Concurrence to Red Lion… if I were writing it.

In this case, I concur with the majority in result, but would rather decide the case on less questionable grounds.

I concur with the majority on the issues of spectrum scarcity and licensing. It is clear that the F.C.C. must allocate frequencies if the broadcast media is to exist in the form in which we have become accustomed. The public nature of the airwaves necessitates a licensing scheme in order for the available frequencies to be allocated in a market competing for those frequencies. Furthermore, there is no compelling reason why government licensing of airwaves should be any different than its involvement in many other marketplace where resources are scarce. In fact, were it not for the failure of the private sector to divide up the broadcast spectrum, government regulation would not have been necessary. The right of any party to use the airwaves should be looked at with no more or less favor than the rights of someone to pollute a stream or river; government regulation is needed in both instances in order to allow the most people to have the most access.

In addressing the issues arising from technological advances in distribution and digital compression, the majority correctly reasoned that the mere lack of a current demand for every available frequency neither negates the possibility that those frequencies could be filled nor solves the problem of frequency allocation. Licensing is still required to prevent spectrum “overlap”, regardless of total availability. We are increasingly becoming a media-centric society; to assume that demand will never outpace supply is, in my opinion, shortsighted.

It is after this point that I disagree with the majority’s reasoning, and concur in outcome only. It seems clear that Red Lion does not have a cause of action, given the nature of its broadcast license. I find no reason why, given the F.C.C’s authority to limit spectrum use, it may not also create time limitations on the use of of the spectrums in question. Red Lion’s argument seems to imply that they have a constitutional right to 24 hour control over the content broadcast over their frequency for the duration of their license term. I find no reason to conclude that the license granted by the F.C.C. confers this privilege.

If the broadcast license granted by the F.C.C. granted a complete bundle of rights, then Red Lion would have standing because the government would be forcing them to publish a particular viewpoint. This court held, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, that the freedom of the press was bound by 2 things: a sufficient number of readers, and the journalistic integrity of its editors and publishers. Again, in Tornillo, we held that, “The choice of material to go into a newspaper… and treatment of public issues and public official–whether fair or unfair–constitute the exercise of editorial control and judgment.” I see no reason to alter our holdings in either case.

As if we were seemingly unsure of ourselves, we went on to say in Tornillo that the application of the press clause had not yet been fully explored in the context of new media. I can think of no better opportunity to address this dictum and re-affirm the principle of individual editorial autonomy and its applicability to all forms of journalism, both the forms which exist today and those which may exist in the future. A completely free press has been central to the notion of freedom of speech; to hold to the contrary would do great damage to our civic society.

What distinguishes my opinion from that of my fellow justices’ is my distaste for the positive rights they believe exist within the first amendment. The bill of rights are primarily about protecting individuals from the government action, not about guaranteeing any right to be heard or any right to access. Why are the rights of the viewers “paramount”, as the majority seems to suggest? What good are the rights of the audience if the speech they hear is tainted? The first amendment specifically speaks in the negative, “congress shall make no law abridging the freedom of speech”. Does the majority wish us to believe this actually reads, “congress shall ensure viewers can hear all points of view?” This “marketplace of ideas” the majority discusses, is merely the result of thousands of individuals speaking without fear of repercussion–hence the need for negative rights. It is not an end in itself, but a theory of how the public makes decisions. True, it is through the marketplace that society can weigh facts and make the most educated decisions, but it is not the primary objective of the first amendment to create this market. Perhaps this really a moot point, but I think it worth the effort to clarify what I believe the court’s position should be on this issue.

With these principles in mind (and, in spite of them), I would further distinguish my opinion on the grounds that Red Lion has no standing in this case. I do not agree with the majority that spectrum scarcity gives the government any right to require the suppression of editorial decisions, but neither do I agree that the paradigm used by the court to arrive at its conclusion is the most accurate. It seems clear that instead of exercising some editorial control over Red Lion’s programming, the F.C.C is merely requiring that Red Lion broadcast a public message on public time the F.C.C. has reserved for its own use. This in no way compromises Red Lion’s editorial control over stories and topics it chooses to air within the time provided it in its license. As I have stated before, congress, acting through the F.C.C., is not required to allocate frequencies in their entirety. These public broadcasts are therefore not part of Red Lion’s broadcast, despite the content similarities. The fact that this “public” content had some logical relation to the news stories is simply not relevant to the issue of whether Red Lion has the right to control content on public time.

For these reasons I respectfully concur.