The majority of mass media institutions in the United States are owned by private businesses. Because they do not receive revenues from the government through the Corporation for Public Broadcasting, they enjoy extensive freedom from government oversight. Yet "freedom of the press," as media rights are referred to in the First Amendment to the Constitution, is not absolute.
Limitations on Media Freedom
Constraints on the media protect individuals from the harm that media might do without oversight. For instance, media outlets do not have the rights to publish or broadcast defamatory statements, known as libel and slander, respectively. To enable the government to protect the populace, there are also constraints on the publishing of government classified material.
Governing Bodies and the Regulations They Have Produced
Generally speaking, the U.S. court system oversees the print media, while the courts and a government regulatory commission called the Federal Communications Commission (FCC) oversee television and radio content.
In 1927, the Federal Radio Act created licensing procedures to allocate frequencies to radio stations under the principle that the airwaves belong to the public. The Communications Act of 1934 established the FCC, which then had seven members (now five) to monitor the public radio airwaves and to limit the number of stations a company could own. The federal agency required radio stations to apply for licenses, which were contingent upon following rules regarding political advertising, public discussion forums, and local and minority interests. When television was invented, the FCC was given the same governing authority to license and monitor television stations that broadcast over public airwaves.
The FCC has established and/or enforced several important rules including the following:
- The Equal Time Rule requires broadcasters to provide equal time to all candidates for a particular office. This regulation has become increasingly complex over the years. Today, the rule does not apply if the program is deemed pure news, and it also does not apply to documentaries that may skew to one side of an argument.
- The Right of Rebuttal requires broadcasters to offer the opportunity for political candidates to respond to criticisms. If a station airs an attack on a candidate, it must give that candidate a chance to respond.
- The Fairness Doctrine requires broadcasters to provide equal time for opposing views when a controversial program is aired. This was repealed by the FCC in 1987 after critics alleged that it placed the government in the role of editor over all controversial content.
- Indecency regulations limit what has been referred to as profane language and obscene visual content to certain hours (between 10 p.m. and 6 a.m.) when children are unlikely to be watching or listening. The Supreme Court has upheld the authority to regulate this content, and the FCC has imposed heavy fines on violators including CBS (Janet Jackson's Super Bowl wardrobe malfunction) and Howard Stern (profanity and indecency on the public airwaves).
- The Telecommunications Act of 1966 reduced the existing limits of stations a company could own to 40 for radio and 12 for television. It also enabled networks to purchase cable stations which were not subject to the same laws governing the public airwaves.
The courts have exerted similar authority over the print media via landmark Supreme Court cases. See the following three examples:
New York Times vs. Sullivan (1964) – The Court held that the First Amendment allows publication of all statements about the conduct of public officials, unless they're made with actual malice, even if they are later proven false.
Gertz vs. Robert Welch, Inc. – This case set a precedent that a private person does not have to show actual malice in order to prove libel, saying "Private persons are more vulnerable to injury, and the state interest in protecting them is correspondingly greater."
Nebraska Press Association vs. Stuart (1976) – This case set a precedent against court-ordered prior restraint (an order for the press not to print information), which the judge felt was necessary to keep the jury pool unbiased against the defendant.
Regulations in Digital Media
The issue of whether and how to regulate digital media platforms has become a hot-button topic. Net neutrality, which requires Internet service providers to enable access to all content and applications regardless of the source, without favoring or blocking particular products or websites — was the subject of a 2015 case when the Obama administration enforced regulations protecting net neutrality. This was repealed in 2017 by the FCC's "Restoring Internet Freedom" order to promote business innovation.
Another key digital media regulation issue occurred during the election of President Donald Trump and centers on protecting the American electoral process from interference through digital channels by foreign actors. Facebook CEO Mark Zuckerberg testified in front of Congress about Facebook's involvement in the matter.
As digital media evolve, the governmental structures that regulate them will have to become more sophisticated, anticipating and responding quickly to changes that threaten democracy. The landscape of media regulation is becoming more complex in the digital age as the laws of one nation will not be sufficient to protect the American public against online content that is distributed internationally. The problems will become increasingly challenging, and the need for educated, trained professionals in the media has never been greater.