thus, unlike my imaginedeconomist, Justice White noted various alternatives including giving asmall time slot on a spectrum to anyone who wanted it. But some choiceamong altematives must be made. As White clearly recognized, thercought to bc policymaking discretion in making the choice.

Let us pause for a final time. Discretion is required in response to a

own self-interest).31 Rl!d Lion. 395 U.S. at 375.32 Jd at 388.33 id34 id (citation omitted).35. Lnder some circumstances, Yoluntary acceptance of custom can substitute for la\\"

to handk the problem Justice White noted that this had been tried but had nOl \\orked inrespect to broadcasling··--rather the result had been "chaos," Id.

36 Ned Lion. 395 US at 376

,I ()l//\/siR·'!II F LIII RfllLlI [hU:-1-

tragedy of the comlTions, but how should that discretion be exercised') [11

the emi, it can only properly be made on the basis of values thatgovernment should try to serve. Here again, Justice White ,vas at the tup ofhis game. Rather than referring simpiy to something like efficiency thatmight be invoked today, \Vhite saw something more was at stake- the roleof press in serving the interests of listeners and viewers, whose rights areparamount. White accepted the obvious propriety of the government'srelying on this standard in formulating its response.

Thus, we should take note of the following: First. the tragedy of thecommons applies more generally to justi fy government interventionwhether it takes the form of licenses, private property, contract. orcorporate law. That is, the government always intervenes structurally inthe media context and all media depend on these interventions. Second.Red Lion shows not only that intervention is proper, even inevitable inmany circumstances if resources arc to be usable, but Red Lion also givesthe values-serving the audiences' democratic informational and discourseneeds-that should guide these interventions in the media realm. Third, thebest intervention can hardly be determined abstractly and will inevitably becontroversial. Thus, Justice White was wise enough to recognize that thegovernment should have a choice as to the solution-any reasonable pol icychoice in allocating the means for effective communication among privateparties should be acceptable if guided by appropriate values.