The Defamation You Can't Refuse: Section 315's Prohibition on Censoring Political Broadcasts
![handle is hein.journals/hascom13 and id is 21 raw text is: The Defamation You Can't Refuse:
Section 315's Prohibition on Censoring
Political Broadcasts
by
MARTIN KASSMAN*
Introduction
Justice William 0. Douglas was fond of pointing out that the
Founding Fathers cast the first amendment in absolute terms.1 The
first amendment commands as follows: Congress shall make no law...
abridging freedom of speech, or of the press... ,2 United States citizens
do not, however, enjoy absolute freedom of speech. Subject to certain
limitations, Congress and the states may punish certain types of speech.
These include obscenity,3 fighting words,4 defamation,5 speech aimed
at and likely to produce imminent lawless action,6 and even commercial
solicitation by professionals.
A similar disparity exists between the promise of statutory language
and the reality of case law regarding broadcasters' freedom of expression.
Section 326 of the Communications Act states,
Nothing in this chapter shall be understood or construed to give the
[Federal Communications] Commission the power of censorship over
the radio communications or signals transmitted by any radio station,
and no regulation or condition shall be promulgated or fixed by the
Commission which shall interfere with the right of free speech by
means of radio communication.8
This seems like a hands-off policy. But if the free speech rights of
most people are less than absolute, the rights of radio and television
broadcasters are even narrower. For example, the Supreme Court held
in 1978 that the Federal Communications Commission (FCC) may pun-
ish a licensee for broadcasting material that is not obscene but merely
* Associate, Cooper, White & Cooper, San Francisco. B.S., Arkansas State University,
1982; J.D., University of California, Hastings College of the Law, 1988.
1. Branzburg v. Hayes, 408 U.S. 665, 713 (1972) (Douglas, J., dissenting).
2. U.S. CONST. amend. I.
3. See, e.g., Miller v. California, 413 U.S. 15 (1973).
4. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
5. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
6. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969).
7. See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).
8. 47 U.S.C. § 326 (1988).](ViewImageLocal?handle=hein.journals/hascom13&div=9&collection=journals&method=preview&ext=.png&size=3)
The Defamation You Can't Refuse: Section 315's Prohibition on Censoring Political Broadcasts
The Defamation You Can't Refuse: Section 315's Prohibition on Censoring Political Broadcasts