_{In certain respects, however, governmental regulation does implicate First Amendment values to a great degree; insistence that broadcasters afford persons attacked on the air an opportunity to reply and that they afford a right to reply from opposing points of view when they editorialize on the air was unanimously found to be constitutional. 48 In Red Lion, Justice White explained that differences in the characteristics of various media justify differences in First Amendment standards applied to them. 49 Thus, while there is a protected right of everyone to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee ''conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.'' Further, said Justice White, ''[b]ecause of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.'' 50 The broadcasters had argued that if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice White thought this possibility ''at best speculative,'' but if it should materialize ''the Commission is not powerless to insist that they give adequate and fair attention to public issues.'' 51}  

_{In Columbia Broadcasting System v. Democratic National Committee, 52 the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court's multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC, 53 the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress' power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.}

_{In FCC v. League of Women Voters, 54 the Court took the same general approach to governmental regulation of public broadcast ing, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion. ''[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. . . . [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest.'' 55 However, the earlier cases were distinguished. ''[I]n sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, Sec. 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.'' 56 The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes--protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming ''vehicles for governmental propagandizing,'' and also keeping the stations ''from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints.'' 57 Expression of editorial opinion was described as a ''form of speech . . . that lies at the heart of First Amendment protection,'' 58 and the ban was said to be ''defined solely on the basis of . . . content,'' the assumption being that editorial speech is speech directed at ''controversial issues of public importance.'' 59 Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government's purposes.}

_{Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated ''barnyard'' words, considered ''indecent'' but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities. 60 ''First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . Second, broadcasting is uniquely accessible to children, even those too young to read. . . . The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting.'' 61 The purport of the Court's new theory is hard to divine; while its potential is broad, the Court emphasized the contextual ''narrowness'' of its holding, which ''requires consideration of a host of variables.'' 62 Time of day of broadcast, the likely audience, the differences between radio, television, and perhaps closed- circuit transmissions were all relevant in the Court's view. It may be, then, that the case will be limited in the future to its particular facts; yet, the pronunciation of a new theory sets in motion a tendency the application of which may not be so easily cabined.}

  _{Governmentally Compelled Right of Reply to Newspapers .--However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper. 64 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, while desirable, ''is not mandated by the Constitution,'' while freedom is. The compulsion exerted by government on a newspaper to print that which it would not otherwise print, ''a compulsion to publish that which 'reason tells them should not be published,''' runs afoul of the free press clause. 65}  

  _{Regulation of Cable Television .--The Court has recognized that cable television ''implicates First Amendment interests,'' since a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering. Supp.50 Moreover, ''settled principles of . . . First Amendment jurisprudence'' govern review of cable regulation; cable is not limited by ''scarce'' broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting. Supp.51 Cable does, however, have unique characteristics that justify regulations that single out cable for special treatment. Supp.52 The Court in Turner Broadcasting System v. FCC Supp.53 upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these ''must-carry'' requirements ''distinguish between speakers in the television programming market,'' they do so based on the manner of transmission and not on the content the messages conveyed, and hence are ''content neutral.'' Supp.54 The regulations could therefore be measured by the ''intermediate level of scrutiny'' set forth in United States v. O'Brien. Supp.55 Two years later, however, a splintered Court could not agree on what standard of review to apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area Educational Telecommunications Consortium v. FCC, Supp.56 found it unnecessary to determine whether strict scrutiny or some lesser standard applies, since the restriction was deemed invalid under any of the alternative tests. There was no opinion of the Court on the other two holdings in the case, Supp.57 and a plurality Supp.58 rejected assertions that public forum analysis, Supp.59 or a rule giving cable operators' editorial rights ''general primacy'' over the rights of programmers and viewers, Supp.60 should govern.}

Thanks for the invitation, Brother.