By Eugene Volokh
From a CNN op-ed by Fonda, Steinem, and Robin Morgan:
Ironically, the misogyny Rush Limbaugh spewed for three days over Sandra Fluke was not much worse than his regular broadcast of sexist, racist and homophobic hate speech ….
If Clear Channel won’t clean up its airways, then surely it’s time for the public to ask the FCC a basic question: Are the stations carrying Limbaugh’s show in fact using their licenses “in the public interest?”
Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license. In keeping with this obligation, individual radio listeners may complain to the FCC that Limbaugh’s radio station (and those syndicating his show) are not acting in the public interest or serving their respective communities of license by permitting such dehumanizing speech.
The FCC takes such complaints into consideration when stations file for license renewal. For local listeners near a station that carries Limbaugh’s show, there is plenty of evidence to bring to the FCC that their station isn’t carrying out its public interest obligation. Complaints can be registered under the broadcast category of the FCC website: http://www.fcc.gov/complaints
This isn’t political. While we disagree with Limbaugh’s politics, what’s at stake is the fallout of a society tolerating toxic, hate-inciting speech. For 20 years, Limbaugh has hidden behind the First Amendment, or else claimed he’s really “doing humor” or “entertainment.” He is indeed constitutionally entitled to his opinions, but he is not constitutionally entitled to the people’s airways.
Of course it is “political” — they’re urging the government to suppress Limbaugh’s speech based on the ideology that it expresses. And this is precisely what the Supreme Court has rightly said is impermissible. In FCC v. Pacifica Foundation (1978), the Court did uphold restrictions on vulgar words on the radio — a question that’s now being reconsidered by the Court, in FCC v. Fox Television Stations, Inc. — but in the process the plurality said:
[I]f it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.
Justice Brennan’s dissent, joined by Justice Marshall, would have been even more speech-protective; and none of the other concurring or dissenting justices cast any doubt on the plurality’s judgment, which indeed represents a basic First Amendment principle — the government may not suppress speech based on its viewpoint, even if the speech is seen as using “government resource[s]” (see, e.g., Rosenberger v. Rector(1995)). That is something that applies to all viewpoints, whether feminist or sexist, pro-American or anti-American, or whatever else.
Likewise, FCC v. League of Women Voters (1984) held that even broadcast regulation must be closely scrutinized to prevent, at least, viewpoint discrimination and often even viewpoint-neutral content discrimination:
Since, as we [have] observed …, “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic,” we must be particularly wary in assessing § 399 to determine whether it reflects an impermissible attempt “to allow a government [to] control … the search for political truth.”
And that’s exactly the control that Fonda, Steinem, and Morgan want the government to exercise.