Chapter X

Chapter X

Last updated : 22/01/01

CHAPTER X

GOVERNMENT REGULATION OF THE MEDIA

A. THE REGULATORY FRAMEWORK X-2

Royal Commission on Newspapers (Kent Commission)1981

(Chapter 2--The Public Trust (extracts)) X-2

A Statement of Principles for Canadian Daily Newspapers X-9

Broadcasting Act, R.S.C. 1985, c. B-9 (extracts) X-11

Law Reform Commission of Canada--CRTC Study (extracts) X-15

Royal Commission on Newspapers (Kent Commission)1981

(Chapter 14--Recommendations (extracts)) X-20

New Brunswick Broadcasting Co. v. C.R.T.C. X-22

B. RATIONALES FOR REGULATION X-26

Spectrum Scarcity

Red Lion Broadcasting Co. v. F.C.C. X-26

Public Property

Re CFRB and Attorney General of Canada et al. X-33

Culture/National Unity

Report of the Task Force on Broadcasting Policy (1986) X-36

Privacy

Federal Communications Commission v. Pacifica Foundation X-38

C. CONTENT REGULATION X-45

National Indian Brotherhood v. Juneau X-45

Les Entreprises de Radiodiffusion de la Capitale Inc. (CHIRC Quebec) X-48

D. ACCESS TO THE MEDIA X-56

Trieger v. Canadian Broadcasting Corp. X-56

Royal Commission on Electoral Reform and Party Financing

(Lortie Commission) X-59

Miami Herald Publishing Co. v. Tornillo X-63

A. THE REGULATORY FRAMEWORK

Royal Commission on Newspapers (Kent Commission) 1981

(Chapter 2 - The Public Trust (extracts))

It is generally agreed that the press has a responsibility to the public although there is little agreement on how to define it and even less on how to put it into practice. The existence of such a responsibility is, however, the cornerstone of the Commission. Without social responsibilities, the press would be but a business like others and the market its only law. There would be no special reason for the prime representative of the citizen, the State, to become involved. But what exactly is the responsibility of the press? On what philosophical and moral principles is it founded? On what historical traditions; what ground of law? What do owners, publishers, editors, reporters, and readers think and say about it? Here we examine all that constitutes the motivating force and moral framework of journalism.

Without going back to Socrates, who interviewed Athenians to discover the truth, it can be affirmed that journalism has as its philosophical ideal the quest for what is true and right. But it is difficult to turn this into a yardstick to measure the performance of the media. For a simple reason: the truth is as diverse as mankind. Most often, it depends on power and ideology. It is not surprising that the dignitaries of Athens condemned Socrates to drink hemlock. His search for truth threatened their truth; that is, their power. It is not surprising either that when printing was invented in the 15th century, it was immediately monopolized by the Church, whose power in the Middle Ages was practically without limit. The first printed books and news sheets thus fell under the imprimatur of the princes of the Church and monarchs who ruled by divine right. They imposed their absolute truth on everyone, and those daring enough to stray from it went to moulder in dungeons dark and foul. The unprecedented intellectual and social ferment of Elizabethan England was manifested in a profusion of printed texts of every sort. As a critic of the time put it, "Scarce a cat can look out of a gutter, but starts a half-penny chronicler." And many were those who came to repent of their writings in the sinister Tower of London.

Truth, in those days, was the prerogative of a few, mitred or crowned heads, and it necessarily flowed from on high. Church and State could do no wrong; to criticize either was s serious offence, indeed a crime. This authoritarianism prevailed everywhere in the West in the centuries that followed the invention of printing, and, in one form or another, it prevails in most countries even today.

Journalism was able to develop its potential only when this authoritarian yoke was shaken off under the combined pressure of the rise of parliamentary supremacy in England and the widespread intellectual emancipation in the Age of Enlightenment. Out of these struggles came the American and French revolutions and above all the modern notion of democracy. The human being was henceforth seen as a rational being, capable of distinguishing the true from the false, and for whom freedom was the greatest good. The quest for truth became everybody's business, and the press from that moment on had an indispensable role to play. It was no longer to be an instrument of governments, but a means of exposing facts and arguments that would allow people to judge governments. Thus, it was essential that the greatest number of voices be heard. The clash of opinions struck flashes of light.

This libertarian concept gave rise to the prodigious development of the press in the 19th century when even the humblest printer became a gazetteer. But industrial development and the rise of the mass media put an end to the proliferation of papers for every viewpoint. Because of the large amounts of capital required to put out a newspaper, the press became concentrated in the hands of big business. Diversity of opinion was placed in jeopardy. Freedom of the press ultimately came to depend on an increasingly restricted ability to publish or be published. As in old authoritarian days, the definition of truth once again risked becoming the prerogative of a few, now the few who had the power of money. It was to ward off this danger that the notion of the social responsibility of the media was born.

Just as it was necessary at first to keep the press out of the clutches of the State, so was it necessary in the age of mass communications to protect it from the abuses of the industrial plutocracy. The Hutchins Commission on the Freedom of the Press laid down in the United States in 1947 the concept of the social responsibility of the media and its corollary, the public's right to information. This new notion mitigates the shortcomings in the libertarian model. It assigns to the media a social obligation, all the greater if they enjoy a monopoly and the public is thus at the mercy of the information they provide. In Britain in 1949, the first Royal Commission on the Press was inspired by the same principles to advocate the establishment of a press council which would keep an eye on the media to see if they fulfilled their duty and provided complete and honest information. The idea of social responsibility was also gaining ground in Canada. The legal principle had been recognized by the Supreme Court as early as 1938. But it was the social pressures of the 1960's that led to concrete action, such as the Davey Committee and the creation of press councils. The Davey Report made a notable contribution by assigning a precise role to the press. It was to prepare society for change so that it might avoid "future shock". This new notion took on particular significance and intensity in Quebec because of specific historical and social circumstances.

Visiting North America in the last century, Alexis de Toqueville remarked that American newspapers were three-quarters advertising and the rest mainly news. Opinion and debate had little place, in contrast to French papers which were filled with political discussion. These traits illustrate in broad lines the difference between the American and European tradition. English-speaking Canadians have followed the former, while French-speaking Canadians have been more inclined toward the latter. Even if anglophones, like francophones, had to wrest freedom of the press form an autocratic colonial government - one thinks of Howe being hauled before the courts in Nova Scotia, of Mackenzie's presses being thrown into the river, of Bedard and Blanchet being put in prison in Lower Canada - even if the tradition of partisan papers flourished on both sides, the English-language press very early staked its fortunes on advertising and the support of business, while its French-language counterpart founded itself on the support of elites, lay and clerical, whence its ardor in defending the faith and the language of a threatened people. On the one hand, then, the primacy of commerce, the ideology of economic progress of which politics was only an instrument; on the other, the primacy of spiritual and historical transcendence.

French-language Canadian journalism had a mission from the start: to save the race, as used to be said, and this sacred duty prompted a certain disdain for mere "hard facts", and a strong inclination toward analysis, patriotic dissertations, and preaching. The pantheon of French-language journalism in Canada is peopled overwhelmingly by pamphleteers and editorialists. The ordinary reporter has no place. In short, in a society guided intellectually and morally by a newspaper called Le Devoir (Duty), the notion of social responsibility found particularly fertile ground, and this is why it is more vigorously asserted there than elsewhere. We shall see examples throughout this report.

Within the general concepts that we have just mentioned, the press in Canada follows six distinct traditions, as Donald R. Gordon has written. First, a tradition of free enterprise, which makes it an integral part of the capitalist market; a tradition of service toward the reader, the local community, and the nation; a tradition of expressing ideas and opinions on public events and personalities; a tradition of variety in news and commentary in order to attract and interest as many readers as possible; a tradition of advertising, considered not only as a source of revenue, but also as public service; and, finally, a tradition of conservatism, which Gordon describes as follows:

Because of their relatively great age, their close association with the established authorities of business and the state, their own considerable investment in plant and equipment, and their long experience with the need for thought and moderation in making changes, the press frequently tends to view the agitations, whims and fancies of the moment with great care and sensible suspicion.

It is within this long-established and rarely questioned framework that the journalist has to work in searching out and reporting the truth. For this is the profession's primary responsibility, the ideal, which remains unchanged across eras and ideologies. The former publisher of the Vancouver Sun, Stuart Keate, summed it up this way:

Any publisher, editor or reporter worth his salt recognizes that he has only one basic duty to perform: to dig for the truth; to write it in language people can understand; and to resist all impediments to its publication.

The tradition inherited from Europe, the United States, and early colonial times would have journalists justify freedom of the press not only by treating events and persons with fairness and impartiality, but also by considering the welfare of the community and of humanity in general in a spirit devoid of cynicism. This assigns to the press a Platonic ideal, rarely attainable, but ever a goal for editors, staff, and readers alike.

In fact, in everyday life, the journalist often must refer to the commonly accepted ethical code to answer two questions: first, "Is what I am analyzing, criticizing, or reporting of some interest to the community?" The second concerns fairness: "As a journalist, am I dealing fairly with my subject and my readers? That is, am I covering all the important aspects of the questions, and am I taking them all into full consideration?" The notion of fairness has replaced objectivity which was discredited in the era of McCarthyism and battered throughout the 1960's by protest groups in the United States and elsewhere who saw in it a pretext for not taking a position, for maintaining a hypocritical neutrality that camouflaged complicity with those in power. The dispassionate journalism of the 1950's was followed by interpretative journalism and then by advocacy journalism. Today, journalists seek a more balanced position by treating people and events as fairly as possible.

Some newspapers and professional associations have already established codes of ethics to set out in more detail the responsibilities of the press. The Statement of Principles drawn up by the Canadian Daily Newspaper Publishers Association (CDNPA) is typical in this regard. Based essentially on the libertarian concept of the press, the document sets out the newspaper's responsibilities to its readers, shareholders, employees, and advertisers; it lays down principles of accuracy and fairness in the treatment of news and in commentary; it affirms the necessity of a newspaper's independence if it is to avoid conflict of interest; it cites the right of privacy in daily life and, finally, the moral obligation of openness to different opinions, minority as well as majority.

The evolution of journalism has been similar in most Western countries where the press has not been muzzled. The establishment of powerful press empires, as in West Germany, does not fail to provide debate on social responsibility. In many Third World countries, however, the press has still to undergo its libertarian revolution and cut itself off from political power.

Communist regimes have a particular conception of the press which harks back to former authoritarian notions. The difference is that here the truth does not come down form on high but emanates from the proletariat. In both cases, there is a small group of official spokesmen who impose this truth on everyone. The Party represents the people, thus it must necessarily possess the common truth. Facts and events are unimportant in themselves. What counts is their interpretation, and their significance for the future of communism. Contrary to the Western way of thinking, which presumes that truth has many voices, Marxism-Leninism holds that there is but one truth, that of the Party. Thus it is quite logical that the official mouthpiece of the Communist Party in the USSR, the country's most important newspaper, is called Pravda (Truth).

Freedom of the press, which generations of pamphleteers, printers, and journalists wrested by struggle over the centuries that followed the invention of printing, permitted the remarkable growth of information that one sees today in the Western world. Threatened as it always is by political, economic, and other powers, it remains the protector of the profession and the industry. For 100 years or so, the evolution of the libertarian principle in Canada has permitted the press gradually to escape form the narrow confines of political fanaticism and religious sectarianism, to give up vindictive rhetoric and blinkers of prejudice, and to adopt the standards of honesty, fairness, and open-mindedness necessary to interpret for the public the manifold variety and complexity of the contemporary world. The evolution of these concepts and principles could not have produced this result, however, without a parallel evolution in jurisprudence.

The Evolution of Legal Principle

The proliferation of printed matter of all kinds that we see today has been made possible only because of the gradual recognition of the right to the free expression of ideas. This right was established slowly through centuries of authoritarianism. From the recognition of the principle to full protection in law, the road was long and arduous.

In the 16th and 17th centuries, in England as in France, almost nothing could be printed without royal or clerical sanction. The repeal of the Licensing Act in 1695, which paved the way for the development of freedom of the press in England, although this freedom was hampered for a long time by the Stamp Act and the Libel Act, did not follow form the principles of liberty set forth by Milton, but from Parliament's desire to put an end to practices that bothered merchants in the City. Here we see a dividing line marking the profound difference between English and French jurisprudence. While the one would legislate for concrete situations, the other would tend to lay down universal principles which in reality would remain more or less a dead letter. Thus at the time of the French Revolution, the Declaration of the Rights of Man recognized in principle the right to publish and print opinions but the practice was limited by the state. During the 19th century, France went through successive periods of opposition and abolition of censorship, until the Law of July 29, 1881, which made freedom of the press a reality. In the meantime, the French press was the subject of a great number of recommendations and regulations by the omnipresent state. English practice was entirely different.

In fact, British jurisprudence does not recognize any special freedom of the press. Anything that is printed goes - as an extension of freedom of opinion - as long as one does not break the law of libel or other laws. In other words, such freedom is absolute as long as it is not used to damage someone's reputation, act immorally, or betray the nation. And what gave real meaning to freedom of the press in the libel law which at first served authorities as a weapon to fend off all opinions or information that disturbed them. In 1835, sued for libel and practically convicted in advance, the publisher of the Nova Scotian, Joseph Howe, set a precedent in Canada by getting the jury to recognize the primacy of truth and the public welfare above all else.

In the United States, the great democratic thrust of the Revolution led to a guarantee of the freedom of the press in the basic law of the land. It was the subject of the First Amendment to the Constitution, which today still serves as a safeguard for the freedom of the news media. The amendment - "Congress shall make not law...abridging the freedom of speech, or of the press" - sets forth distinctly two rights which are usually not differentiated: the right of freedom of speech, and the right of freedom of the press. So does the 1960 Canadian Bill of Rights. The "human rights and fundamental freedoms" to be protected are set out in separate clauses: freedom of speech in Section 1(d), freedom of the press in Section 1(f). In the Charter of Rights and Freedoms, proposed in Schedule B to the constitutional bill of 1981, "freedom of the press and other media of information" is set in a much broader context:

Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of information...

The British Royal Commission on the Press, in 1977, had this comment:

Freedom of the press carries different meanings for different meanings for different people. Some emphasize the freedom of the proprietors to market their publications; others, the freedom of individuals, whether professional journalists or not, to address the public through the press; still others stress the freedom of editors to decide what shall be published.

These, added the Commission, are all "elements in the right to freedom of expression".

Recent international declarations of human rights have departed entirely from traditional usage: neither freedom of speech nor freedom of the press is mentioned as such. Their definitions are broader, they deal with the free flow and exchange of information, insisting explicitly on the necessity of keeping the avenues of communication open. Article 19 of the Universal Declaration of Human Rights (adopted in 1948 by the United Nations) provides that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, and regardless of frontiers.

Article 19 of the UN International Covenant on Civil and Political Rights is even more explicit. After affirming, in Section 1, that "Everyone shall have the right to hold opinions without interference", Section 2 states that:

Everyone shall have the right to freedom of expression; this right shall include the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other media of his choice.

Obviously, the prodigious advances made in electronic communications make it increasingly difficult to refer simply to "the press". Definitions must be broadened. The importance of guaranteeing access to information, of all sorts, and inscribing it as a fundamental right is taking hold in the minds of all levels of society. The International Commission for the Study of Communications Problems (the McBride Commission) had this to say in its 1980 report:

Freedom of the press in its widest sense represents the collective enlargement of each citizen's freedom of expression which is accepted as a human right. Democratic societies are based on the concept of the sovereignty of the people, whose general will is determined by an informed public opinion. It is this right of the public to know that is the essence of media freedom of which the professional journalist, writer and producer are only custodians. Deprivation of this freedom diminishes all others....

This, then, is the heart of the matter: the right of the public to information....

A Statement of Principles for Canadian Daily Newspapers

(Adopted by the Canadian Daily Newspaper Publishers Association, April, 1977)

1. Ethics

Newspapers have individual codes of ethics and this declaration of principles is intended to complement them in their healthy diversity. As individual believers in free speech they have a duty to maintain standards of conduct in conformance with their own goals.

2. Freedom of the Press

Freedom of the press is an exercise of the common right to freedom of speech. It is the right to inform, to discuss, to advocate, to dissent. The Press claims no freedom that is not the right of every person. Truth emerges from free discussion and free reporting and both are essential to foster and preserve a democratic society.

3. Responsibility

The newspaper has responsibilities to its readers, its shareholders, its employees and its advertisers. But the operation of a newspaper is in effect a public trust, no less binding because it is not formally conferred, and its overriding responsibility is to the society which protects and provides its freedom.

4. Accuracy and Fairness

The newspaper keeps faith with its readers by presenting the news comprehensively, accurately and fairly, and by acknowledging mistakes promptly.

Fairness requires a balanced presentation of the relevant facts in a news report, and of all substantial opinions in a matter of controversy. It precludes distortion of meaning by over- or under-emphasis, by placing facts or quotations out of context, or by headlines not warranted by the text. When statements are made that injure the reputation of an individual or group those affected should be given the earliest opportunity to reply.

Fairness requires that in the reporting of news, the right of every person to a fair trial should be respected.

Fairness also requires that sources of information should be identified except when there is a clear and pressing reason to protect their anonymity. Except in rare circumstances, reporters should not conceal their own identity. Newspapers and their staffs should not induce people to commit illegal or improper acts. Sound practice makes a clear distinction for the reader between news reports and expressions of opinion.

5. Independence

The newspaper should hold itself free of any obligation save that of fidelity to the public good. It should pay the costs incurred in gathering and publishing news. Conflicts of interest, and the appearance of conflicts of interest, must be avoided. Outside interests that could affect, or appear to affect, the newspaper's freedom to report the news impartially should be avoided.

6. Privacy

Every person has a right to privacy. There are inevitable conflicts between the right to privacy and the public good or the right to know about the conduct of public affairs. Each case should be judged in the light of common sense and humanity.

7. Access

The newspaper is a forum for the free interchange of information and opinion. It should give expression to the interests of minorities as well as majorities, and of the less powerful elements in society.

Note

A recurring issue is whether self-regulation, the articulation and enforcement of a standard of ethics, should be left to the industry. To what extent can the print media be relied upon to observe standards of fairness and propriety; to what extent is regulatory intervention either desirable or necessary?

Broadcasting Act, R.S.C. 1985, c. B-9 (extracts)

Broadcasting Policy for Canada

3. It is hereby declared that

(a) broadcasting undertakings in Canada make use of radio frequencies that are public property and those undertakings constitute a single system, in this Act referred to as the Canadian broadcasting system, comprising public and private elements;

(b) the Canadian broadcasting system should be effectively owned and controlled by Canadians so as to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada;

(c) all persons licensed to carry on broadcasting undertakings have a responsibility for programs they broadcast but the right to freedom of expression and the right of persons to receive programs, subject only to generally applicable statutes and regulations, is unquestioned;

(d) the programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the programming provided by each broadcaster should be of high standard, using predominantly Canadian creative and other resources;

(e) all Canadians are entitled to broadcasting service in English and French as public funds become available;

(f) there should be provided, through a corporation established by Parliament for the purpose, a national broadcasting service that is predominantly Canadian in content and character;

(g) the national broadcasting service should

(i) be a balanced service of information, enlightenment and entertainment for people of different ages, interests and tastes covering the whole range of programming in fair proportion,

(ii) be extended to all parts of Canada, as public funds become available,

(iii) be in English and French, serving the special needs of geographic regions, and actively contributing to the flow and exchange of cultural and regional information and entertainment, and

(iv) contribute to the development of national unity and provide for a continuing expression of Canadian identity;

(h) where any conflict arises between the objectives of the national broadcasting service and the interests of the private element of the Canadian broadcasting system, it shall be resolved in the public interest but paramount consideration shall be given to the objectives of the national broadcasting service;

(i) facilities should be provided within the Canadian broadcasting system for educational broadcasting;

(j) the regulation and supervision of the Canadian broadcasting system should be flexible and readily adaptable to scientific and technical advances; and

(k) the objectives of the broadcasting policy for Canada enunciated in this section can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority. R.S., c. B-11, s.3.

Objects

5. Subject to this Act and the Radio Act and any directions to the Commission issued from time to time by the Governor in Council under the authority of this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in section 3. R.S., c B-11, s.15.

Powers

6. (1) In furtherance of its objects the Commission, on the recommendation of the Executive Committee, may

(a) prescribe classes of broadcasting licences;

(b) make regulations applicable to all persons holding broadcasting licences, or to all persons holding broadcasting licences of one or more classes,

(i) respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to paragraph 3(d),

(ii) respecting the character of advertising and the amount of time that may be devoted to advertising,

(iii) respecting the proportion of time that may be devoted to broadcasting programs, advertisements or announcements of a partisan political character and the assignment of the time on an equitable basis to political parties and candidates,

(iv) respecting the use of dramatization in programs, advertisements or announcements of a partisan political character,

(v) respecting the broadcasting times to be reserved for network programs by any broadcasting station operated as part of a network,

(vi) prescribing the broadcasting times to be reserved for network programs by any broadcasting station operated as part of a network,

(vii) with the approval of the Treasury Board, fixing the schedules of fees to be paid by licensees and providing for the payment thereof,

(viii) requiring licensees to submit to the Commission such information regarding their programs and financial affairs or otherwise relating to the conduct and management of their affairs as the regulations may specify, and

(ix) respecting such other matters as it deems necessary for the furtherance of its objects; and

(c) subject to this Part, revoke any broadcasting licence other than a broadcasting licence issued to the Corporation. ...

7. In furtherance of the objects of the Commission, the Executive Committee, after consultation with the part-time members in attendance at a meeting of the Commission, may

(a) issue broadcasting licences for such terms not exceeding five years and subject to such conditions related to the circumstances of the licensee

(i) as the Executive Committee deems appropriate for the implementation of the broadcasting policy enunciated in section 3, and

(ii) in the case of broadcasting licences issued to the Corporation, as the Executive Committee deems consistent with the provision, through the Corporation, of the national broadcasting service contemplated by section 3;

(b) on application by a licensee, amend any conditions of a broadcasting licence issued to the licensee;

(c) issue renewals of broadcasting licences for such terms not exceeding five years as the Executive Committee considers reasonable and subject to the conditions to which the renewed licences were previously subject or to such other conditions as comply with paragraph (a);

(d) subject to this Part, suspend any broadcasting licence other than a broadcasting licence issued to the Corporation;

(e) exempt persons carrying on broadcasting receiving undertakings of any class from the requirement that they hold broadcasting licences; and

(f) review and consider any technical matter relating to broadcasting referred to the Commission by the Minister and make recommendations to the Minister with respect to any such matter. R.S., c. B-11, s.17

Note

By contrast to print media, the broadcast media are heavily governed by a regulatory commission, the CRTC. Have the differences between these two media been exaggerated? Should both be regulated in much the same way? If so, does that suggest less regulation for the broadcast media (pursuant to the print model), or more regulation for the print media (pursuant to the broadcast model)?

Law Reform Commission of Canada - CRTC Study (extracts)

1. The Background of the CRTC's Present Regulatory Authority

The Canadian Radio-Television Commission (CRTC) came into existence on April 1, 1968 with regulatory authority over the broadcasting undertakings and networks of such undertakings which constitute the Canadian broadcasting system. The Broadcasting Act refers to these undertakings as broadcasting transmitting undertakings (radio and television stations) and broadcasting receiving undertakings (cable television systems). Broadcasting itself is defined to mean any radiocommunication in which the transmissions are intended for direct reception by the general public.

Broadcasting jurisdiction is separate form that pertaining to private radiocommunication. The latter is licensed and regulated by the Minister of Communications. The Department also plays a role in the licensing of broadcasting undertakings in that no licence may be issued by the CRTC until the Department has certified that the Department's technical requirements for such undertakings have been satisfied.

Since April 1, 1976, the CRTC has also exercised authority over the federally regulated telecommunications carriers.... Whereas broadcasting regulation is principally concerned with licensing, the regulation of telecommunication carriers centres on the rates or tolls charged to the public for telephone, telegraph and various types of other business communications services. The sources and regulatory objectives of these two basic areas of jurisdiction are quite distinct...

A. Broadcasting

Since the first broadcasting licence was issued in 1919, six separate authorities have regulated broadcasting in Canada. These are: the Minister of Marine and Fisheries (1919-1932), Canadian Radio Broadcasting Commission (1932-1936), Canadian Broadcasting Corporation (1936-1958), Board of Broadcast Governors (1958-1968), Canadian Radio-Television Commission (1968-1976), and currently, Canadian Radio-Television and Telecommunications Commission. These different bodies were established over the years to reflect changing philosophies on the appropriate structure for a regulatory body that would accomplish national, public policy goals and at the same time accommodate the private enterprise element of broadcasting. It is the combination of public and private elements in broadcasting that has made Canada's system unique. Finding the correct structure to effectively regulate this combination has not been easy. Frank W. Peers' comment on this problem in a book written more than 10 year ago is still relevant:

Successive Canadian parliaments have decided that broadcasting should be an instrument of national purpose. For this they set up a publicly owned system, within which private and commercial broadcasting have always had a place. The clear intent was and still is to give the dominant role to the public service, yet the pressures of the private broadcasters of the conflict between service and private gain as the guiding motive of broadcasting. What appear to be the same questions of public policy are fought and refought. Does Canadian broadcasting match Canadian needs? Are we prepared to pay for a system to meet them? Can Canadian broadcasters purvey increasing quantities of American mass entertainment without surrendering totally to its commercial ethos? What public controls should there be? How should they be exercised, and by whom?

Inquiry succeeds inquiry; commissions report, and committees review the work on the commissions; finally governments act. Yet the debate goes on.

While the creation of five different regulatory bodies to deal with broadcasting since 1932 gives the impression of an excess of legislative experimenting with regulatory mechanisms, there has been a consistent trend towards developing bodies with greater independence from the political process and from the operational side of the public element of the broadcasting system. In the beginning, broadcasting was licensed and regulated by the Minister of Marine and Fisheries who operated largely in the absence of any national policy in the field. Radio stations in Canada sprang into existence as the result of private enterprise. Regulations by and large took the form of responses to entrepreneurial initiatives. Under these circumstances, politics quite naturally played an important role in the granting of licences and the regulation of licensees/ activities. An increasingly chaotic situation prevailed throughout the 1920's as frequencies were largely unsupervised. In an address to the House of Commons in 1928, the Minister of Marine, Mr. Cardin, stated:

We have made up our minds that a change must be made in the broadcasting situation in Canada. We have reached a point where it is impossible for a member of the government or for the government itself to exercise the discretionary power which is given by the law... for the reason that the moment the Minister in charge exercises his discretion, the matter becomes a political football and a political issue all over Canada... We should change the situation and take radio broadcasting away from the influences of all sorts which are brought to bear by all shades of political parties.

Soon after this announcement, the first Royal Commission on Broadcasting was appointed on December 6, 1928. The Aird Commission, as it came to be known, interpreted its purpose as being "to determine how radio broadcasting in Canada could be most effectively carried on in the interests of Canadian listeners and in the national interests of Canada". This purpose reflected a growing concern over the use of American programs, a concern that is just as evident today in the area of television programming. In fact, the issue of Canadian sovereignty over the broadcasting system has never abated. The mandate given to the Consultative Committee on the Implications of Telecommunications for Canadian Sovereignty ("Clyne Committee"), the most recent of the many bodies established over the years to study broadcasting, included a direction to produce specific recommendations on the means of more effectively safeguarding Canada's sovereignty over its telecommunications system, with particular reference to the role of broadcasting and the problem of the importation of foreign programming.

The Aird Commission's report, delivered on September 11, 1929, stated certain fundamental principles which have been instrumental in shaping federal broadcasting policy since that time. The most important of these was the idea that broadcasting should be regarded as a national public service and that its ownership and operating structure should be organized to recognize this principle. The report noted the great potential of radio for fostering a sense of national spirit and sounded alarms about the impact of the increasing quantity of imported programs on Canadians' sense of their own identity and values.

Following a reference to the Supreme Court of Canada and a subsequent appeal to the Judicial Committee of the Privy Council in England, which confirmed federal jurisdiction over radiocommunication, a special parliamentary committee was appointed to study the Aird Commission's report. The Committee held extensive hearings and made recommendations to Parliament which led to the enactment of The Canadian Radio Broadcasting Act on May 26, 1932. This Act established the Canadian Radio-Broadcasting Commission, a body corporate consisting of three full-time commissioners. The Commission was given two main functions: to regulate and control broadcasting and to carry on the business of broadcasting in Canada. Under the latter function, the Commission was empowered to originate and transmit programs, to lease or purchase existing stations, to construct new stations and literally to take over broadcasting in the country.

These seemingly sweeping powers, as it turned out, were somewhat illusory. The Commission had very limited autonomy and was not provided the finances necessary to carry out its mandate. As a result, the private side of broadcasting continued to flourish and the Commission did not make a very significant impact on developing the public side.

Discontent with this situation, both inside and outside the Commission, led in 1936 to a new Canadian Broadcasting Act which created the Canadian Broadcasting Corporation (CBC). The regulatory authority granted to the CBC was much the same as the preceding Commission. However, in its role as provider of the national broadcasting service, the Corporation was granted more autonomy and more satisfactory financing even though funding continued to be both from the broadcasters and from the owners of receiving sets.

While the CBC continued both to operate a national service and regulate the private service, private licensees began to argue for a different regulatory structure because of the inherent unfairness in combining in the same body, the roles of competitor and regulator. The CBC was sensitive to its position of potential conflict particularly network programming. As a result, and notwithstanding the complaints of private broadcasters, the CBC was criticized by subsequent royal commissions for being too lax in enforcing its regulations. The Canadian Association of Broadcasters urged both the Royal Commission on National Development in the Arts, Letters and Sciences (the "Massey Commission") in 1949 and the Royal Commission on Broadcasting (the "Fowler Commission") in 1957, to recommend the establishment of a new body, independent of the CBC, to regulate both public and private broadcasting. The Massey Commission rejected this suggestion outright, but the Fowler Commission recommended a structural change in which the CBC would operate as a crown corporation and a second public agency, a Board of Broadcast Governors, would have responsibility for all phases of Canadian broadcasting, both public and private, including the direction of policy and supervision of the operation of the Corporation. This recommendation was carried into the 1958 Broadcasting Act.

Neither the Board of Broadcast Governors nor its predecessors had the power to issue or revoke licences. These bodies did, however, hold hearings in connection with licensing matters and made recommendations to the appropriate Minister who had a discretion to follow or reject the recommendation. Licences were consequently issued or revoked by the Governor in Council.

In 1968, the Broadcasting Act was again revised. As varied by the Canadian Radio-television and Telecommunications Commission Act, (CRTC Act) it remains the law today. Under the 1968 Act, the Canadian Radio-Television Commission was established with full regulatory powers over both the CBC and private broadcasters as well as power to issue, renew, amend, suspend and revoke licences. Its objects are stated to be the regulation and supervision of all aspects of the Canadian broadcasting system. While the CBC is therefore subject to CRTC regulations and its licensing authority, the Corporation has its own board of directors and operates independently of the CRTC. In the current structure, therefore, the regulatory body is completely separate form the operational side of public broadcasting and is independent of the government in both its licensing and regulation-making functions....

2. Broadcasting Regulation

The Broadcasting Act, as amended by the CRTC Act, provide for the appointment of nine full-time members of the CRTC, who are referred to in the Act as the "Executive Committee", and ten part-time members. The full-time members may be appointed for terms not exceeding seven years and hold office during good behaviour. With the exception of the two specific powers referred to below, the Executive Committee has a nearly exclusive decision-making power in broadcasting matters and exclusive powers in telecommunications matters.

The part-time members are appointed for terms of up to five years and also hold office during good behaviour. they are appointed on a regional basis and participate only in broadcasting matters. Their decision-making powers are limited to the enactment of regulations and revoking of licences. While such members must be consulted on the various types of licensing applications at a meeting of the Commission, the Executive Committee makes the final decisions in such matters....

A. The Powers of the CRTC in Broadcasting Matters

The Broadcasting Act vests in the CRTC very broad powers which are carried out primarily through its licensing functions. Section [5] of the Act requires the Commission to regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in Section 3 of the Act. The policy objectives set forth in that section are cast in very wide terms. The Commission's licensing powers under section [7] and regulation making powers under section [6] must be carried out "in furtherance of its objects". The CRTC has not declined the invitation of such sections to exercise its discretion expansively. The breadth of the Act's language has tended to insulate the Commission against legal attack. In cases where the use of its discretionary powers has been challenged, the courts have supported a broad interpretation of such powers.

The majority of the applications made to the CRTC in broadcasting matters are for the issue, amendment or renewal of broadcasting licences. The Commission also has the power to suspend or revoke licences but has rarely used it. The maximum term for which a licence may be issued is 5 years and this provides an opportunity for the CRTC to periodically review the performance of licensees. If the performance is found wanting, the Commission may fail to renew the licence. Again, this has seldom happened.

The Commission also receives a substantial number of applications dealing with transfers of ownership in broadcasting undertakings. Standard conditions attached to each licence require that all share transfers in companies whose shares are not publicly traded require prior approval by the CRTC. In companies whose shares are publicly traded, the requirement applies only to transfers of effective control of the undertaking. This distinction has been made in recognition of the realities of security trading on the public exchanges and the fact that a requirement for approval of all share transfers in such cases would be too great a regulatory intrusion into the market place.

The other broad categories of functions exercised by the CRTC under its supervisory powers are policy-making and dealing with complaints. Over its history, the Commission has been very active in formulating policy principles as a guide to its licensing decisions and publishing these as white papers. The public and broadcasters are then given an opportunity to comment on the proposed policies. This has helped to create a more certain and consistent regulatory environment in an area where, as noted, there is a great deal of discretion.

Complaints flow in regularly to the CRTC from members of the public. These are usually dealt with by referring them to the licensee involved with a request to reply directly to the complainant and keep the CRTC advised. Under the Broadcasting Act, responsibility for programs rests with the licensees who broadcast them. The CRTC takes the attitude that licensees must therefore be accountable to the public and be prepared to resolve programming complaints. A record of all such complaints is kept by the CRTC and may affect its decision on whether to renew a given license. The Commission has the power under the Act to hold a public hearing on any complaint but rarely does so.

Royal Commission on Newspapers (Kent Commission) 1981

(Chapter 14 - Recommendations (extracts))

In this final chapter we set out our recommendations to the Government of Canada. We propose a Canada Newspaper Act designed to secure for the press of Canada the freedom that is essential to a democratic society from coast to coast. We consider that this is necessary for the press's fulfilment of its responsibilities to the public, contributing to what our terms of reference summarized as "the political, economic, social and intellectual vitality and cohesion of the nation as a whole".

To that end the press must fully retain its traditional freedom from interference by government. But, in all matters, freedom requires not only the absence of government shackles but also the affirmative action of law to protect society against the chains that its powerful minorities may impose on others.

The ownership and control of most newspapers is today highly concentrated under interests whose business concerns extend far beyond the particular newspaper. Much of our press, consequently, is not itself dedicated exclusively to the purposes of the press, to the discharge of its public responsibility. Extraneous interests, operating internally, are the chains that today limit the freedom of the press.

Because we are the kind of society we are, the bonds are not drawn tight. Because we are the kind of society we are, the Commission feel no need to recommend a dramatic striking off of those bonds. We do find it essential that there be legislation to enable the press to grow out of the weaknesses fostered by extraneous commercial interests.

The legislation we propose has the following main features:

(1) It would prohibit significant further concentration of the ownership and control of daily newspapers and of the common ownership of these newspapers and other media.

(2) It would correct the very worst cases of concentration that now exist.

(3) It would provide an incentive to the wider ownership of newspapers that change hands, and of new newspapers and magazines.

(4) It would raise the status and enhance the freedom of journalists by protecting their rights, if a newspaper is under an ownership that has major interests outside the newspaper, and provide an opportunity for the voice of the community, whose citizens have a particular stake in the quality of the local newspaper, to be heard.

(5) It would establish, in conjunction with the Canadian Human Rights Commission, a Press Rights Panel which would monitor the implementation and effectiveness of the legislation.

(6) It would provide for a tax credit and a surtax to encourage newspapers to devote more of their resources to the provision of information.

(7) It would provide matching grants to help to improve news services within Canada and for Canadians about the world.

New Brunswick Broadcasting Co. v. C.R.T.C.

(1984), 13 D.L.R. (4th) 77 (F.C.A.)

Thurlow, C.J.

This is... an appeal under s.26 of the Broadcasting Act... . What is attacked... is a decision of the Canadian Radio-television and Telecommunications Commission dated August 11, 1983, which limited the renewal of the television broadcasting licences of the appellant and its rebroadcasters to a term expiring on January 1, 1986....

At the center of the situation from which the problem arises is the fact that the appellant is wholly-owned subsidiary of New Brunswick Publishing Company Limited, a company which is owned by James K. Irving, Arthur L. Irving and K.C. Irving Limited and which publishes two daily newspapers in Saint John, New Brunswick. The direction, the text of which is cited later, restricts the authority of the commission to issue broadcasting licences to persons who own or control newspapers circulated in the broadcasting area....

The appellant's owners do not want to discontinue the television broadcasting operation. Nor do they want to dispose of their newspaper publishing operations. On the other hand, it is apparent from the historical facts appearing in the record as well as the opposition mounted by the Consumers' Association of Canada and others to the renewal of the appellant's television broadcasting licences that not everyone is persuaded that it is a good thing to have several forms of media communication in the same market controlled by a single person or group of persons....

The [Kent Commission] report... included the following [remark]:

In New Brunswick, the principle to be expressed in our proposed Newspaper Act requires that the Irving interests divest themselves of either their two-in-one papers in Saint John or their similar Moncton papers. They would also have to decide, under the rules against cross-media ownership, whether to keep the Saint John papers or their television and radio stations.

A further item of evidence tendered by the appellant was a printed copy of a speech delivered on May 25, 1982, by the Honourable Jim Fleming, the Minister responsible for the government's response to the Royal Commission on newspapers... The speech is entitled "Government Proposals on Freedom of the Press in Relation to the Canadian Daily Newspaper Industry [].

The speech, which runs for some eight printed pages, includes the following:

During my consideration of the Canadian newspaper industry I have endeavoured to address three fundamental premises:

- First, newspapers are a special business. They are the printed record. Unlike other media, they provide daily, in-depth coverage of events.

- Secondly, diversity of information sources is a cornerstone of democracy.

- Thirdly, concentration of control by any power, private or public, over the press is an issue of great import and concern.

Having considered the current state of the Canadian newspaper industry in the light of these basic ideas, the Cabinet has concluded that certain governmental actions must be taken to control potential interference with or infringement of freedom of the press in Canada.

The argument has come from certain quarters that any action by the Government would threaten freedom of the press. I certainly agree that the Government must at all costs avoid intruding or appearing to intrude in a manner intimidating to editorial freedom. On the other hand, for a government to remain passive while concentration or conglomerate ownership can endanger a free press is equally wrong. There arrives thus a point at which failure by the Government to intervene makes the Government an accomplice against a free press through dereliction.

The proposals I shall set forth today are an effort to see the Government take up its responsibilities through the legislative process and then step back. Our goal is to protect a free press by ensuring diversity and avoiding intimidation through public or private power.

Parliament will be asked to pass a Canadian newspaper act and amendments to other acts, which will prohibit any one owner form gaining control, through acquisition or merger, of newspapers whose total circulation would exceed 20 per cent of the average Canadian circulation of daily newspapers. This limit will not be retroactive for the two owners who now exceed the limit but it will not allow them to acquire any additional papers so long as they are in excess of the 20 per cent level. This legislative action will not prohibit an increase in circulation of newspapers already owned.

After describing further features of the proposed legislation and the system to be established under it, the Minister proceeded:

Beyond these legislative initiatives, the Cabinet agreed that the Governor in Council direct the Canadian Radio-television and Telecommunications Commission (CRTC) when considering licence renewals or applications to prohibit newspapers as a class of applicants from holding controlling interest in companies holding federal broadcasting licences in the same market area.

This would be subject only to overriding public interest considerations and/or consequences that would create exceptional and unreasonable hardship. The strictures on cross-media ownership in a particular market would also take into consideration existing competition and dominance by a corporate owner in that area, the decision resting with the CRTC.

In simple language, this decision means that, with clear exceptions, a company will not be allowed to control a newspaper and a television or radio station in the same locale. Given the nature of the marketplace, of course, there may be cities where there is so much cross-media competition that the CRTC would nave no justifiable reason to prohibit specific instances of cross-ownership; the directive will take account of this reality. Moreover, there may be very unusual local situations where the CRTC feels that a divestiture would create exceptional hardship upon an owner; the directive also will take account of this reality but in such a case would insist on clear proof of independent and competitive news services.

...

The [CRTC] direction and the explanatory note follow:

Direction

3. The Canadian Radio-television and Telecommunications Commission is hereby directed that, on and after July 29, 1982, broadcasting licences may not be issued and renewals of broadcasting licences may not be granted to an applicant who is a member of the class described in section 4.

4. The class of applicants referred to in section 3 consists of

(a) the proprietors of daily newspapers, and

(b) the applicants who, in the opinion of the Commission, are effectively owned or controlled, or are in a position to be effectively owned or controlled directly or indirectly, by the proprietor of a daily newspaper

where the major circulation area of the daily newspaper substantially encompasses the major market area served or to be served by the broadcasting undertaking.

5. Where the Commission is satisfied that a refusal to grant a broadcasting licence or renewal applied for by an applicant of the class described in section 4 would be contrary to overriding public interest considerations... the Commission may, notwithstanding section 3, grant a licence or a renewal thereof.

Explanatory Note

This Direction is to ensure that, with certain exceptions, enterprises engaged in the publication of daily newspapers shall be prohibited form owning or controlling broadcasting undertakings operating in the same market area for the general purpose of fostering independent, competitive and diverse sources of news and viewpoints within Canada.

The Charter of Rights

The appellant's submission on the Charter proceeds thus:

(1) Since freedom of the press and other media of communication is constitutionally guaranteed, the requirement of a licence for the operation of a broadcasting undertaking is in breach of s-s. 2(b)... ;

(2) It is acknowledged, however, that the requirement of a licence is a limit which can be demonstrably justified in a free and democratic society... .

(3) However, the direction, in so far as it denies broadcasting licences to "newspaper proprietors", is inconsistent with and in violation of the appellant's right of freedom of the press and other media of communication guaranteed to everyone by s-s. 2(b)... . Further, in so far as the direction denies to the public broadcasting service because a newspaper proprietor controls a broadcasting undertaking, it is inconsistent with and in violation of the rights and freedoms guaranteed to everyone by s-s. 2(b)... .

In my opinion, the argument confuses the freedom guaranteed by the Charter with a right to the use of property and is not sustainable. The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else's property to do so. it gives no right to anyone to use someone else's land or platform to make a speech, or someone else's printing press to publish his ideas. It gives no right to anyone to enter and use a public building for such purposes. And it gives no right to anyone to use the radio frequencies which, before the enactment of the Charter, had been declared by parliament to be and had become public property and subject to the licensing and other provisions of the Broadcasting Act. The appellant's freedom to broadcast what it wishes to communicate would not be denied by the refusal of a licence to operate a broadcasting undertaking. it would have the same freedom as anyone else to air its information by purchasing time on a licensed station. Nor does the Charter confer on the rest of the public a right to a broadcasting service to be provided by the appellant. Moreover, since the freedom guaranteed by para. 2(b) does not include a right for anyone to use the property of another or public property, the use of which was subject to and governed by the provisions of a statute, there is, in my opinion, no occasion or need to resort to s.1 of the Charter to justify the licensing system established by the Broadcasting Act. ...

B. RATIONALES FOR REGULATION

Spectrum Sarcity

Red Lion Broadcasting Co. v. F.C.C.

395 U.S. 367 (1969)

White, J., delivered the opinion of the Court

The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases... Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely in the form of FCC regulations in 1967.

... The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a 'Christian Crusade' series. A book by Fred J. Cook entitled 'Goldwater--Extremist on the Right' was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a 'book to smear and destroy Barry Goldwater.' When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine... to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review..., the FCC's position was upheld as constitutional and otherwise proper. []

Not long after the Red Lion litigation was begun, the FCC issued a Notice of Proposed Rule Making, 31 Fed.Reg. 5710, with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. ...

As they now stand amended, the regulations read as follows:

Personal attacks; political editorials.

(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available ) of the attack, and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.

(b) The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign; and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) of this section shall be applicable to editorials of the licensee).

(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial; and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the licensee's facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.' []

... The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules ... alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.

Although broadcasting is clearly a medium affected by a First Amendment interest, [] differences in the characteristics of new media justify differences in the First Amendment standards applied to them. For example, the ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the sound level, and on the hours and places of use of sound trucks so long as the restrictions are reasonable and applied without discrimination [].

Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others. []

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 the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may help 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.

It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934... .

... Where 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. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same 'right' to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.

... No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech.' []

... A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to 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.

... Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favour 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. [] It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. [] ... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.

... The ruling and regulations at issue here ... assert that under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on 'their' frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.

In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equal-time provision of § 315, a specific enactment of Congress requiring stations to set aside reply time under specified circumstances and to which the fairness doctrine and these constituent regulations are important complements. That provision, ... [] has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned. []

Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." ...

... We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials.

It is argued that even if at one time the lack of available frequencies for all who wished to use them justified the Government's choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails so that continuing control is not justified. To this there are several answers.

Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also grown apace.

... Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so congested that at times it has been necessary to suspend new applications. The very high frequency television spectrum is, in the country's major markets, almost entirely occupied, although space reserved for ultra high frequency television transmission, which is a relatively recent development as a commercially viable alternative, has not yet been completely filled.

... Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential.

In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional. ...

Notes and Questions

1. The scarcity rationale has been attacked on a number of grounds. In Technologies of Freedom (1983), Ithiel de Sola Pool criticized the rationale in the following terms:

The time has come in time to bury the old cliche that spectrum is a scarce resource. It is an abundant resource, but a squandered and misused one. Like any resource, it is limited, but like such other communications resources as paper, trees, printing presses, wires, or television sets, it is plentiful.

As economists use the word, almost all resources are "scarce". That is to say, utilization of a resource withdraws it from alternative uses. Information is an exceptional resource for which this is not true. Giving information to one person does not reduce the amount of it available for another. Spectrum is not like that, but it is like water, paper, or petroleum in that use of it by one person limits what is available to others. In that technical sense it is scarce. But in the layman's sense, in which water is abundant but diamonds are scarce, spectrum is abundant. If it were sold at its true price, spectrum would turn out to be a bargain; there is much of it to be had. It is renewable; when a user has used it for one hour or a nanosecond, it is there afterwards for the next person to use. And what is more, technological progress over the past half-century has multiplied its availability.

Spectrum shortage is thus no longer a technical problem but only a man-made one. The court in Red Lion was wrong...

De Sola Pool notes that there are numerous ways to expand the channels that are available for electronic communication, including storing the message in electronic memory to be delivered when convenient, tighter channel spacing and localization, improvement of receivers, allocating new frequencies, compression, multiplexing, and by the use of enclosed carriers such as cable and fibre optics.

2. Similar rationales have been adopted by the D.C. Circuit in its decision in Telecommunications Research and Action Centre v. F.C.C., 801 F. 2d 501 (D.C. Cir. 1986). In that case, Justice Bork upheld the decision of the F.C.C. not to apply the fairness doctrine to Teletex, which he found to be a broadcasting service. He commented as follows:

The basic difficulty in this entire area is that the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter is a distinction without a difference. Employing the scarcity concept as an analytic tool, particularly with respect to new and unforseen technologies, inevitably leads to strained and artificial results.

It is certainly true that broadcast frequencies are scarce but it is unclear that that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not the least newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wishes to publish a newspaper, or even a pamphlet may do so. Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.

Neither is content regulation explained by the fact that broadcasters faced a problem of interference, so that the government must define useable frequencies and protect those frequencies from encroachment. This governmental definition of frequencies is another instance of the universal fact that does not offer an explanatory principle for differing treatment. A publisher can deliver his papers only because government provides streets by allocating rights of way. Yet no one would contend that the necessity for these governmental functions, which are analogous to the government's functions in allocating broadcast vacancies, could justify regulation of the content of a newspaper to ensure that it serves the needs of its citizens.

3. In 1987, the F.C.C. announced that it was no longer going to enforce the fairness doctrine because of its belief that it was precluded from doing so by the Constitution. See 2 F.C.C. Record Vol. 17 5043 (1987) at 5058.

Public Property

Re CFRB and Attorney General of Canada et al.

[1973] 3 O.R. 819 (Ont. C.A.)

Kelly, J.A.

A prosecution was launched against C.F.R.B. Limited (the station) for an infraction of s.28(1) of the Broadcasting Act [which prohibits the broadcast of partisan material on the day of an election or a referendum vote.]

... I am of the opinion that the exclusive legislative authority of Parliament with respect to radio communication extends to the control and regulation of the intellectual content of radio communication. If the Broadcasting Act comes within the classes of subject assigned to Parliament, the scope of Parliament's powers is not affected by the fact that its enactments affect some of the classes of subjects reserved to the provincial Legislatures....

Since radio communication takes place by means of electromagnetic waves of specified frequencies, themselves imperceptible to the human senses, propagated in space without artificial guide, it makes use of certain physical qualities of space which are, and have been declared to be public property. Parliament has the control and regulation of the undertaking making use of this property and has sought to exercise that control to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada [].

Parliament has further declared that the objective of the broadcasting policy for Canada enunciated in the Broadcasting Act can best be achieved by providing for the regulation and supervision of the Canadian Broadcasting System by a single independent public authority.

In the implementation of that policy franchises are granted conferring on the holder the exclusive right to use certain of the frequencies comprising the electromagnetic spectrum.

Apart from its exclusive right to legislate in the field of radio communication, there would appear to be a duty upon Parliament to ensure that the franchises granted to engage in radio communication should not be so used as to prejudice the public interest or to affect adversely the public generally. The implementation of this duty must be correlated to the risks attendant upon the use and more particularly the misuse of the privilege to occupy and use public property.

While one does not wish to expatiate on the value Canadians place on the democratic system of Government they enjoy and which they have jealously guarded against influences which might detract form the ability of each citizen freely to express his views on matters of public concern, if the cultural, political, social and economic fabric of Canada is to be safeguarded, enriched and strengthened - it is a matter of some concern that any erosion of our political independence be resisted.

Central to the whole democratic process is the election of legislative bodies by the vote of electors who by their ballots have expressed their choice, through a process, evolved over the years, designed to remove or at least reduce the possibility of the electors; choice being unduly influenced by pressures put upon them.

With the advent of broadcasting, the public press and the face-to-face meeting of the elector and the candidate as potent forms of electioneering have to a considerable extent been superseded by radio communication. The proven influence of the radio message, its rapidity of circulation, as well as its almost universal coverage of those within its sphere of reception and its unique ability to infiltrate into the homes of the electors, properly made Parliament apprehensive as to its use during elections and particularly its misuse at a time when any misunderstanding created by a broadcast would be difficult, if not impossible, to overcome. Such a regulatory measure as is here under attack is one that suggests itself to be a salutary measure designed to prevent such an undesirable misuse of radio communication to the detriment of the democratic process.

It is to be noted that the section applies only to a comparatively short period before an election, the period during which an effective rejoinder would be difficult to make. This indicates to me a clearly defined intention not to put restrictions on the use of radio at times when statements made could be denied or discredited before they had an effect on the election. Further, its restriction to broadcasters or licensees operating community antenna networks (broadcast receiving undertakings) confines its operation to the use of the physical facilities for which a licence is required and does not extend the restriction to others who are not for their activities depending on a licence granted under the Act.

In my opinion, s.28 expounds what right-thinking people in Canada would consider to be a standard of decent conduct with respect to all elections in Canada. It does no more than impose on licensees a limitation of such short duration as is reasonable and consistent with an effort to prevent the misuse in this connection of broadcasting franchises to the public detriment.

Viewed from another aspect, regulation of the carrier system to ensure conformation to an acceptable standard of conduct is not attainable by means of provincial legislative action. While the control of individual persons might be legally accomplished by provincial legislation, the carrier system, being solely under the control and regulation of the Parliament, is beyond the reach of provincial regulation. Consequently, subject-matter does not come within the area of the overlapping scope of Parliament and the provincial Legislature and does not attempt to do what has been reserved to the provincial Legislature. ...

It was also urged by counsel that s.28 contravenes the rights the station to equality before the law and freedom of speech as assured by the Canadian Bill of Rights, ss. 1(b) and 2. I agree with Grant, J., that no restriction on freedom of speech that offends the provisions of the Canadian Bill of Rights is thereby placed on the holders of broadcasting licences, nor do I see any discrimination against such licensees of the type enjoined by s.1 of the Canadian Bill of Rights. The prohibition applies without distinction to every broadcaster and every licensee of a broadcasting receiving undertaking.

Culture/National Unity

Report of the Task Force on Broadcasting Policy (1986) --

The Caplan-Sauvageau Report (extracts)

The Public Character of Radio Frequencies

...Unlike American communications legislation which was designed primarily for co-ordination purposes, Canadian broadcasting policy has always pursued social and cultural objectives. It was never just because radio frequencies were scarce, but also because the Canadian presence on the airwaves was weak, that since 1929 commissions of inquiry into broadcasting have recommended strengthening the system. The assignment of radio frequencies for broadcasting in Canada is an essential component of national sovereignty.

Because of the urgency of the issue, Canada has always expected broadcasting to reflect the country's identity. From the outset radio and television were considered instruments for creative expression, education and information by and for Canadians rather than simply as entertainment media. The availability of a larger number of channels will do little or nothing to guarantee access or to ensure that the airwaves will reflect the Canadian identity and culture.

There are therefore still very good reasons for maintaining the public character of the radio frequencies used for broadcasting. It is not so much on the ground of the scarcity of radio frequencies that this policy is justified, but rather because of the importance of broadcasting in maintaining our national identity and expressing the values upon which our society is based.

Those who are granted the right to use radio frequencies are given an important responsibility. Contributing to the dissemination of Canadian culture is a duty inherent in the privilege they are granted as a public trust on behalf of Canadians...

Canadian Ownership of the System

The Broadcasting Act states that "the Canadian broadcasting system should be effectively owned and controlled by Canadians so as to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada". Following the adoption of the Act in 1968, the regulatory authorities ensured that undertakings owned by non-Canadians were sold to Canadians in compliance with the Act. All broadcasting undertakings operated in Canada are now in the hands of Canadians. This is a situation which must be maintained, because it makes it possible in principle to carry out the next step, which is to encourage them to "safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada". The Canadian ownership requirement, while it is essential, cannot by itself "Canadianize" the airwaves, as experience has shown, because it does not address the content issue. This is an objective that will best be achieved through a careful regulatory approach....

A Broadcasting System for Canadians

The idea that the Canadian broadcasting system should contribute towards "safeguarding, enriching and strengthening the cultural, political, social and economic fabric of Canada" is not a new one. Many commissions of inquiry into broadcasting have supported the idea and nothing would appear to be more legitimate than to count on Canadian broadcasting to serve first the interests and need of Canadians.

In an area where cultural considerations are also at stake, one cannot restrict debate to purely economic concerns. For example, it is difficult to argue that costly Canadian products should be replaced by lower-cost foreign goods in the field of broadcasting because if Canadians do not produce works that reflect their own culture, no one will do it for them; it is only when the market has a reasonable share of Canadian creative works that Canadians will find a reflection of themselves.

To this extent, we subscribe to Parliament's objective. But taken in isolation as formulated in the Act, it invokes the idea of undue political pressure, "national promotion", that would in some way be applied to programming. At this stage, the important point is to put the objective back in its proper context to allow us to understand its meaning correctly. It is now in the section that requires Canadian ownership of broadcasting undertakings so as to "safeguard, enrich and strengthen" etc. This means that it is intended to support a measure designed to regain control over the system and we have already seen that regaining ownership of the system is not enough to guarantee that Canadians will find their proper place on Canadian airwaves.

This, then, goes some way toward explaining how the Act was a reaction to a powerful and recurring trend present form the very inception of Canadian broadcasting: left to itself, Canadian broadcasting slips out of the hands of Canadians. The intent is not to promote something but rather to redress a specific state of affairs. The purpose is to establish conditions that give Canadians access to a medium of expression that has a complex and ponderous infrastructure....

The objective requires that the Canadian broadcasting system should play an active role in fostering a greater awareness of Canada and make available a greater variety of Canadian programming to allow the expression of the Canadian identity...

Privacy

Federal Communications Commission v. Pacifica Foundation

438 U.S. 723 (1978)

Stevens, J., delivered the opinion of the Court (Parts I, II, III and IV-C) and an opinion in which The Chief Justice and Rehnquist, J., joined (Parts IV-A and IV-B)

This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.

A satiric humorist named George Carlin recorded a 12-minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience.

At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the "Filthy Words" monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control."

The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society's attitude toward language and that, immediately before its broadcast, listeners had been advised that it included "sensitive language which might be regarded as offensive to some." Pacifica characterized George Carlin as "a significant social satirist" who "like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica stated that it was not aware of any other complaints about the broadcast.

On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica "could have been the subject of administrative sanctions." [] The Commission did not impose formal sanctions, but it did state that the order would be "associated with the station's license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress."...

The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the "law generally speaks to channelling behaviour more than actually prohibiting it. . . . [T]he concept of 'indecent' is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience." []

Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they "were broadcast at a time when children were undoubtedly in the audience (i.e., in the early afternoon)," and that the prerecorded language, with these offensive words "repeated over and over," was "deliberately broadcast." [] In summary, the Commission stated: "We therefore hold that the language as broadcast was indecent and prohibited by 18 U.S.C. [§] 1464." []

After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it." [] The Commission noted that its "declaratory order was issued in a specific factual context," and declined to comment on various hypothetical situations presented by the petition. [] It relied on its "long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them." []

Pacifica makes two constitutional attacks on the Commission's order. First, it argues that the Commission's construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica's broadcast of the "Filthy Words" monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio.

The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was "issued in a specific factual context." [] That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context--it cannot be adequately judged in the abstract.

... It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. []

... When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances. For if the government has any such power, this was an appropriate occasion for its exercise.

The words of the Carlin monologue are unquestionably "speech" within the meaning of the First Amendment. It is equally clear that the Commission's objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution.

... The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. [] But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if 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. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content--or even to the fact that it satirized contemporary attitudes about four-letter words--First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. ...

Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. [] Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. It is a characteristic of speech such as this that both its capacity to offend and its "social value,"... vary with the circumstances.

... In this case it is undisputed that the content of Pacifica's broadcast was "vulgar," "offensive," and "shocking." Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission's action was constitutionally permissible.

We have long recognized that each medium of expression presents special First Amendment problems. [] And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. ...

The reasons for these distinctions are complex, but two have relevance to the present case. 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 citizen, 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. [] Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.

... Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, [] that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. [] The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote a "nuisance may be merely a right thing in the wrong place,--like a pig in the parlour instead of the barnyard." [] We simply hold that when the Commission finds that a pig has entered the parlour, the exercise of its regulatory power does not depend on proof that the pig is obscene.

Powell, J., with whom Blackmun, J., joins, concurring in part and concurring in the judgment

... It is conceded that the monologue at issue here is not obscene in the constitutional sense. ... I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance. [] And I would assume that an adult could not constitutionally be prohibited from purchasing a recording or transcript of the monologue and playing or reading it in the privacy of his own home. []

But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characterizing the narrow category of language used here as "patently offensive" to most people regardless of age.

The issue, however, is whether the Commission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon. The Commission's primary concern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to "channel" the monologue to hours when the fewest unsupervised children would be exposed to it. [] In my view, this consideration provides strong support for the Commission's holding.

The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day. The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here. In short, I agree that on the facts of this case, the Commission's order did not violate respondent's First Amendment rights.

As the foregoing demonstrates, my views are generally in accord with what is said in Part IV-C of Mr. Justice Stevens' opinion. ... I do not join Part IV-B, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most "valuable" and hence deserving of the most protection, and which is less "valuable" and hence deserving of less protection. [] In my view, the result in this case does not turn on whether Carlin's monologue, viewed as a whole, or the words that constitute it, have more or less "value" than a candidate's campaign speech. This is a judgment for each person to make, not one for the judges to impose upon him.

The result turns instead on the unique characteristics of the broadcast media, combined with society's right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today's decision will prevent any adult who wishes to receive Carlin's message in Carlin's own words from doing so, and from making for himself a value judgment as to the merit of the message and words. ...

Brennan, J., with whom Marshall J., dissenting.

For the second time in two years, [] the Court refuses to embrace the notion, completely antithetical to basic First Amendment values, that the degree of protection the First Amendment affords protected speech varies with the social value ascribed to that speech by five Members of this Court. [] Moreover, as do all parties, all Members of the Court agree that the Carlin monologue aired by Station WBAI does not fall within one of the categories of speech, such as "fighting words," Chaplinsky v. New Hampshire, [] or obscenity, Roth v. United States, [] that is totally without First Amendment protection. This conclusion, of course, is compelled by our cases expressly holding that communications containing some of the words found condemnable here are fully protected by the First Amendment in other contexts. [] Yet despite the Court's refusal to create a sliding scale of First Amendment protection calibrated to this Court's perception of the worth of a communication's content, and despite our unanimous agreement that the Carlin monologue is protected speech, a majority of the Court nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanctions on Pacifica for its airing of the Carlin monologue. This majority apparently believes that the FCC's disapproval of Pacifica's afternoon broadcast of Carlin's "Dirty Words" recording is a permissible time, place, and manner regulation.

... [N]either of the factors relied on... the intrusive nature of radio and the presence of children in the listening audience--can, when taken on its own terms, support the FCC's disapproval of the Carlin monologue. These two asserted justifications are further plagued by a common failing: the lack of principled limits on their use as a basis for FCC censorship. No such limits come readily to mind, and neither of the opinions constituting the Court serve to clarify the extent to which the FCC may assert the privacy and children-in-the-audience rationales as justification for expunging from the airways protected communications the Commission finds offensive. Taken to their logical extreme, these rationales would support the cleansing of public radio of any "four-letter words" whatsoever, regardless of their context. The rationales could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible.

In order to dispel the spectre of the possibility of so unpalatable a degree of censorship, and to defuse Pacifica's overbreadth challenge, the FCC insists that it desires only the authority to reprimand a broadcaster on facts analogous to those present in this case, which it describes as involving "broadcasting for nearly twelve minutes a record which repeated over and over words which depict sexual or excretory activities and organs in a manner patently offensive by its community's contemporary standards in the early afternoon when children were in the audience." ... To insure that the FCC's regulation of protected speech does not exceed these bounds, my Brother Powell is content to rely upon the judgment of the Commission while my Brother Stevens deems it prudent to rely on this Court's ability accurately to assess the worth of various kinds of speech. For my own part, even accepting that this case is limited to its facts, I would place the responsibility and the right to weed worthless and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications worthy of its attention from a marketplace unsullied by the censor's hand.

... It is quite evident that I find the Court's attempt to unstitch the warp and woof of First Amendment law in an effort to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous as well as lamentable. Yet there runs throughout the opinions of my Brothers Powell and Stevens another vein I find equally disturbing: a depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.

... The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not many, of the innumerable subcultures that compose this Nation. Academic research indicates that this is indeed the case. [] As one researcher concluded "[w]ords generally considered obscene like 'bullshit' and 'fuck' are considered neither obscene nor derogatory in the [black] vernacular except in particular contextual situations and when used with certain intonations."

... Today's decision will thus have its greatest impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court's view as to which words or expressions are acceptable and who, for a variety of reasons, including a conscious desire to flout majoritarian conventions, express themselves using words that may be regarded as offensive by those from different socio-economic backgrounds. In this context, the Court's decision may be seen for what, in the broader perspective, it really is: another of the dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.

... Pacifica, in response to an FCC inquiry about its broadcast of Carlin's satire on " 'the words you couldn't say on the public... airwaves,' " explained that "Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words."[] In confirming Carlin's prescience as a social commentator by the result it reaches today, the Court evinces an attitude toward the "seven dirty words" that many others besides Mr. Carlin and Pacifica might describe as "silly." Whether today's decision will similarly prove "harmless" remains to be seen. One can only hope that it will.

C. CONTENT REGULATION

National Indian Brotherhood v. Juneau

[1971] F.C. 498 (T.D.)

[On May 26, 1971, the Executive Committee of the CRTC passed a resolution that it was not satisfied it was in the public interest to hold a public hearing on applicants' complaint that a film proposed to be telecast by the CTV network was defamatory of Indians. Applicants applied to the Federal Court for certiorari to review the proceedings of the CRTC concerning their complaint and for mandamus to compel the CRTC to hold a public hearing on their complaint.]

Walsh, J.

...Some time in March 1970 the CTV Network screened the film entitled "The Taming of the Canadian West" which, according to the applicants, is blatantly racist, historically inaccurate, and slanderous to the Indian race and culture. Applicants first communicated with the Ontario Human Rights Commission which arranged a private screening of the film but was unable to arrange a meeting between representatives of the CTV Network and the Indians to discuss the areas of compliant and could not compel any action by the CTV as this was a matter within federal jurisdiction. A brief was then prepared and supported by applicants' consultants, Dr. E.S. Rogers, Curator of Ethnology, Royal Ontario Museum, and Mrs. Norma Sluman, an historical consultant, point out the misinformation and historical inaccuracies in the film and this brief was filed with the Canadian Radio-Television Commission on June 22, 1970.

[The CRTC refused to hold a public hearing and communicated its decision to the applicants on the following terms]:

According to well established practice and tradition in broadcasting in Canada, the licensee of a broadcasting undertaking is responsible for the programmes he broadcasts. This policy is reiterated in section 2 of the 1968 Broadcasting Act.

The Commission firmly believes that this policy is of vital importance to the maintenance of the right to freedom of expression in the Canadian Broadcasting System. A decision to suspend the broadcast of a programme or to conduct an investigation into a single programme such as the Taming of the Canadian West is a most serious one.

Your letter of May 21, 1971 is the first notice to the CRTC that you wish the complaints of your clients to be considered under section 19 of the Broadcasting Act at a public hearing. In light of the matters raised above, and the willingness expressed by CTV to meet to discuss the programme, the executive committee is not satisfied that it would be in the public interest to hold a hearing on your clients' complaint....

Reading the Act as a whole [], I find it difficult to conclude that Parliament intended to or did give the Commission the authority to act as a censor of programmes to be broadcast or televised. If this had been intended, surely provision would have been made somewhere in the Act giving the Commission authority to order an individual station or a network, as the case may be, to make changes in a programme deemed by the Commission, after an inquiry, to be offensive or to refrain from broadcasting same. Instead of that, it appears that its only control over the nature of programmes is by use of its power to revoke, suspend or fail to renew the licence of the offending station.

Basing himself on the generalized statements in the Act under the heading "Broadcasting Policy for Canada" and, in particular, sections 3(b) and 3(g)(iv) (supra), applicants' counsel argued strongly that it was the duty of the Commission to ensure that the Canadian broadcasting system should be effectively owned and controlled by Canadians "so as to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada" and that the national broadcasting service should "contribute to the development of national unity and provide for a continuing expression of Canadian identity". Even if one were to assume that the programme in question was so offensive as to constitute an infringement of these policies,... these sections are not intended to apply to each and every programme but to broadcasting policy as a whole. Section 3(b), for example, refers to the ownership and control of Canadian broadcasting system by Canadians so as to safeguard the policies therein set out, while section 3(g)(iv), stating that the national broadcasting service should contribute to the development of national unity and provide for a continuing expression of Canadian identity, appears to be referring to the service as a whole. Even section 16 of the Act, dealing with the powers of the Commission respecting the issuing of licences... limits this to the purposes of giving effect to section 3(d), which is merely a section providing that the programming should be varied and comprehensive and provide reasonable balanced opportunities for the expression of differing views on matters of public concern and be of high standard, using predominantly Canadian creative and other resources. Here again it is apparently the general programming that is being referred to and not any individual programme and, in any event, as already stated, the only sanction provided would be the revocation, suspension or refusal to renew the licence if a programme did not comply with this regulation.

Section 3(c) of the Act, under the heading "Broadcasting Policy for Canada" sets forth:

3. It is hereby declared that

This seems to impose a sort of self-censorship on the individual licensees which is, in practice, not very effective and does not prevent them from producing from time to time programmes which are in poor taste or offensive to a substantial number of viewers. So long as they do not infringe on laws relating to slander, libel or obscenity, they are apparently on safe ground as there is nothing in the Act which gives the CRTC the right to act as censor of the contents of any individual programme....

Application dismissed.

Les Entreprises de Radiodiffusion de la Capitale Inc. (CHRC Quebec)

CRTC Dec. 90-772

Following a Public Hearing commencing 13 March, 1990 in Montreal the Commission renews the broadcasting licence for CHRC Quebec from 1 September, 1990 to 31 August, 1991, subject to the conditions specified in this decision... .

The Commission's decision to limit the new licence term to a period of one year reflects its serious concerns with the licensee's flagrant failure to meet the requirement set out in the Broadcasting Act (the Act) for the provision of high quality programming (the high standard requirement) in cases involving certain on-air comments made by Andre Arthur as host of CHRC programs. The Commission also has serious concerns regarding the licensee's performance in response to the Act's requirement that there be balance in the discussion of matters of public concern (the balance requirement) in the context of certain events since brought to its attention, again involving the on-air behaviour of Andre Arthur on CHRC. These events that have led to the Commission's present decision are dealt with later. In addition to the one-year renewal, the Commission's concern with the licensee's performance is reflected in the conditions of licence set out at the end of this decision. Through these conditions, the Commission will be in a better position to monitor closely the licensee's performance. These conditions are intended to make the licensee correct its failings; otherwise, the Commission will be called upon to consider what other stricter measures should be applied.

The Commission intends to review the licensee's performance in response to the concerns expressed in this decision when it considers CHRC's next licence renewal.

I. BACKGROUND

On 22 May 1985, the Commission approved applications by Les Entreprises for authority to acquire the assets, and for a licence to continue the operation, of CHRC []. In that decision, the Commission noted its discussions with the licensee regarding the station's editorial policy and the measures proposed by the licensee to ensure that its news, public affairs and open-line programming are of high quality and provide for the balanced expression of differing views; the Commission made it an expectation that the licensee adopt specific guidelines in this regard, and furnish a copy of these guidelines to the Commission.

In June 1985, the licensee submitted its "Statement of Guidelines for Open-Line, News and Public Affairs Programming". With respect to open-line programs, the licensee's guidelines stipulated that they "must exist solely for the purpose of serving the public interest". With regard to program quality, the licensee stated that it would rely upon the work and competence of its research teams, as well as on the careful verification of all incoming calls before they are broadcast. The licensee noted that the hosts of these programs regularly consulted with specialists in order to gain a better understanding of the issues to be discussed, and that on-air staff were carefully supervised to ensure that they "perform their work in an objective manner and treat the public with respect".

Nevertheless, the licensee's performance as regards its open-line programs was such that it was called to appear... for consideration of its renewal application. Subsequently, in renewing the CHRC licence for 20 months, the Commission stated:

Owing to the fact that the licensee places great emphasis on open-line programs,... the licensee is required to submit to the Commission new guidelines and any other control measures it proposes specifically tailored to this type of programming and that respond to the concerns that have arisen over the existing licence term.

Pursuant to the Commission's decision dated 23 December, 1988, the licensee submitted, in March 1989, a set of proposed guidelines for open line programs. After receiving the Commission's comments, the licensee submitted amended guidelines... While the licensee remained clearly answerable to the Commission for any failure to meet the requirements relating to high standard and balance occurring before that date, it now became responsible as well for adherence to its own guidelines following their acceptance by the Commission.

It was against this background that the Commission considered the application for renewal of CHRC's current licence, expiring 31 August, 1990.

II. FREEDOM OF EXPRESSION

The Commission fully recognizes that the most important issue raised by this decision is freedom of expression on the airwaves, and what limits to such freedom are reasonable in the circumstances...

The Commission, having due regard for each of these provisions, must interpret and determine the appropriate application of the requirements for high standard and balance set out in paragraph 3(d) of the Act, as follows:

(d) the programming provided by the Canadian Broadcasting System should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the programming provided by each broadcaster should be of high standard, using predominantly Canadian creative and other resources;

Section 1 of the Charter makes it readily apparent that the rights and freedoms listed therein are not absolute in this country, nor have they ever been for that matter. Freedom of expression in Canada is thus not without restriction. The above-mentioned provisions of the Act [s. 3(a), (c), (d)] unequivocally attest to Parliament's intent that, in supervising the use of radio frequencies, which are public property and limited in number by the radio spectrum, the greatest possible emphasis be given to the affirmation of the right to freedom of expression, subject to the requirement for programming of high standard and subject to achieving an intelligent harmony with the requirement for balance in the discussion of matters of public concern.

The Commission, whose challenging responsibility it is to apply the Act in a manner that respects fully the, recognizes, shares and accepts as healthy the instinctive and deeply held scepticism with which Canadians greet any attempt to limit freedom of expression by those who would dictate or impose values as to what constitutes truth, beauty, goodness or justice.

The Commission is therefore wholly committed to exercising the strongest possible bias in favour of freedom of expression. ...

He who knows only his own side of the case, knows little of that.

Print media are privately owned and provide, in theory, for unlimited access. Frequencies are, in contrast, both a public property and a scarce resource. These features undoubtedly have an essential bearing upon the exercise of freedom of expression over the airwaves and this translates into a unique framework. Persons licensed by the Commission to make use of these public frequencies, and the powerful means of communication they represent, are, in fact invested with the trust of Canadians, and thus occupy positions involving a particularly onerous responsibility. The framework applicable to the exercise of freedom of expression is imposed through specific statutory requirements for high standard and balance, and licensees must ensure that this framework is respected in their programming.

In the Commission's view, the right to freedom of expression is to be favoured to the full extent that the high standard and balance requirements allow.

The Commission must examine the particular circumstances of each individual case, taking into account the vital freedom of fair and vigorous comment. Moreover, the Commission is not prepared to conclude that the limits to freedom of expression have been overstepped in cases other than those of the most flagrant excess; in grey areas, where it is not obvious that the requirement of high standard has been breached, the Commission will settle in favour of freedom of expression. The aim is to provide a minimum level of protection to persons in situations where freedom of expression, a very powerful freedom when exercised using the public airwaves, comes at their expense.

The Commission believes that Parliament's clear intent in requiring the provision of reasonable and balanced opportunity for the expression of differing views on matters of public concern was to ensure that listeners and viewers have access to a variety of views on these matters, such access itself serving to promote freedom of expression on the airwaves.

III. REPRESENTATIONS CONCERNING CHRC

Using the above as its framework, the Commission considered the complaints and interventions on the public file of CHRC's licence renewal application. The Commission received 71 interventions supporting renewal of CHRC's licence, many apparently the result of a campaign to obtain such support conducted by CHRC. Among the several petitions submitted, one contained more than 5,500 signatures. One intervenor supporting renewal of the licence, Simon Wilson, appeared at the hearing. Four interventions in opposition to CHRC's licence renewal were presented at the hearing, namely those by the Quebec Urban Community (the Urban Community), Mrs. Margaret Delisle, Mayor of the City of Sillery, the daily newspaper Le Soleil and the Surete du Quebec (the Quebec Police Force). ...

IV. SPECIFIC INCIDENTS EXAMINED AND ASSESSED

In the present case, the Commission considers it necessary to focus on certain specific incidents contained in the public record pertaining to CHRC's licence renewal application, and to state its position on these incidents in relation to the high standard requirement and the balance requirement, with any conclusion as to the violation of either being, for all intents and purposes, self-evident. All of these situations involve Andre Arthur and are addressed below.

A. Assessment of specific incidents in relation to the high standard requirement.

Complaint by the Quebec Police Force concerning the Pont-Rouge incident

In this case, the Quebec Police Force filed a complaint with the Commission after Mr. Arthur, making reference to "rather incredible rumours" concerning the drowning deaths of a mother and her child, implied on the air that "the [Quebec Police Force] divers, having found the mother and the child, secured the child's body to the bottom of the river, and retrieved the body of the mother in order to have it appear as if they were searching for three more days because it looked good on television". In discussions of this matter with the licensee, including those held the licensee, through its host Andre Arthur, was not simply using the phrase "rather incredible rumours" as an artificial and expedient means of allowing discussion of a matter whose accuracy had not been nor could be verified. Obviously, there is no question of obliging the licensee and/or Andre Arthur to reveal, if applicable, the source(s) of the information in question; rather, the Commission must be fully convinced that the necessary precautions had been taken prior to broadcast of the information. The Commission considers it incumbent upon the licensee to submit satisfactory evidence regarding the basis of the "rather incredible rumours". In the absence of such evidence, the Commission cannot accept that Andre Arthur had any legitimate reason to speak of the rumours in question during a CHRC broadcast, rumours of undeniable harm to the Quebec Police Force, and lacking the most basic consideration for the family of the drowned mother and child. In the circumstances, the Commission must assume that the licensee was in clear violation of the high standard requirement.

Complaints by Jacques Beaudoin of 6 April and 12 September, 1989 concerning remarks about Mr. Beaudoin by Andre Arthur during CHRC broadcasts.

These complaints concern remarks made by Andre Arthur on CHRC on 8 March and 5 September, 1989. The commission considered the following remarks from a commentary by Andre Arthur on 8 March, 1989 on CHRC:

Obviously, when you've been the Chief of the Quebec Police Force and you have everything you need to blackmail Politicians -- you know the little girls they've slept with, and the little boys they've slept with; you know where they did this or that, it's easy to find a job afterwards. But not everyone is as lucky as Jacques Beaudoin.

On 5 September 1989, Andre Arthur repeated similar comments on CHRC. This time, after stating that Mr. Beaudoin was in a position to blackmail politicians, he took the precaution of adding "I'm not saying he does it", and continued with the same type of commentary as quoted above.

Even though wishing to give the freest possible rein to freedom of expression, the Commission cannot condone the broadcast of insinuations that are so malicious and damaging. These insinuations clearly violate the high standard requirement.

Comments by Andre Arthur on CHRC concerning a Quebec vocal artist

In particular, the intervention by Le Soleil drew the commission's attention to the following remarks by Andre Arthur on CHRC on 16 January 1990, concerning a Quebec vocal artist:

[name of person] was raped when she was 13; that was her last chance.

This hurtful and malicious comment denies the repugnant nature of the crime of rape. It effectively renders the author of the statement and the licensee accomplices in trivializing a crime whose effects on women, its most immediate victims, and ultimately on society in general, are greatly damaging and profound. It is a flagrant violation of the high quality standard and deserves the Commission's unhesitating condemnation.

Remarks by Andre Arthur on CHRC, broadcast on 20 February, 1990, concerning Mr. Roland Bourget, Chief of the Public Safety Department of Sainte-Foy and Mr. Pierre Leclair, the Director of Communications of the Montreal Urban Community Police Department and now Assistant Director, Operations, of the Public Safety Department of Sainte-Foy.

As a result of the intervention by the Quebec Police Force the Commission learned of statements by Andre Arthur on CHRC on 20 February, 1990, concerning Mr. Roland Bourget and Mr. Pierre Leclair. On this occasion, Andre Arthur reported the possibility of Mr. Leclair becoming Mr. Bourget's "right-hand man" on the Sainte-Foy police force. At the end of his commentary, Andre Arthur stated the following:

When Mr. Bourget let it be known that Mr. Leclair might be coming to Quebec City to be his right hand man, you just can't help perceiving such an action to be absolutely and incredibly brazen on both their parts. Consider the facts. Not so long ago, there was a dreadful massacre at Ecole Polytechnique, and one of the victims was the daughter of Mr. Leclair, Director of Public Relations for the Montreal Urban Community Police Department. We found out two things later, though: Mr. Leclair's daughter was probably one of the last ones to be killed during the rifle fire, and she was stabbed as well because it seems the madman knew who she was. While Mr. Leclair's daughter was being executed by this lunatic at the Polytechnique, the police officers at the door didn't enter the building, in line with the new orders they were given by Roland Bourget after the Gosset affair. This guy would then accept a job in Sainte-Foy from this same Roland Bouret. Either you do not have much heart or one of the two thinks he owes the other a big debt.

It's really funny to see that debts like that are going to be paid with money from Mayor Boucher's taxes. What do you think she'd have done if she had been in the opposition?

These remarks speak for themselves. They show a shocking lack of consideration on the part of Andre Arthur, and consequently on the part of the licensee, for the undoubtedly cruel suffering of Mr. Pierre Leclair and his family following a tragedy that shook Quebec and Canada. The Commission believes that, under the high standard requirement, such behaviour on the part of those entrusted with the use of frequencies that Parliament has declared to be public property is unconscionable - and, therefore, not of high standard.

Remarks by Andre Arthur concerning Mrs. Margaret Delisle, Mayor of Sillery

As a result of the intervention by Mrs. Delisle, the commission learned of the following remarks made about her by Andre Arthur on 5 December 1989 when, during a CHRC broadcast, he openly challenged the reasons underlying her position on Sillery's water supply:

Perhaps Mrs. Delisle had made prior commitments to people at the time when she was persuaded that the river was preferable; perhaps she had made commitments to certain engineering firms that had come recommended by certain legal firms. After all, the professional circles in cities are highly structured and very well organized. For example, Mrs. Delisle's husband is himself a lawyer who works for a firm specializing in municipal law; he is therefore in contact with architectural firms, engineering firms and town planning firms. These people all know one another and see each other at conventions. Is it possible that Mrs. Delisle, at the time when she considered the river to be the best solution, made a number of moral commitments to certain firms, so that one day there would be a nice plant in Sillery?

In effect, Andre Arthur clearly cast doubt on the honesty of Mrs. Delisle and her husband, yet avoided having to provide any basis whatsoever to support his statements. This is an insidious and unacceptable attack against individuals, and is incompatible with the high standard requirement.

B. Assessing the incidents in relation to the balance requirement

... In light of the representations of the Urban Community and of Mrs. Delisle, the Commission considers that the licensee has failed to demonstrate conclusively that it ensured balance in the discussion of the matters of public concern in question during the programs hosted by Andre Arthur. The Commission therefore continues to have serious concerns regarding these specific incidents.

V. THE LICENSEE'S POSITION

At the hearing, the licensee was asked on a number of occasions to take a position on the complaints it received arising from on-air remarks by Andre Arthur during CHRC broadcasts. With regard to the specific situations examined above, whether in relation to the high standard requirement or balance requirement, the licensee has refused to acknowledge any violation whatsoever of either. It should also be noted that the licensee has in no other manner signalled the slightest acceptance that there might be a problem as regards either high standard or balance. At the hearing, it appeared that the licensee, for all intents and purposes, considered the mere existence of its guidelines, approved by the Commission, as a full and automatic guarantee against any violation of the high standard or balance requirement in CHRC broadcasts. As for high standard in particular, the licensee placed considerable emphasis on CHRC's budget for news and public affairs, as if to suggest that the money spent in this area should safely protect the station against any failure to meet this requirement. The licensee's attitude before the Commission was one of total inflexibility. It either saw no problem, or refused to agree that one existed.

The Commission, however, is convinced that a serious problem does exist regarding the licensee's performance in meeting the high standard requirement, and the existence of this problem forms the basis for its decision, stated above, to renew the applicant's licence for one year only. The Commission also has serious concerns regarding the station's compliance with the balance requirement. As a consequence of this problem and these concerns, the Commission has decided to impose particular licence conditions upon the licensee... .

VI. CONDITIONS OF LICENCE

1. In light of the Commission's concern regarding compliance with the balance requirement and the licensee's concern regarding the use of recordings not made by it, it is a condition of licence that the licensee retain logger tapes of all CHRC broadcasts for a period of six (6) months from the date of broadcast.

2. Regarding the objectionable comments of Andre Arthur on CHRC concerning various persons, it is a condition of licence that the licensee inform the Commission of any judgements or settlements regarding defamation actions taken against it and/or its host, Andre Arthur, as a consequence of on-air remarks by Andre Arthur during CHRC broadcasts.

3. Within the framework of the Act and the Radio Regulations, 1986, it is a condition of licence that the licensee adhere strictly to the requirements of its guidelines approved by the Commission on 13 October 1989, and to provide a copy of these guidelines to any interested party upon request. In the Commission's view, these guidelines serve a useful purpose in defining more accurately the scope of the high standard and balance requirements.

4. In order to render the licensee's guidelines truly effective, it is a condition of licence that the licensee file with the Commission, within sixty (60) days of the date of this decision, amended guidelines specifying the manner in which all persons mentioned on the air are to be treated, whether they are present in the studio or not, taking into account the basic respect owed to such persons in conformity with the high standard requirement. The amended guidelines, once approved by the Commission, shall replace the guidelines approved on 13 October 1989, and adherence to them shall be a condition of licence. moreover, copies shall be provided by the licensee to any interested party upon request.

5. It is a condition of licence that the licensee inform its audience of the existence of the guidelines referred to in condition of licence #3 above and, as of their effective date, those referred to in condition #4. This shall be accomplished through an announcement of at least 30 seconds duration and in a form approved by the Commission, and broadcast by CHRC-daily, Monday to Friday, immediately following the 8:00 a.m. newscast or, in the absence of such newscast, at 8:00 a.m. In particular, the announcement shall mention that a copy of the guidelines will be provided by the licensee to all interested parties upon request.

6. It is a condition of licence that the licensee adhere to the Canadian Association of Broadcasters' (CAB) self-regulatory guidelines on sex-role stereotyping, as amended from time to time and approved by the Commission.

7. It is also a condition of licence that the licensee adhere to the provisions of the CAB's Broadcast Code for Advertising to Children, as amended from time to time and approved by the Commission.

D. ACCESS TO THE MEDIA

Trieger v. Canadian Broadcasting Corp.

(1988), 54 D.L.R. (4th) 143 (Ont. H. Ct.)

Campbell J.

The application

The applicants seek an injunction or a mandatory order to force the participation of Seymour Trieger, the leader of the Green Party, in the national political leaders' debates scheduled for broadcast by the respondent television networks on October 24 and 25, 1988. The only people now scheduled to participate in that national political debate are the leaders of the three major political parties fielding candidates across the country in the forthcoming federal general election.

The position of the applicants is that if there is going to be such a national leaders' debate they have a constitutional right to be in it. They say that if they are not in it the debate constitutes a violation of their constitutional rights and should be stopped. Alternatively they seek an order requiring some similar debate or similar opportunity to get their ideas across to the public on an equal basis with the leaders of the three major parties.

Although the applicants' stated position is that they do not want to force a debate with anyone, this would be the inescapable practical impact of the order they seek, certainly at least on the main part of the application. The alternative relief would also represent a very significant interference with the plans of the broadcast networks for the coverage of matters relating to the election. ...

Basis of the application

The legal bases of the application are:

1. The requirement of the Television Broadcasting Regulations, 1987, SOR/87-49, as interpreted by the Canadian Radio-television and Telecommunications Commission (the "C.R.T.C.") in Public Notice No. 88-142 and C.R.T.C. Circular No. 334, which requires an equitable, if not equal, treatment by the broadcast media of partisan political issues and parties.

2. [Section 2(b) of the Charter.]

3. [Section. 2(d) of the Charter.].

4. [Section 15 of the Charter.]

The application of the Charter

... I am not persuaded, in this context, that either Global or CTV Television Network Ltd. ("CTV"), are exercising powers akin to government action so as to become subject to the Charter.

The merits

What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate. It is not for this court, certainly on an interlocutory application of this nature without full opportunity as at trial to canvas the facts and the legal issues, to interfere with the freedom of speech and expression of the various party leaders by dictating the debate format, content, or participants. Neither is it up to this court to dictate in any way to broadcast editors what is news and what is not news, subject of course to non-publication orders in criminal cases and a few other exceptional cases. It is up to broadcasters and editors to decide what they wish to publish. Their decisions to cover a particular event or not to cover it are matters... "within the area of journalistic discretion". Those editorial decisions do not amount to the carrying out of any government function.

There is a significant constitutional value at stake here in the freedom of the press and the other media of communication, particularly the broadcast media. The delicate balancing of their constitutional rights against the constitutional rights asserted by the applicants would involve a very complex factual process of broadcast regulation. It would require a great deal more factual material than this court has before it right now on the eve of the scheduled debate and so close to the actual time of the election itself.

As to s. 15 of the [Charter] I will say little except that I seriously doubt whether the applicants are similarly situated with the major parties. That is an essential element in the test for the application of the equality rights provisions... . In the first place the media obviously from the material here, do not consider the pronouncements of the applicants to have the same news significance to the public as the pronouncements of the leaders of the major political parties. It has been stated that it is the view of the media that one of the leaders in the three major political parties will end up after the election as the Prime Minister of Canada and the media therefore consider those three leaders more newsworthy than the applicants. In the second place I doubt that the applicants are similarly situated with the major leaders because the leaders of the major parties have not agreed to debate with the leader of the Green Party. We have on the one hand consensual participants in a scheduled debate, and on the other hand someone who wants to participate in that debate without the consent or the agreement of the other parties. ...

I should add on the question of consent that the courts do not generally make orders that cannot realistically and as a practical matter be enforced. Quite apart from the legal merits of this case it would, from a practical point of view, be idle to order a leader of a political party to debate someone whom he or she had no interest at all in debating. There is an obvious practical difficulty here that candidates and leaders cannot be forced to debate. Debates must be negotiated by agreement.

This is highlighted in this case by the letter from Mr. Morton, the president of the Global Network, [which] stated that Global and the other networks had entered into negotiations with the major parties leading to the scheduled television debate. He made it clear that it was the intention of Global to give the Green Party election coverage on the news, but that Global could not unilaterally include the Green Party in any debate. The key word here is "unilaterally". The structure of the debate is to be arrived at by consensus. It is not for the court to direct the networks to direct the leaders to accept any format, agenda or participation schedule for their debates.

The applicants say that their rights to freedom of expression are infringed by the broadcast policy and by the non-enforcement of the broadcast policy. It is by no means clear on this record that their freedom of expression requires a court to force the media to carry their views to the public. It is by no means clear on this record that any citizen's right to vote is impaired by the failure of this group to get the media attention which it sincerely and profoundly believes it requires. To make the orders sought would not promote free public discussion in political debate. It would interfere with free public discussion and political debate by forcing on unwilling participants a certain debate format. ...

In this case the applicants, in furtherance of their own constitutional rights, seek to interfere with the free right of the public and the other political leaders to uncurtailed political debate. The applicants seek to interfere with the right of the public to hear the scheduled debate and to interfere with the right of the scheduled leaders to debate whom they want and when they want. To grant the order sought would interfere with the freedom of political debate of this country, would interfere with the freely scheduled debates that are about to proceed on Monday and Tuesday and would interfere with the constitutional right of the media to decide what they think is newsworthy without having newsworthiness dictated to them by any court. ...

Application dismissed.

Royal Commission on Electoral Reform and Party Financing (Lortie Commission)

Chapter 6 - Fairness in the Electoral Process (extracts)

Access to Broadcasting

... In addition to spending limits and public subsidies, our traditio of electoral democracy includes limits on the use of certain expensive campaign activities, such as paid advertising, and on access to free-time political broadcasts. These measures help to ensure fairness in the system. In comparing western democracies, Goldenberg and Traugott concluded that the closer broadcast regulations are to creating a free market, the greater the likely imbalance in media access among opposing candidates. []

Fairness in electoral competition requires that the contenders be given reasonable access to those media channels that are likely to be most effective in carrying their arguments to voters. Since the emergence of political broadcasting, there have been numerous investigations and discussions about which contenders should have access to the air waves and how the available time should be divided among them. Over the years there has emerged a system of "regulated competition" in which "recognized political parties" are allocated broadcast time.

Forms of campaign communication

Unmediated	Partially mediated	Mediated
Paid time	Leaders debates	News coverage
Free time	Interviews shows	Public affairs
Direct mail
Telemarketing

In examining these issues, distinctions must be made among the various media. It is important to distinguish between the broadcast media, which have been regulated almost since their inception, and the print media, which have not (though they are subject to some legal restrictions of general application, such as the laws of libel and slander). It is also essential to distinguish between those forms of campaign communication that allow the parties relatively direct access to voters and those that are filtered through journalists and commentators. There is considerable demand from both parties and voters for more unmediated communication.....

The primary principle underlying political broadcasting is contained in the Broadcasting Act (1991, subsection 3(1)(i)(iv)): the programming by the Canadian broadcasting system should "provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern". This provision expresses clearly the expectation that the broadcast media will play an important role in educating voters on public issues.

The 1988 Public Notice issued by the CRTC summarizes the main principles governing the need for balance in controversial broadcasting, of which political broadcasting has been described as an "offshoot". [] The principles are:

(a) CRTC regulation, as a general rule, should not constrain or inhibit the ways and means of presenting controversial issues.

(b) Broadcasters have a responsibility to become involved in controversial issues of public concern.

(c) Broadcasters should devote a reasonable amount of air time to the coverage of controversial public issues and should provide an opportunity for the presentation of differing points of view.

(d) The public, through the presentation by broadcasters of the various points of view in a fair and objective way, should be placed in a position to make its own informed judgment on controversial issues.

(e) It is for the broadcaster in the first instance to determine what is a reasonable, balanced opportunity for the expression of differing views, subject to review by the Commission....

Once a licensee chooses to give free time, it must allocate some time to all political parties duly registered under the applicable legislation. (CRTC 1988)

The right of the public to be informed in a "fair and objective way" has been a constant theme throughout the evolution of political broadcasting in Canada. The regulatory authorities periodically remind broadcaster of their obligation to provide equitable treatment. Equitable, however, does not mean equal. It pertains to the fact that "all candidates and parties are entitled to some coverage that will give them the opportunity to expose their ideas to the public". (CRTC 1988)

The "equitable principle" applies within each of what the CRTC considers the four categories of political campaign broadcasts: paid-time, free-time, news and public affairs programs (at least to the extent that the last two categories broadcast campaign debates and constituency profiles). Although the CRTC does not provide any fixed rule on defining equity, it suggests there are signposts to help broadcasters determine whether they are indeed providing equitable election coverage. These signposts are found in the Canada Elections Act regarding factors to be considered by the broadcasting arbitrator in the allocation of paid and free time. The factors involve the percentage of seats and popular vote received by the political parties at the last general election and the number of candidates each party ran at that time....

At each federal general election, the CRTC is required, no later than three days after the issue of the writs, to prepare and send to the broadcasting arbitrator a set of guidelines regarding the applicability of the Broadcasting Act and its regulations concerning the conduct of broadcasters and network operators during a general election. Within the next two days the broadcasting arbitrator is to issue to broadcasters and network operators guidelines on time allocation under the Canada Elections Act, booking procedures for broadcast time, the aforementioned CRTC guidelines and any other pertinent matters. The information is published according to the requirements of the Canada Elections Act. The amount of time is determined by the broadcasting arbitrators under rules set out in this Act. The guidelines issued by the arbitrator apply only to political parties; the CRTC retains authority over the rules governing individual candidates and other kinds of political broadcasting....

Recommendations

Paid Time

Recommendation 1.6.16

We recommend that each broadcaster be required to make 360 minutes available in prime time (or such other time as mutually agreed on) for purchase by registered parties during the advertising period, subject to a maximum of 100 minutes for purchase by any registered party from any broadcaster.

Recommendation 1.6.17

We recommend retaining the prohibition in the Canada Elections Act against the purchase of time from broadcasting stations outside Canada during an election.

Free Time

Recommendation 1.6.22

We recommend that

(a) the current provision on the free-time political broadcasting system set out in the Canada Elections Act be abolished; and

(b) a free-time broadcasting regime be established, with programs to begin on a date after the writs to be set by the Canada Elections Commission and to end on the second day before election day, with the following characteristics:

(1) television and radio network operators, as well as specialty broadcast undertakings presenting primarily general news and public affairs programs, be required to provide to the Canada Elections Commission ten 30-minute free-time broadcasts in prime time (at least 24 minutes of which would be available to parties);

(2) networks broadcasting in French whose primary audience is in Quebec and those networks reaching a majority of Canadians outside Quebec whose primary language is French be required to provide to the Canada Elections Commission five 30-minute free-time broadcasts in prime time (at least 24 minutes of which would be available to parties); and

(3) the specific days and times of these broadcasts be mutually agreed upon by the networks and registered parties, and in the event there is no agreement by the first day of the free-time broadcasting period established by the Canada Elections Commission, the Commission be mandated to establish forthwith the specific days and times for the programs.

Recommendation 1.6.23

We recommend that

(a) participants in the broadcasts include all registered parties;

(b) the broadcasts be a magazine show format made up of party segments of approximately four minutes each; and

(c) the Parliamentary Channels be required to repeat each of the French and English broadcasts a minimum of three times, and broadcasters have the option of repeating these broadcasts except during the blackout period at the end of the election period.

Miami Herald Publishing Co. v. Tornillo

418 U.S. 241, (1974)

Burger, C.J.

The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.

In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers' collective-bargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 20, 1972, appellant printed editorials critical of appellee's candidacy. In response to these editorials appellee demanded that appellant print verbatim his replies, defending the role of the Classroom Teachers Association and the organization's accomplishments for the citizens of Dade County. Appellant declined to print the appellee's replies and appellee brought suit in Circuit Court, Dad County, seeking declaratory and injunctive relief and actual and punitive damages in excess of $5,000. The action was premised on Florida Statute § 104.-38 (1973), F.S.A., a "right of reply" statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statue constitutes a first-degree misdemeanor. ... The challenged statue creates a right to reply to press criticism of a candidate for nomination or election.

... Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for vagueness since no editor could know exactly what words would call the statute into operation. It is also contended that the statute fails to distinguish between critical comment which is and which is not defamatory.

The appellee and supporting advocates of and enforceable right of access to the press vigorously argue that government has an obligation to ensure that a wide variety of views reach the public. It is urged that at the time the First Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers. A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.

Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. In the past half century a communications revolution has [taken place.] ... The printed press, it said, has not escaped the effects of this revolution. Newspapers have become big business and there are far fewer of them to serve a larger literate population.

... The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public.

The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis... In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership.

... From this ... it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market.

Proponents of enforced access to the press take comfort from language in several of this Court's decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated Press v. United States, 326 U.S. 1, [] (1945), the Court, in rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated:

... That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. (Footnote omitted). []

... Appellee's argument that the Florida Statute does not amount to a restriction of appellant's right to speak because "the statute in question here has not prevented the Miami Herald from saying anything it wished" begs the core question. Compelling editors or publishers to publish that which "`reason' tells them should not be published" is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. [] The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting form the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellant contents, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably "dampens the vigor and limits the variety of public debate[.]"[]

... Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials-whether fair or unfair-constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

White, J., concurring.

The Court today holds that the First Amendment bars a State from requiring a newspaper to print the reply of a candidate for public office whose personal character has been criticized by that newspaper's editorials. According to our accepted jurisprudence, the First Amendment erects a virtually insurmountable barrier between government and the first media so far as government tampering, in advance of publication, with news and editorial intent is concerned. [] A newspaper or magazine is not a public utility subject to "reasonable" governmental regulation in matters affecting the exercise of journalistic judgment as to what shall be printed. [] We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we prefer "the power of reason as applied through public discussion" and remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation's press.

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.... The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free." Mills v. Alabama, supra, at 218-219, 86 S.Ct., at 1437.

Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints my not be expressed.... Any other accommodation-any other system that would supplant private control of the press with the heavy hand of government intrusion-would make the government the censor of what the people may read and know.

To justify this statute, Florida advances a concededly important interest of ensuring free and fair elections by means of an electorate informed about the issues. But prior compulsion by government in matters going to the very nerve center of a newspaper-the decision as to what copy will or will not be included in any given edition-collides with the First Amendment. Woven into the fabric of the First Amendment is the unexceptionable, but nonetheless timeless, sentiment the "liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper." []

... [T]his law runs afoul of the elementary First Amendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor. Whatever power may reside in government to influence the publishing of certain narrowly circumscribed categories of material, [] we have never thought that the First Amendment permitted public officials to dictate to the press the contents of its news columns or the slant of its editorials.

But though a newspaper may publish without government censorship, it has never been entirely free from liability for what it chooses to print. Among other things, the press has not been wholly at liberty to publish falsehoods damaging to individual reputation. At least until today, we have cherished the average citizen's reputation interest enough to afford him a fair chance to vindicate himself in an action for libel characteristically provided by state law. He has been unable to force the press to tell his side of the story or to print a retraction, but he has had at least the opportunity to win a judgment if he has been able to prove the falsity of the damaging publication, as well as fair chance to recover reasonable damages for his injury...

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