The Constitutional Case against “Free” Airtime

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Sen. John McCain (R-Ariz.) plans to revive hisfree airtime bill for the 108th Congress. The proposedlaw forces broadcasters to cover politicalcampaigns and to subsidize advertising for candidates.Normally such legal restraints on editorialdiscretion would run up against FirstAmendment protections for the media.

Advocates of "free" airtime argue that thecourts have long recognized that similar regulationson the media may pass constitutionalscrutiny. Broadcasters do not actually own theirslice of the spectrum but rather lease it from thefederal government. The government has traditionallyimposed "public interest" obligations onbroadcasters in exchange for the original license.The free airtime requirements are seen as anadditional "public interest" mandate.

The legal justifications offered for free airtimeshould not be accepted. Scarcity no longer marksbroadcasting in the United States. Free airtime isnot a price paid for use of the spectrum. The governmentdoes not own the spectrum. It does notregulate the content of newspapers because theyuse sidewalks to deliver their product. The broadcastershave created almost all the value of thelicenses since 1927. Free airtime is less a payback forusing the spectrum than an open-ended effort byCongress to extract favors from the broadcastingindustry. Free airtime also places an unconstitutionalcondition on receiving a broadcastinglicense. The proposal transfers the burden of fundingcampaigns from supporters of candidates tocommercial broadcasters, an unconstitutionaltransfer of wealth under the Fifth Amendment.

Laurence H. Winer

Laurence H. Winer is a visiting professor at the Brooklyn Law School in 2002-03 and professor of law and faculty fellow at the Center for the Study of Law, Science and Technology, Arizona State University College of Law.