19 June 2006

Radio Act of 1927

(Table of Contents)

Prior to 1927, radio communications were regulated by spotty and ineffectual legislation, mainly by the Department of Commerce. Legislation of the day made it virtually impossible to deny a broadcasting license, which led to competing radio stations effectively jamming each other's broadcasts. Hence, a primary purpose of the Act was to regulate transmission frequencies, power, and purity (fidelity) of the broadcasts.

According to one analyst (Goodman, 1999), one of the important motives of the Act was to modulate the flow of ideas on the radio. The language of the bill protects free speech, but this meant only that indirect methods would be needed to resist the menace posed by political radicalism. At the time, the Progressive Movement was fading into a narrowly populist, bureaucratizing force in American life. Its factions had become split, with White Protestants determined to restrict the political options of the comparatively new population of Southern/Central European Catholics and Jews. From the other side of the [old] political divide were industry advocates, who wished to use the regulation to build up a lucrative cluster of firms with the financial incentives to invest in new technology. Attempting to bridge this gap was then Secretary of Commerce Herbert Hoover, who was (by the standards of the time) fairly close to the later Progressives in spirit.*

The legal strategy employed by Hoover and the authors of the 1927 Act was to declare that radio was a peculiar variety of public utility insofar as it entered the domain of the household and hence imposed on the listener. The right of the listener to be protected from obscenity was then taken to extend not only to profane speech, but speech that challenged racial segregation. The Blease Amendment, which proposed to ban mention of evolution on the radio, was mercifully rejected; but Sen. Clarence Dill (D-WA) and Rep. Wallace White (R-ME), the experts responsible for crafting the bill and guiding it through Congress, reassured Congress by bluntly explaining that radio was not to be a forum for public debate. Communication via radio was to be declared a privilege, requiring access to public property (the air waves); hence, broadcasters obtained the right to access to the airwaves by sustaining the public interest. In testimony before Congress, White (the legal expert in the bill's drafting) assured Sen. Mayfield that the language of the bill would allow the exclusion of "fringe candidates" from "legal qualification" for participation in national debates. This was intended to prevent individuals from using radio as the foundation of a political power base.**

SCOTUS had already ruled that federal regulators had the power to restrict free speech if it violated the national interest:
Congress' limited concept of free speech was consistent with a decade of U.S. Supreme Court rulings, including opinions written by Justices Oliver Wendell Holmes and Louis Brandeis, two Progressives on the Court. Beginning with Schenck v. United States (39 S.Ct. 247) and Frohwerk v. United States (39 S.Ct. 249) and then in Debs v. United States (249 Federal 211) and Abrams v. U.S. (40 S.Ct. 17), the Supreme Court in 1919 upheld the constitutionality of the Espionage Act as a tool to quiet discontent against the U.S. effort in World War I. Such speech was illegal because its intent was to obstruct the draft and the war effort, Holmes argued in Schenck, Frohwerk, and Debs. The decision in Frohwerk shows the limits that the Supreme Court was willing to place on free speech, even if the danger created by free speech was only possibly a threat to the U.S. Holmes agreed the German-language newspaper that Jacob Frohwerk wrote for had made no special effort to reach draftees. He noted its circulation was so small that the paper had no means to obstruct recruiting. Holmes warned, however, that the paper represented a little breath that could "kindle a flame" in the "tinder box" of the German community, and, therefore, Frohwerk's writings were a threat to national security.
Speech believed to imply an incitement to revolutionary action was also regarded as overstepping the First Amendment guarantee. The conception that radical speech was an actionable violation of "the public interest, convenience, and necessity," was based on Progressive Movement conceptions of the latter:
Godfrey looked in his dissertation at Progressive influence on the Radio Act. He makes particular note of the Progressive roots of Sen, Clarence Dill, one of the architects of the Radio Act, and his identification with Progressive senators James Watson, William Borah, Robert La Follette, Hiram Johnson, and Burton Wheeler. According to Godfrey, one of the areas of Progressive influence was in the selection of the language "public interest, convenience, and necessity." These words were a way of balancing industrial control of radio against the potential for government censorship. To Godfrey, "The founders of the legislation sought to provide a degree of regulation that would preserve industrial freedom and the public interest."
Additionally, the independent commission (one sixth of the membership of which was appointed each year) was a format associated with Populist/Reformist legislation of the time. It was reflected, for example, in the design of the Federal Reserve Board.

Krasnow (1997) suggests that the main effect of the 1927 Act was felt in implementation. The FRC ruled that station programming was a crucial factor in establishing whether the station served "the public interest, convenience, or necessity."
In 1930, the FRC denied renewal of the license of KFKB, Milford, Kansas, on the ground that the station was being controlled and used by Dr. John Brinkley, the "goat-gland doctor," to further his personal interest. The "Medical Question Box," a program aired in three half-hour segments daily, featured Dr. Brinkley answering questions from listeners on health and medicine. In response to listener questions, Dr. Brinkley usually recommended several of his own prescriptions from his own pharmaceutical supply house. The FRC held that Brinkley's practice of diagnosing patients who he had not seen contravened the public health and safety and therefore, the public interest. It also found that he operated KFKB solely for his own private interests.
It's difficult to find fault with this decision. However, a disturbing aspect was the FRC's statement in its ruling that rejecting a renewal after the fact, i.e., because of the appellant's conduct before renewal, was prima facie not censorship.
The FRC also denied the application for renewal of license of KDEF, Los Angeles. That a station was used primarily to broadcast sermons by Trinity Methodist Church's pastor Reverend Bob ("Fighting Bob") Shuler, who attacked Jews, the Roman Catholic Church, law enforcement officials in Los Angeles, and many others. Shuler based his appeal on constitutional grounds, namely, that the FRC decision violated his First Amendment to free speech and his Fifth Amendment right to due process of law.

One of the issues before the Court of Appeals was whether the FRC's refusal to renew Shuler's license was a prior restraint under the then recently decided case of Near v. Minnesota, 283 U.S. 697 (1931), or just a post-publication punishment. The Court of Appeals concluded that while a citizen has in the first instance the right to utter or publish his sentiments, it is "upon condition that he is responsible for any abuse of the right."
Hence, SCOTUS confirmed the principle of the FRC to use its discretion in regard to programming.

Content-related issues dominated the regulatory action of the FCC; many educational broadcasters were forced off the air or compelled to shift to such low powers and schedules as to make them useless for adult education. This would appear to have reflected the franchise interests of the "successful elements of the industry" that Pres. Coolidge had advised Hoover to turn to for advise on how to regulate communiations.
* Readers unfamiliar with American politics need to understand that, beginning in the late 19th century, a conflict raged among Progressives, social democrats, and the hard left (Communists and Anarchists). The Progressives favored clean government and small enterprise; they usually tended to oppose social welfare legislation. Progressive initiatives sought to make capitalism work by preventing the growth of monopoly and by facilitating efficient public services. The Progressives eventually merged with the Republican and Democratic Parties (primarily the latter). The social democrats (a generic term of political art) included Eugene Debs' Socialist Party; years later, it would include the political wing of the AFL-CIO and Max Shachtman's SWP. The hard left favored a revolutionary overthrow of capitalism, and included the Communist and Anarchist Parties; a part of the hard left was the Industrial Workers of the World (IWW), whose members' lives were ruined by severe persecution, including lynchings and deportations.

The socialist-communist split in Western Europe and North America was supposed to have been bridged in the mid-1960's with the "New Left" seeking to create a united front against US foreign policy and racism. This was not terribly successful in North America; the hard left has, if anything, become mainly obsessed with its loathing of the social democratic tendencies of American politics (AKA "liberals"), while liberals sometimes attempt to throw the hard left to the wolves. An example of this would be the eagerness of the AFL-CIO's efforts to purge Communists from its ranks, or collude with the US State Department in purging Communists from non-US labor unions that it advised.

**In defense of White, et al., it must be noted that in Germany a virulent demagogue named Adolf Hitler had done precisely that. For contemporary attitudes about the demagogic powers of the airwaves, I recommend the George Cukor movie Keeper of the Flame, staring Spencer Tracy and Katherine Hepburn (1942).
Sources for this post: Wikipedia: "Federal Radio Commission"

Text of the Radio Act of 1927 (PDF), Mark Goodman, Media History Monographs, 1999

"The Radio Act of 1927 as a Product of Progressivism"

"The Public Interest Standard: the Elusive Search for the Holy Grail" Erwin G. Krasnow, 1997

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