Content Regulation and the First Amendment to the United States Constitution
The courts have rarely treated content-based regulation of journalism with any sympathy. In Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish.
Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.1
In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, (1978), the Supreme Court upheld the Federal Communications Commission’s authority to restrict the use of “indecent” material in broadcasting.
Lynn Gailey. 20 March 2012.