Privatizing the Airwaves
evidence for
Broadcasters that are running hoaxes and news distortions - also known as the fake news - have a chance now to correct course before their license renewals come up.
The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not. (FCC chairman Brendan Carr, commenting on X on news coverage of the Iran war)
Reading that reminded me of something I wrote more than fifty years ago:1
Consider a particular case where the effects of public and private property can be compared. The printed media (newspapers, magazines, and the like) are produced entirely with private property. Buy newsprint and ink, rent a printing press, and you are ready to go. Or, on a cheaper scale, use a Xerox machine. You can print whatever you want without asking permission from any government. Provided, of course, that you do not need the U.S. Post Office to deliver what you print. The government can use, and occasionally has used, its control over the mails as an instrument of censorship.
Broadcast media (radio and television) are another matter. The airwaves have been designated as public property. Radio and television stations can operate only if they receive permission from the Federal Communications Commission to use that property. If the FCC judges that a station does not operate in the public interest, it has a legal right to withdraw the station’s license or at least to refuse to renew it. Broadcasting licenses are worth a great deal of money; Lyndon Johnson’s personal fortune was built on a broadcasting empire whose chief asset was the special relationship between the FCC and the majority leader of the Senate.
Printed media require only private property; broadcast media use public property. What is the result?
Printed media are enormously diverse. Any viewpoint, political, religious, or aesthetic, has its little magazine, its newsletter, its underground paper. Many of those publications are grossly offensive to the views and tastes of most Americans—for example, The Realist, an obscene and funny humor magazine that once printed a cartoon showing ‘One Nation under God’ as an act of sodomy by Jehovah on Uncle Sam; The Berkeley Barb, a newspaper that has the world’s most pornographic classified ads; and the Black Panther publication that superimposed a pig’s head on Robert Kennedy’s murdered body.
The broadcast media cannot afford to offend. Anyone with a license worth several million dollars at stake is very careful. No television station in the United States would air the cartoons from a random issue of The Realist. No radio would present readings from the classified section of the Barb. How could you persuade the honorable commissioners of the FCC that it was in the public interest? After all, as the FCC put it in 1931, after refusing to renew the license of a station owner many of whose utterances were, in their words, “vulgar, if not indeed indecent. Assuredly they are not uplifting or entertaining.” “Though we may not censor, it is our duty to see that broadcast licenses do not afford mere personal organs, and also to see that a standard of refinement fitting our day and generation is maintained.”
The Barb does not have to be in the public interest; it does not belong to the public. Radio and television do. The Barb only has to be in the interest of the people who read it. National Review, William Buckley’s magazine, has a circulation of about 100,000. It is purchased by one American out of two thousand. If the other 1,999 potential readers think it is a vicious, racist, fascist, papist rag, that is their tough luck—it still comes out.
The FCC recently ruled that songs that seem to advocate drug use may not be broadcast. Is that an infringement of freedom of speech? Of course not. You can say anything you want, but not on the public’s airwaves.
When I say it is not an infringement of free speech, I am perfectly serious. It is not possible to let everyone use the airwaves for whatever he wants; there is not enough room on the radio dial. If the government owns the airwaves, it must ration them; it must decide what should and what should not be broadcast.
The same is true of ink and paper. Free speech may be free, but printed speech is not; it requires scarce resources. There is no way that everyone who thinks his opinion is worth writing can have everyone in the country read it. We would run out of trees long before we had enough paper to print a hundred million copies of everyone’s manifesto; we would run out of time long before we had finished reading the resultant garbage.
Nonetheless, we have freedom of the press. Things are not printed for free, but they are printed if someone is willing to pay the cost. If the writer is willing to pay, he prints up handbills and hands them out on the corner. More often, the reader pays by subscribing to a magazine or buying a book.
Under public property, the values of the public as a whole are imposed on the individuals who require the use of that property to accomplish their ends. Under private property, each individual can seek his own ends, provided that he is willing to bear the cost. Our broadcast media are dull; our printed media, diverse.
Could this be changed? Easily. Convert the airwaves to private property. Let the government auction off the right to broadcast at a particular frequency, frequency by frequency, until the entire broadcast band is privately owned.
(The Machinery of Freedom, 1973. Chapter 1: In Defense of Property.)
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One of the peculiarities of history is that spectrum was quickly declared to be public property, and the First Amendment was not applied to it, but later on, Internet communication was assimilated to "speech" and "the press." I'm not sure what changed, politically or intellectually, to make the difference.
I cannot recommend too highly Thomas Hazlett's Political Spectrum (read a review here: https://www.hoover.org/research/how-electromagnetic-spectrum-became-politicized). Among other things, I learned that Herbert Hoover, as Commerce Secretary in 1927 before becoming President, was behind the creation of the FCC to allocate the radio spectrum as public property just at the time the courts were beginning to recognize a private property interest in that same radio spectrum, at the behest of the cronies who owned the new radio networks. FCC creation included the basis for the equal time nonsense and requiring stations operate in the public interest.
Note: private property radio spectrum is no more incompatible with reserving various bands for the military, airplanes, emergency responders, and so on that is reserving property for military bases and national parks.