The ACLU’s Morris Ernst summed up the problem succinctly when he said, "So long as the [Commerce] Department can determine which individuals shall be endowed with larynxes it does not need additional power to determine what shall be said." In 1969, in Red Lion v. FCC, the Supreme Court reaffirmed the scarcity doctrine. The Court said that "broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the government....where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish." The FCC said in 1987 that it now regarded the fairness doctrine as unconstitutional, due to the "decline of scarcity", and courts are increasingly recognizing (as the Supreme Court did a few years ago in Turner Broadcasting v. FCC that a day of reckoning is coming for the scarcity doctrine. Technological improvements, such as the ability to use a narrower frequency, mean that much less of the available spectrum is used for broadcast media today than in the 1930's. Ironically, there are far more radio and TV stations in each marketplace today than there are newspapers--but an attempt to apply the Fairness Doctrine to papers based on this argument was rejected by the Supreme Court in the 1970's, in Tornillo v. Miami Herald.
Most people in this country rely on censored media for most of their information about the world--and don't realize it.
Also see pervasiveness,
the courts' other excuse for interfering in free speech in