Noncommercial Broadcasting and the First Amendment

Since 1938, the FCC has reserved a portion of the broadcast spectrum for noncommercial educational (“NCE”) broadcasting. Holders of NCE broadcast licenses are prohibited from airing paid promotional content. By prohibiting licensed NCE broadcasters from airing paid promotional content, the US government has long imposed on such broadcasters a content-based restriction on speech. Today, content-based restrictions on speech generally are presumed unconstitutional under the First Amendment. During the twentieth century, however, First Amendment doctrine contained two important exceptions that precluded the application of a presumption of unconstitutionality to the FCC’s noncommercial broadcasting rules. First, because of special physical and legal characteristics of broadcast media, broadcasters generally were not considered to enjoy the same First Amendment protections afforded to speakers in other media. Second, across all media (including broadcasting), until the 1970s commercial advertising was not considered to be a form of speech protected by the First Amendment at all. For both reasons, the FCC’s noncommercial broadcasting rules have long been thought not to raise serious constitutional difficulties. Over time, however, the twin doctrinal bases for exempting the FCC’s noncommercial broadcasting rules from First Amendment scrutiny both have eroded. Beginning in the 1970s, the US Supreme Court has extended an increasingly robust set of First Amendment protections to “commercial speech.” Today, contemporary “commercial speech” doctrine continues to allow the government a strong hand to protect consumers against false or misleading commercial advertising, but otherwise affords essentially full First Amendment protection to truthful and non-misleading commercial advertising. Similarly, beginning in the 1980s, the US Supreme Court began affording an increasing level of First Amendment protection to broadcasters. Today, contemporary “broadcast speech doctrine” continues to allow the government a strong hand in policing the public airwaves against broadcast “indecency,” but in other respects affords essentially full First Amendment protection to broadcasters. Accordingly, the contemporary contours of the “commercial speech” and “broadcast speech” doctrines no longer provide bases for exempting the FCC’s content-based noncommercial broadcasting rules from the ordinary application of “strict scrutiny” analysis under the First Amendment. By facilitating the development of unique educational programming options free from market pressures, noncommercial broadcasting continues to benefit society. To preserve these benefits, First Amendment doctrine should be modified to recognize a concept of “noncommercial zones,” under which it should generally be permissible for the government to bar “commercial speech” from certain limited fora, so long as reasonable alternative opportunities remain available to commercial speakers to reach their intended audiences. Such a modification to contemporary “commercial speech” doctrine would provide a framework in which the FCC could continue to reserve some spectrum for noncommercial broadcasting. However, this approach would not rely on any artificial and archaic distinctions between “broadcast speech” and speech in non-broadcast media. Nor would it reinstate intrusive government regulation of the content of truthful commercial advertising transmitted through commercial media.