The fact that the First Amendment protections extend to radio as well as the press was made clear by a 1948 Supreme Court decision, United States v Paramount Pictures, which stated, "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." In order to best understand what free expression rights are due to radio, one needs to examine the rationale for regulating radio. Courts and legal scholars have provided a variety of arguments for regulation that fit into four general categories: scarcity of broadcast frequencies, the broadcast spectrum as a public resource, the need to alleviate interference, and the pervasiveness and power of the broadcast media.

Scarcity

In a 1984 decision, the Supreme Court stated, "The fundamental distinguishing characteristic of the new medium of broadcasting that, in our view, has required some adjustment in First Amendment analysis is that broadcast frequencies are a scarce resource that must be portioned out among applicants." This scarcity rationale has undergone a number of attacks in recent years with the proliferation of media, but in fact it is still considered a valid regulatory rationale. Although the number of radio stations (as well as the number of most other media outlets) has increased, courts continue to accept a scarcity rationale. The reason for this is that scarcity does not depend on the number of existing media outlets but rather on the determination of whether a new applicant stands a good chance of entry to the market. A vast number of existing media outlets implies that diversity exists, not that scarcity has been eliminated. If new applicants want to obtain station licenses and are unable to do so, that implies scarcity. Scarcity is a function of the number of people desiring a station to the number of stations available. As long as applicants exceed available frequencies, scarcity exists. As the Supreme Court noted in its Red Lion decision in 1969, "When there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." This is why there will never be scarcity for newspaper publishers, no matter how many newspapers are published in the United States. In theory, at least, any American can start a newspaper (at least there is no legal restriction). The same is not true for starting a radio station.

In 1943 the Supreme Court supported the notion that scarcity entitled the Federal Communications Commission (FCC) to make judgments about who would best serve the public interest. In National Broadcasting Company v United States, the Court rejected the argument that chain broadcasting rules were a violation of the First Amendment:

If that be so, it would follow that every person whose application for a license to operate a station is denied by the Commission is thereby denied his constitutional right of free speech. Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio is not inherently available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. Because it cannot be used by all, some who wish to use it must be denied. But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views, or upon any other capricious basis.... The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its authority over commerce. The standard it provided for the licensing of stations was the "public interest, convenience, or necessity." Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.

Public Resource

In 1962 President John F. Kennedy referred to the broadcast spectrum as a "critical natural resource." The federal government typically regulates the use of natural resources to ensure that they are not damaged and that their use is in the public interest. Viewing the spectrum as a public resource results in a philosophy that views users of the public resource as public trustees, who as such can be expected to act according to the dictates of those allowing them to use the resource. The government could have adopted other models for rationing spectrum, but it didn't. The assumption is that those who use the public resource have some degree of public service obligation.

A good example of this requirement is the demand, found in Section 312 of the Communications Act, that broadcasters provide reasonable access to candidates for federal office. This affirmative obligation on broadcasters, which would be unconstitutional if applied to print media, can only be justified under a public-resource rationale. In the 1981 Supreme Court Decision Columbia Broadcasting System v Federal Communications Commission, the Court wrote that such a rule "represents an effort by Congress to assure that an important resource-the airwaves-will be used in the public interest. [The rule] properly balances the First Amendment rights of federal candidates, the public, and broadcasters."

Interference

Undoubtedly the oldest of the regulatory rationales is the assertion that the government must regulate the broadcast spectrum in order to prevent interference. This was provided as rationale for the passage of the Radio Acts in 1912 and 1927. Failure to limit interference would result in a "cacophony" in which no one would be heard. Thus, the government exercises its authority to limit the free speech of some so that others might be heard. Some might contend that interference and scarcity are actually the same rationale, when in fact they are different. Their connection in broadcast contexts is understandable, because the spectrum is subject to both scarcity and interference. It is possible, however, to have interference when there is no physical scarcity. It is interesting to note that the Supreme Court's 1969 Red Lion decision quoted a 1945 print media case involving the Associated Press when it stated "the right of free speech ... does not embrace a right to snuff out the free speech of others." Clearly, there can be interference without scarcity. In Red Lion, the Court stated:

When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is incomparably greater than the range of human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology.

The Supreme Court justified broadcast regulation, in part at least, because of broadcasting's unique physical characteristics.

Pervasiveness and Power

Perhaps most controversial of all the rationales, this claim asserts that broadcast media should be regulated because of the media's unique role in the lives of Americans. In the famous Pacifica case (dealing with George Carlin's “Seven Dirty Words” monologue), the Supreme Court stated that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans." Yet no one would attempt to assert that a small-town radio station has more pervasiveness and power than, say, The New York Times. Perhaps a more appropriate term for the Court to have used would have been invasive rather than pervasive. The Court seemed to be influenced by the fact that radio transmissions come into the privacy of one's home and automobile and are instantly available to children, unlike newspapers, which wait outside our homes for us to collect them and are unreadable by children still too young to read. In Columbia Broadcasting System v Democratic National Committee in 1973, the Court stated a concern dating back to the 1920s that radio's audience is in a sense "captive" because it cannot simply ignore the messages sent by broadcasters.

It is this rationale that supports limits on broadcast indecency. FCC rules that restrict the use of indecent language during certain hours of the broadcast day (6 A.M. to 10 P.M.) are based on the premise that the audience will consist of a number of minors who should not be subjected to indecent language. Allowing the restriction of indecent material on the air is a recognition of broadcasting's pervasive nature.

First Amendment Protections

In spite of the regulations that do exist, radio is not without First Amendment rights. Section 326 of the Communications Act specifically states:

Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

Although some might contend that the Section 326 provision is rendered either superfluous by the First Amendment or invalid by rules such as those limiting indecency, the courts have continued to support the general principle that the FCC may not censor broadcasts.

Radio stations also have the right to decide who uses their facilities. The Supreme Court has unequivocally stated that the need to serve the public interest does not require that broadcasters provide access for individuals or organizations. Those who would like to present their positions on public issues have ample opportunity to do so without a government requirement that stations afford them airtime.

The Supreme Court has suggested that the balance between the First Amendment rights of broadcasters and the need for government regulation is not static and that changing conditions might warrant a change in the balance between the two. In the 1973 decision Columbia Broadcasting System v Democratic National Committee, the Court stated, "the history of the Communications Act and the activities of the Commission over a period of 40 years reflect a continuing search for means to achieve reasonable regulation compatible with the First Amendment rights of the public and the licensees." Eleven years later, in Federal Communications Commission v League of Women Voters, the Supreme Court made it even more clear that regulatory rationales were open to review and revision. In two rather significant footnotes, the Court signaled its willingness to accept a regulatory scheme that was less demanding of broadcasters. In addressing the scarcity rationale, the Court wrote, "We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required" (emphasis added). Although the Court was not prepared to lay the fairness doctrine or the scarcity rationale to rest, it opened the door for others to do so. After a series of legal actions, the FCC did in fact eliminate the fairness doctrine.

The entire concept of treating broadcast differently from print media has been challenged for some time, but the practice continues. Modifications have been made, and radio has significantly fewer regulations today than it had prior to the deregulation movement that began in the 1970s. Nonetheless, some would assert that the changing nature of mass media will make it more difficult to have different regulatory schemes based on modes of transmission. With media converging as they are, will regulatory policies that treat media differently based on modes of transmission be able to survive? In an era in which both newspaper and radio messages can reach their audience via the internet, should one be regulated differently from the other? These are questions that have been posed for decades, yet our regulatory policy remains essentially unchanged. Broadcast media are subject to regulation based on the four regulatory rationales stated above, while the print media are largely unregulated. The amount of regulation that will be tolerated is subject to the balancing engaged in by the Supreme Court, but radio (along with television) continues to be subject to regulation.