by Jessica Ford* 

The First Amendment protects the freedom of speech and expression of both individual persons and the media. Generally, the Supreme Court analyzes First Amendment challenges to governmental restrictions on the content of speech by applying heightened scrutiny as the mechanism of constitutional review. In Red Lion Broadcasting Co. v. Federal Communications Commission, however, the Court held that some content-based restrictions on speech are acceptable in broadcasting because of the limited availability of spectrum space, or the frequencies in the electromagnetic spectrum used to transmit audio and audiovisual content. This “scarcity rationale” has subjected broadcasters to unique treatment under the First Amendment for decades, but dramatic changes in technology and media consumption—most notably the rise of multicast streaming, cable television, and digital streaming platforms—call its modern-day validity into question. This Contribution reexamines the foundations of Red Lion and argues that the Court’s 1969 reasoning cannot be squared with today’s vastly expanded and distinct media environment.

 

The First Amendment, which prohibits Congress from enacting laws “abridging the freedom of speech,” has long shaped the relationship between Americans, the media, and the state.1 It serves as a shield, barring the government from restricting speech—particularly the content of speech—by requiring courts to apply a heightened level of scrutiny when reviewing such cases.2 At the same time, the Supreme Court has recognized that the government can permissibly moderate speech without violating the First Amendment through regulations that do not differentiate among types of speech based on its content.3 However, this general framework has not been applied uniformly across all forms of media.

Broadcast media, or audio and audiovisual content transmitted through the electromagnetic spectrum, has long been treated distinctly under First Amendment jurisprudence. Through the Communications Act of 1934,4 Congress nationalized the broadcast spectrum, giving the Federal Communications Commission (“FCC”) discretion to distribute broadcast licenses “in the public interest.”5 The Supreme Court upheld this delegation of authority, reasoning that the Communications Act gave broad discretion to the FCC to supervise broadcast traffic, as well as to determine the composition of those broadcasts.6

Subsequently, in 1949, the FCC adopted the “Fairness Doctrine,” which required broadcasters to provide a reasonable opportunity for the presentation of contrasting views on controversial issues of public importance.7 The Red Lion Broadcasting Company challenged this regulation as a violation of the First Amendment, arguing that it compelled broadcasters to devote air time to parties and viewpoints it may disagree with, thereby regulating speech based on its content.8 The Supreme Court upheld this doctrine, finding that the unique technological limitations of the broadcast spectrum, specifically, the limited number of spectrum frequencies to broadcast on, justified special treatment under the First Amendment, a principle known as the scarcity rationale.9 While the Court in Red Lion Broadcasting Company v. FCC did not specify the level of scrutiny that should apply to speech restrictions on broadcasting, the Court has subsequently interpreted the Red Lion standard as a “more relaxed standard of scrutiny,” allowing for “more intrusive regulation of broadcast speakers than of speakers in other media,” including print and cable.10

Today, due to rapidly changing technology and a diverse media landscape, the scarcity rationale no longer accurately represents broadcast media and modern media consumption. Developments in technology, both within broadcasting and in other forms of media, have vastly altered the ways in which Americans consume content.11 With these considerations in mind, the current media landscape no longer justifies the lower level of constitutional review for regulation of broadcasters under the First Amendment.

To understand why the scarcity rationale no longer accurately represents broadcasting, it is crucial to unpack the concerns underlying the Supreme Court’s reasoning in Red Lion. As the Court later described, the unique physical limitations of the broadcasting spectrum allowed for greater restrictions on speech.12 The Red Lion Court described spectrum scarcity simply: When 100 stations wish to broadcast, but there are only 10 spectrum frequencies available, and each frequency can only have one broadcaster, “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.”13 In turn, the Court reasoned that the Fairness Doctrine enhanced the First Amendment’s protection of speech by ensuring that diverse viewpoints on controversial issues were presented to the public, viewpoints which otherwise might not have been heard due to spectrum space limitations, thereby preventing a small number of broadcasters from dominating public discourse.14

In the years after Red Lion, the Court seemed to continue to apply and entrench the scarcity rationale for broadcast media. In 1978, the Court reinforced the distinct First Amendment treatment of broadcasting regulation when it upheld the FCC’s rules prohibiting the broadcast of “indecent” language in FCC v. Pacifica Foundation.15 The Court clarified that the relaxed Red Lion standard remained valid because broadcast media was a “uniquely pervasive presence in the lives of all Americans” that was also “uniquely accessible to children.”16 The Court in FCC v. League of Women Voters also declined to reconsider Red Lion, but nonetheless indicated in a footnote that it might reconsider the scarcity rationale in the future if the FCC or Congress signaled that technological developments warranted a revision of broadcast regulations.17 The importance of this footnote is not to be dismissed. Even forty years ago, the Court acknowledged that the scarcity rationale might need to be reconsidered in light of changing technology.

Meanwhile, the Supreme Court has declined to apply the Red Lion decision outside the narrow broadcasting context, subjecting only broadcasters to distinct treatment under the First Amendment as compared to other forms of media. In 1974, just five years after Red Lion, the Court did not extend the Red Lion ruling to print media when it struck down a local law requiring newspapers that printed personal attacks to also print the replies of those individuals.18 Twenty years later, the Court in Turner Broadcasting Systems v. FCC expressly declined to extend the Red Lion decision to cable television.19 Cable television, as opposed to broadcast television, relies on a physical connection with a subscriber (such as a fiber-optic cable) and as a result is capable of hosting more channels.20 The Court in Turner reaffirmed that the “inherent limitations” of broadcasting technology did not extend to cable.21

Thus, Red Lion has remained valid precedent as applied to broadcast media, albeit on shaky grounds. In 1973, Justice William O. Douglas explicitly recognized that scarcity may “soon be a constraint of the past,” negating the concerns addressed in Red Lion.22 The D.C. Circuit went even further, and questioned whether technical scarcity ever justified differentiating broadcast media from other forms of media for the purposes of First Amendment review.23 Justice Ruth Bader Ginsburg, in her concurrence in FCC v. Fox Television Stations, Inc., indicated skepticism toward the continuing viability of Pacifica in light of “time, technological advances, and the [Federal Communications] Commission’s untenable rulings.”24 Justice Clarence Thomas also questioned the basis for this “deep intrusion into the First Amendment rights of broadcasters,” in part because the justifications relied on in Pacifica and Red Lion fail to “distinguish broadcast from cable.”25 Despite some uneasiness toward the scarcity doctrine, when the Supreme Court had the opportunity to reconsider Red Lion in the 2014 case Minority Television Project, Inc. v. FCC, it declined certiorari, allowing a decision favoring the FCC under the scarcity rationale to stand. 26

Thus, regardless of the enduring controversy surrounding its scarcity rationale, the Red Lion standard continues to be uniquely applied to broadcasting, permitting the government to impose content-based restrictions on broadcast speech that would not be tolerated in any other medium, by subjecting such regulations to a lower level of scrutiny.27 As such, the Supreme Court should finally reconsider the validity of Red Lion, as technological developments in broadcasting, such as multicast technology, and developments in other forms of media have drastically altered the modern media landscape. Given these advancements, it is time for the Court to treat the scarcity rationale as a relic of outdated technology and provide broadcasting the same First Amendment protections available to other forms of media.

The Supreme Court’s differential treatment of broadcasting relative to other forms of media largely rested on technological limitations that no longer exist.28 Due in part to the switch from analog to digital transmission in the early 21st Century, the number of broadcast stations has more than quadrupled since 1969, reflecting a dramatically expanded spectrum capacity.29 Furthermore, the novel capability of broadcasters to “multicast” several streams of programming on the same frequency allows a single station to provide multiple simultaneous streams of television instead of just one.30 Multicast streaming now enables far more participation in television markets, effectively invalidating spectrum scarcity concerns relating to limited spectrum space. This vast increase in broadcasting capabilities has fundamentally transformed the broadcast marketplace as it existed when the Court decided Red Lion.

Specifically, the advances in broadcast media today are analogous to the advances in cable technology that led the Court in Turner to reject lesser First Amendment scrutiny for cable.31 In Turner, the Court upheld the constitutionality of a law requiring cable companies to carry a certain number of local public broadcast stations, finding the regulation to be “content-neutral.”32 The Court in Turner, when considering the proper standard for future regulation of cable, declined to extend the relaxed Red Lion standard of scrutiny to content-based restrictions on speech in cable, drawing a distinction between broadcast and cable technology.33 Specifically, the Court highlighted the development of fiber optics and digital compression technology in cable as greatly increasing the number of speakers able to use the cable medium, distinguishing it from broadcast.34 However, this analysis mirrors modern advancements in broadcasting through multicasting capabilities.35 Further, developments in artificial intelligence might yet unlock additional opportunities for coordination and efficient spectrum transactions, freeing up even more bandwidth.36 As such, broadcasters should not be afforded less First Amendment protection than other forms of media based on outdated notions of the limitations of broadcast technology, which no longer align with modern-day realities.

Though the number of stations controlling multicast streams remains technically limited, multicast technology can mitigate remaining spectrum scarcity concerns by promoting one of the underlying goals of the Court in Red Lion: viewpoint diversity.37 Even if a single licensee is responsible for the selection of the programming of several streams, this does not mean that they are sharing the same viewpoint through each program. Indeed, if each multicast stream of television presented an identical viewpoint, then a broadcaster would have little incentive to provide several streams. Maintaining the scarcity rationale in First Amendment challenges to broadcasting regulations solely because there is not unlimited spectrum space in broadcasting is inapposite, as this logic could be applied to virtually all media, including print, where ink and paper could likewise be considered “scarce.”38 Ultimately, multicast streaming, by substantially increasing the number of viewpoints available within the same licensed spectrum, undercuts the continued viability of scarcity as a justification for lesser First Amendment protections in broadcasting.

Additionally, modern-day Americans consume content from several other sources of media beyond broadcast television and radio. In June 2025, broadcast networks made up only 18.5% of total television viewership, whereas cable took 23.4% and streaming represented 46% of television viewership.39 Further, recent studies suggest that 86% of U.S. adults receive news from a smartphone, computer, or tablet, with many of those adults accessing news or social media websites at least sometimes on their devices.40 The increased availability of cable and streaming television services, as well as internet and social media, has dramatically enhanced access to a broad variety of media sources, meaning that broadcasting is no longer the “uniquely pervasive” form of media it once was.41 Thus, the scarcity-based concerns underlying Red Lion and its progeny, that a small number of broadcasters could wield disproportionate influence over the public, are significantly diminished in the modern media ecosystem, if not totally erased.

The national media landscape has changed dramatically since the Court decided Red Lion. Within broadcast media, advances in digital transmission and multicast technology have exponentially increased the number of voices able to utilize broadcast. Additionally, the increased consumption of news and content through cable and the internet have ensured that Americans can receive many conflicting viewpoints from different sources, making the unequal treatment of broadcasting media an antiquated relic of First Amendment jurisprudence.

Moreover, even the FCC recognized that the scarcity rationale no longer accurately reflects broadcasting technology and undermines First Amendment protections for broadcasters when it repealed the Fairness Doctrine in 1987.42 Even then, the FCC acknowledged that the growth in broadcast station availability, in addition to supplementation by cable television, video cassette recorders, and satellite master antenna systems, “contribut[es] significantly to the diversity of information available to the public.”43 Specifically, the FCC stated that, “we believe that it would be desirable for the Supreme Court to reconsider its use of a constitutional standard based upon spectrum scarcity in evaluating the intrusive type of content-based regulation at issue in this proceeding.”44 In 2001, Commissioner Furchtgott–Roth reaffirmed this desire, noting that it is “ironic” that video or audio content streamed from a television or radio station could receive more constitutional protection than the “same exact content broadcast over-the-air.”45 The Court should give weight to these assertions, particularly given its own statement in League of Women Voters that acknowledgement of such a change in technology would prompt a reconsideration of Red Lion.46 Even though broadcast is now consumed as one of many parallel sources of media, alongside cable, streaming, and internet platforms, broadcasting alone is still subjected to a uniquely permissive constitutional standard for content-based regulation. As such, the government might permissibly impose speech restrictions on broadcasters that would trigger strict scrutiny in any other medium. Maintaining the scarcity rationale therefore risks preserving a doctrinal asymmetry that might be exploited by the government to chill the free speech of broadcasters.

Ultimately, advancements in broadcasting technology and other forms of media have drastically changed the landscape of broadcasting. Despite the FCC’s repeated recognition that these advancements in technology have altered the broadcast market, the Supreme Court’s reticence to overturn the outdated spectrum scarcity rationale remains a looming shadow over broadcasters, chilling their free expression. Accordingly, it is time for the Court to reject the scarcity rationale underlying Red Lion, and reconsider how to bring First Amendment protections for broadcast media in line with the modern-day realities of the media and technology landscape.

* Jessica Ford is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the problem at the 2025 National Telecommunications and Technology Moot Court Competition, hosted by the Catholic University of America, Columbus School of Law. One of the questions presented was whether the Supreme Court should reconsider Red Lion v. FCC, 395 U.S. 367 (1969), considering changes in the media landscape and advances in broadcasting technology, specifically, multicast technology. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”).

2. See United States v. O’Brien, 391 U.S. 367, 376–77 (1968).

3. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).

4. 47 U.S.C. § 151 (“For the purpose of regulating interstate and foreign commerce in communication by wire and radio . . . there is created a commission to be known as the ‘Federal Communications Commission.’”).

5. 47 U.S.C. §§ 303(g)–(l)(1).

6. Nat’l Broad. Co. v. United States, 319 U.S. 190, 217 (1943).

7. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 369–70 (1969).

8. See id. at 392–93.

9. Id. at 390.

10. Turner, 512 U.S. at 637–39.

11. See Syracuse Peace Council Against Television Station WTVH Syracuse, New York, 2 FCC Rcd. 5043, 5051 (1987) (“Not only has the number of television and radio stations increased the public’s access to a multiplicity of media outlets since 1969, but the advent and increased availability of such other technologies as cable and satellite television services have dramatically enhanced that access.”).

12. Turner, 512 U.S. at 637.

13. Red Lion, 395 U.S. at 388–89.

14. See id. at 390 (“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.”).

15. See 438 U.S. 726, 748 (1978) (“[I]ndecent material presented over the airwaves confronts the citizen, . . . where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.”).

16. Id. at 748–49.

17. See 468 U.S. 364, 376 n.11 (1984) (“We are not prepared . . . to reconsider our long-standing [scarcity rationale] without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.”).

18. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974).

19. See Turner, 512 U.S. at 638.

20. See id. at 627–28.

21. See id. at 639.

22. See Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 158 n.8 (1973) (Douglas, J., concurring) (“Scarcity may soon be a constraint of the past, thus obviating the concerns expressed in Red Lion.”).

23. See, e.g., Telecomm. Rsch. & Action Ctr. v. FCC, 801 F.2d 501, 508 (D.C. Cir. 1986) (“It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media.”); Action for Children’s Television v. FCC, 58 F.3d 654, 675 (D.C. Cir. 1995) (en banc) (Edwards, C.J., dissenting) (“[T]he scarcity of the broadcast spectrum is neither an accurate technological description of the spectrum nor a ‘unique characteristic’ that should make any difference in terms of First Amendment protection.”).

24. FCC v. Fox Television Stations, Inc. (Fox II), 567 U.S. 239, 259 (2012) (Ginsburg, J., concurring).

25. FCC v. Fox Television Stations, Inc. (Fox I), 556 U.S. 502, 531–33 (2009) (Thomas, J., concurring).

26. 736 F.3d 1192, 1195 (9th Cir. 2013) (en banc), cert. denied, 573 U.S. 946 (2014).

27. See Turner, 512 U.S. at 637–38.

28. See Red Lion, 395 U.S. at 376; see also Turner, 512 U.S. at 638–39 (“The broadcast cases are inapposite in the present context because cable television does not suffer from the inherent limitations that characterize the broadcast medium.”).

29. See Fox I, 556 U.S. at 533 (Thomas, J. concurring) (noting that the number of broadcast stations was 7,411 in 1969); FCC, Broadcast Station Totals as of June 30, 2025, Public Notice, DA-No. 25-581 (July 8, 2025) (noting the total broadcast stations as 33,532 in 2025).

30. See Zimmer Radio of Mid-Missouri, Inc. v. FCC, 145 F.4th 828, 842 n.3 (8th Cir. 2025).

31. See Turner, 512 U.S. at 638.

32. See id. at 648.

33. See id. at 638.

34. See id. at 639.

35. See id. (“[Given advancements in cable technology] soon there may be no practical limitation on the number of speakers who may use the cable medium.”).

36. See Advancing Understanding of Non-Federal Spectrum Usage, Notice of Inquiry, 38 FCC Rcd. 7216, 7234 (statement of Comm’r Geoffrey Starks) (Aug. 3, 2023).

37. See Red Lion, 395 U.S. at 390 (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . . .”).

38. Telecomm. Rsch. & Action Ctr., 801 F.2d at 508 (noting that the distinction between print and broadcast is one “without a difference” and “[e]mploying the scarcity concept as an analytic[al] tool . . . inevitably leads to strained reasoning and artificial results.”).

39. David Bauder, Broadcast TV in no man’s land as younger viewers flock to streaming—and boomers turn to Fox News, Fortune (July 16, 2025), https://fortune.com/2025/07/16/tv-networks-viewers-more-time-streaming-broadcast-cable-combined/.

40. Pew Research Center, News Platform Fact Sheet, Pew Rsch. Ctr., (Sept. 25, 2025), https://www.pewresearch.org/journalism/fact-sheet/news-platform-fact-sheet/.

41. Syracuse Peace Council Against Television Station, 2 FCC Rcd. at 5051 (“Not only has the number of television and radio stations increased the public’s access to a multiplicity of media outlets since 1969, but the advent and increased availability of such other technologies as cable and satellite television services have dramatically enhanced that access.”); Fox I, 556 U.S. at 534 (2009) (Thomas, J., concurring).

42. Syracuse Peace Council Against Television Station, 2 FCC Rcd. at 5052–53.

43. Id. at 5053.

44. Id. at 5054.

45. See Industry Guidance on Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8021 n.11 (2001) (statement of Comm’r Furchtgott–Roth).

46. See League of Women Voters, 468 U.S. at 376 n.11 (“We are not prepared . . . to reconsider our long-standing [scarcity rationale] without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.”); see also Ark. AFL-CIO v. FCC, 11 F.3d 1430, 1443 (8th Cir. 1993) (Arnold, C.J., concurring) (recognizing that FCC had given the signal referred to in League of Women Voters by abrogating the Fairness Doctrine, and that developments after Red Lion indicate the balance struck in Red Lion “would look different today”).