The First Amendment Implications
of Internet-Only Radio on Campus
Department of Media, Journalism and Film
Southwest Missouri State University
901 S. National Ave.
Springfield, MO 65804
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2115 S. Oak Park
Springfield, MO 65807
Paper submitted to Radio-Television Journalism Division
for Association for Education in Journalism and Mass Communication
annual conference in Kansas City, 2003
The First Amendment Implications
of Internet-Only Radio on Campus
Over-the-air broadcasters at public college and university campus are
subject to content regulation both by administrators and the FCC, while
print media on those campuses are free from regulation. The development of
Internet-only radio presents a constitutional question. This paper finds
that court rulings have determined that university officials can engage in
view-point neutral content regulation of campus computer systems because
those systems are not traditional public forums.
The First Amendment Implications of Internet-only Radio
The First Amendment Implications
of Internet-Only Radio on Campus
Radio stations have been operating as part of college and university
campuses for nearly 90 years, and for the past three-quarters of a century
there's been little doubt that over-the-air broadcasters are regulated by
the Federal Communications Commission (Brant, 1981). In the past few years,
however, would-be broadcasters at a number of schools have found a way to
get their messages out without having to deal with federal licensing and
FCC content regulations.
At a number of schools, Internet-only radio, which does not use
over-the-air signals, has enabled "stations" to distribute programming
through computer connections without seeking FCC permission. Babson College
Radio at Babson College of Massachusetts claims on its web site that it was
the first college Internet-only radio station (History, 2003). Although
there are no reliable sources for determining how many public college and
university campuses have Internet-only radio, the anecdotal evidence is
plentiful that the trend is growing. The University of Texas at Arlington
alumni publication reports that the campus Internet-only radio station, UTA
Radio, is available 24 hours a day, seven day a week ("No wattage
required," 2002). The Growl is available on the Internet only from
Southwest Missouri State University. California State University-Long Beach
provides K Beach only to Internet listeners. Blazeradio is run on the
Internet by students at the University of Alabama at Birmingham.
The FCC regulates over-the-air broadcasting through the rationale of
spectrum scarcity; because radio and television stations use the public
airwaves in sending out their programming, and because of the limited
spectrum for distributing those signals, Congress and the courts have given
the FCC the authority to regulate content to ensure that the public is
being served by those broadcasters. At the same time, the courts for the
past 30 years have prohibited content regulation of print media on public
college campuses because they are protected by the First Amendment. In
addition, the U.S. Supreme Court ruled in Reno v. ACLU (1997) that the
Internet cannot be held to the same content standards as broadcasting. The
Communications Decency Act had attempted to prohibit indecent (but not
obscene) content on the Internet, as the FCC has done in broadcasting (FCC
v. Pacifica, 1978). In its decision, the Court wrote, "As a matter of
constitutional tradition, in the absence of evidence to the contrary, we
presume that governmental regulation of the content of speech (on the
Internet) is more likely to interfere with the free exchange of ideas than
to encourage it. The interest in encouraging freedom of expression in a
democratic society outweighs any theoretical but unproven benefit of
censorship" (p. 886).
If over-the-air broadcasting can be regulated but print cannot, and if the
Internet deserves protection from government regulation. then the existence
of these Internet-only radio stations distributed through a university's
computer system presents an interesting legal question: can a public
college or university administration regulate the content of
student-produced content that is made available over the Internet using
university resources? Because privately financed colleges and universities
are not subject to all of the strictures of the First Amendment, this paper
will focus solely on publicly funded campuses.
Hundreds of over-the-air broadcasters on public college and university
campuses also have Internet versions, but when those Internet outlets
simply simulcast the on-air signal, the FCC still has jurisdiction over the
on-air station. Several researchers have looked into the web presence of
over-the-air commercial and educational radio stations, although no
published studies have examined Internet-only radio.
Redmond, in a 1996 study of nearly 1,500 radio and television station Web
sites, found that only a small percentage of stations were providing
significant news or public information and that most found the Internet to
be primarily a promotional tool (Redmond, 1997). McClung (2001) examined
the Web sites of 26 over-the-air college radio stations and also consumer
use of web sites of those and other over-the-air college radio stations,
focusing on why people listen to the Web sites instead of the stations.
Lind and Medoff (1999) surveyed 419 radio industry professionals
responsible for maintaining Web sites and reported that no more than 40
percent of commercial over-the-air radio stations also had a Web presence.
While researchers have yet to explore Internet-only radio on public
college campuses, radio on campus has been around for more than 90 years.
Higher education and broadcasting have been intertwined since the earliest
days of experimental broadcasting. Cornell University in New York State and
St. Joseph's College in Philadelphia were among the first to experiment
with radio in the 1910s and 1920s, and the University of Wisconsin was
granted a license in 1915 for radio station 9XM, the forerunner of WHA and
believed to be the first educational radio station in the United States.
Other educational radio stations soon followed, including those operated by
the University of Illinois, the University of Iowa, Ohio State University,
Purdue University and Tulane University (Brant, 1981).
Radio stations flourished on the nation's college and university campuses,
with 202 AM stations licensed from 1920 to 1936. By 1937, though, just 38
were still broadcasting because of the high cost of operating a radio
station. The number stayed low through the ensuing decades, with just 25
licensed educational AM stations in 1972 (Brant, 1981).
The Radio Act of 1927 and the Federal Communications Act of 1934 made no
special provisions for education-affiliated stations, making them subject
to the same regulations as their commercial counterparts. (FCC v. League of
Women Voters, 1984) In 1939, the FCC decided to allocate a portion of the
spectrum to educational stations, recognizing that they operate in a
different manner than do their commercial counterparts.
FM radio stations began to emerge as the primary source of
educational-sponsored broadcasting, especially after the Federal
Communications Commission set aside the lower part of the FM band for
noncommercial educational stations; that designation of part of the
spectrum helped to increase the number of educational FM stations from
seven in 1941 to more than 800 some 40 years later (Brant, 1981).
A long history of court decisions over the past 30 years have made it clear
that publicly funded colleges and universities cannot censor the student
press. As the Fourth Circuit Court of Appeals stated succinctly in Joyner
v. Whiting (1973), "Censorship of constitutionally protected expression
cannot be imposed by suspending the editors, suppressing circulation,
requiring imprimatur of controversial articles, excising repugnant
material, withdrawing financial support, or asserting any other form of
censorial oversight based on the institution's power of the purse" (p.
460). That philosophy has been unpheld repeatedly since then. In contrast
to those well-established protections afforded campus print journalists,
however, the courts have said that administrative restrictions on
broadcasters do not represent an unconstitutional infringement on First
It has been well established that students at privately operated campuses
do not have to be afforded all the First Amendment rights that are afforded
their public school counterparts. An attempt to circumvent that exemption
for private schools failed in a 1971 lawsuit in U.S. District Court in New
York in Post v. Payton. In that case, the former director at WCWP-FM at
Long Island University, some members of the radio station's student staff,
and listeners challenged the university's decision to suspend operation of
the station because of the airing of obscenities. The plaintiffs argued
that because the school had obtained an FCC license for the FM station, the
privately financed school was in effect converted into an agent of
government action and as such the station was subject to First and
Fourteenth Amendment protections. The district judge ruled against the
claim, stating that mere federal licensing of a radio station is not enough
to convert an otherwise private institution into a government agency. In
his decision, U.S. District Judge John Bartels wrote, "It is only
government action which can violate the First and Fourteenth Amendments"
(p. 803). Therefore, administrative regulation of content at private
schools is not unconstitutional.
Sixteen years later, the U.S. District Court in Florida had the
opportunity to assert that broadcasters at publicly funded campuses enjoy
First Amendment protections. But in Schneider v. Indian River Community
College Foundation, the district judge ruled that staff members at a campus
radio station have no First Amendment right against governmental restraint
of their on-the-air expression.
In Schneider, the station manager and program director for WQCS, operated
by the Indian River Community College in Fort Pierce, Florida, challenged
their firing. Their lawsuit claimed, primarily, that they were dismissed
for ignoring the college president's instructions that they not air news
stories on local political elections that concerned candidates associated
with the college and stories on a controversial land development project
operated by a financial contributor to the school. Although the rulings in
this case and in an appeals court consideration of the same case directly
involved employees and not students working at campus broadcast outlets, it
is clear the same standards would apply to both, because the ruling focused
on the station and not the status of the employees.
District Judge Norman Roettger issued a summary judgment in Indian River
finding that the college administration, as the holder of the FCC license,
had the only First Amendment right to determine what material would be
broadcast. His decision cited CBS v. Democratic National Committee, in
which the U.S. Supreme Court stated that the ultimate control and
responsibility for what is broadcast belonged to the licensee. The Eleventh
Circuit Court of Appeals affirmed the bulk of Roettger's ruling in 1989,
although it noted the First Amendment implications while stating that the
Supreme Court had never addressed "the question of the range of a public
licensee's right to exercise editorial discretion over its broadcast
programming." The appeals court agreed with the District Court's finding
that the licensee, and not workers at the station, had First Amendment
rights in the arena of broadcasting:
While the appellants may not be deprived of their own First Amendment
rights, there is nothing in the Constitution which gives them the right to
use the appellees' equipment and license for their own expression. The
appellants, as employees of the station, cannot require the (college)
Trustees, as licensee, to air any particular view over the station. The
Trustees have the broadcast license and thus sole programming discretion.
Both Indian River decisions relied in large part on Muir v. Alabama
Education Television Commission, a 1982 appeals court ruling in a challenge
of Alabama's state-run public television station not to air a controversial
documentary. In that case, viewers sought an injunction to force the
state-run television stations to broadcast "Death of a Princess," a 1980
documentary detailing the execution of a Saudi Arabian princess and her
commoner lover because of their adultery.
The appeals court addressed two lower court decisions: a District Court in
Alabama had upheld the state authority not to air the program, while a
District Court in Texas had granted an injunction forcing the University of
Houston's station, KUHT-TV, to air the program.
The Fifth U.S. Circuit Court of Appeals combined the two cases and heard
them en banc. Eleven judges joined in an opinion stating in effect that
state-owned television stations are subject to a different First Amendment
interpretation than are other state-owned media: "We are not convinced that
editorial decisions of public television stations owned and operated by the
state must, or should, be viewed in the same manner and subjected to the
same restrictions as state regulatory activity affecting speech in other
areas" (p. 1043).
Campus Computer Systems and the First Amendment
If the courts have been clear in stating that over-the-air campus
broadcasting is regulated by the FCC and that administrators, not the
broadcast station staff, are ultimately responsible for content, what about
Internet-only radio? What is the authority of campus administrators in
regulating or controlling content when there is no over-the-air signal? The
answer depends on whether university computer systems used by Internet-only
radio stations are considered to be public forums, limited public forums,
or nonpublic forums.
The U.S. Supreme Court, in a number of cases, has made a clear distinction
among the three types of forums. In Perry Education Association v. Perry
Local Educators' Association (1983), the Court made a clear distinction
between public forums, "which by long tradition or by government fiat have
been devoted to assembly and debate" (p. 45), limited public forums, and
nonpublic forums. In a public forum, the government cannot prohibit all
communication, the Court said. The government must show that any content
restriction is necessary to serve a compelling state interest, narrowly
drawn to achieve that purpose, be content-neutral, and be narrowly tailored
to serve a significant government interest, what is know as "time, place
and manner restrictions (p. 45). Public property that is not by a public
forum is governed by different standards, the Court said, writing that the
government can restrict access to such a limited public by reserving the
forum for its intended purposes, "as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public
officials oppose the speaker's view" (p. 46). A nonpublic forum is "public
property which is not by tradition or designation a forum for public
communication" (p. 47).
In 1995, the U.S. Supreme Court further delineated the differences among
the various forms of forums, stating in Rosenberger v. University of
Virginia that viewpoint discrimination by the government is not permitted,
in either public forums or limited forums. At the same time, the court
said, "The necessities of confining a forum to the limited and legitimate
purposes for which it was created may justify the State in reserving it for
certain groups or for the discussion of certain topics" (p. 829). In such a
situation, the Court said, "We have observed a distinction between on the
one hand, content discrimination, which may be permissible if it preserves
the purposes of that limited forum, and, on the other hand, viewpoint
discrimination, which is presumed impermissible when directed against
speech otherwise within the forum's limitations" (p. 829-830).
The U.S. District Court for the Western District of Oklahoma addressed
the question of public forums specifically in the context of campus
computer use in Loving v. Boring (1997). In that case, a University of
Oklahoma professor, Bill Loving, challenged University President David
Boren's decision to restrict access to certain newsgroups via the campus
computer system because, Boren said, they were obscene. Before the U.S.
District Court judge could rule on the issue, the university created a
second campuswide computer system, available only to those 18 and older and
for use strictly for academic and research purposes. The judge ruled that
the second computer system made Loving's lawsuit moot. Further, the judge
The OU computer and Internet services do not constitute a public forum.
There was no evidence at trial that the facilities have ever been open to
the general public or used for public communication. The state, no less
than a private owner of property, has the right to preserve the property
under its control for the use to which it is lawfully dedicated. (p. 956)
The 7th Circuit Court of Appeals also addressed the issue of whether a
campus computer system is a public forum in Pichelmann v. Madsen
(2002). In that case, a student and part-time employee at the University
of Wisconsin-Milwaukee sued, alleging that university officials violated
her First Amendment rights by ordering her to remove the quotation "'The
truth shall set you free, but first it will piss you off!' Gloria Steinem"
from her e-mail "signature" on work-related messages. The 7th Circuit
rejected her appeal, in part because it found that even if the campus
computer system was a limited public forum, the restriction on her
work-related e-mail was viewpoint neutral and therefore permissible: "We
doubt that the university created such a forum here, however, because the
e-mail system was not indiscriminately open for use by the general public"
A university computer system also is not a public forum in terms of access
to information by university employees, the 4th Circuit Court of Appeals
ruled in Urofsky v. Gilmore (2002). In that case, six professors from
public colleges and universities challenged that state's law forbidding
state employees from accessing sexually explicit materials on state owned
or leased computers. The 4th Circuit, sitting en banc, ruled against the
professors, in part because they had no First Amendment right to use their
state-owned computers to access information contrary to their employers'
If campus computer systems are not traditional public forums that have
been opened to general public, then what type of content restriction can a
public university place on an Internet-only radio station distributed
through that computer system? As the Supreme Court said in Rosenberger v.
University of Virginia, the government may not exercise viewpoint
discrimination in a limited public forum. However, the Court wrote, "The
necessities of confining a forum to the limited and legitimate purposes for
which it was created may justify the State in reserving it for certain
groups or for the discussion of certain topics" (p. 827).
In a 1994 District Court decision from the Western District of Washington,
however, public radio station KCMU at the University of Washington was
found to have violated the First Amendment when it forbid employees from
criticizing the University or University administrators (Aldirch v. Knab).
The judge ruled that the University, as licensee of the station, could
control content but that its rules barring criticism was not viewpoint
neutral and therefore were unconstitutional: "The uncontested evidence
shows that the KCMU policy is content-based suppression of speech critical
of any aspect of KCMU or the University of Washington. Suppression of
particular news stories because of their content constitutes the type of
pure viewpoint discrimination prohibited by the First Amendment" (p. 1494).
Several lower court decisions have made it clear that a public university's
computer system is not a traditional public forum, and the university is
within its power to regulate access to and use by students and faculty.
Those rules must be viewpoint neutral to pass constitutional muster, but
according to the court cases detailed here the rules can be based on
content. As lower courts said in Rosenberger v. University of Virginia
(1995), Loving v. Boring (1997), and Pichelmann v. Madsen (2002), content
regulation is permitted of communication activities that are not a
traditional public forum as long as that regulation is content-neutral. An
Internet-only radio station at a public campus may be able to use the
university's computer system to distribute its programming, but that use of
the computer system also makes the station subject to content regulation by
university administrators. Internet-only radio may free campus broadcasters
from FCC regulation faced by their over-the-air counterparts, but it does
not free them from all university supervision.
Although the courts have been consistent in granting broad First Amendment
freedoms to student print media at public colleges and universities, the
cases cited here cast doubt on whether the on-line version of print
publications would have the same freedom. As Senat noted in 1996, it would
appear that on-line versions of print publications would have the same
First Amendment protections. That question, however, has not yet been
addressed by the courts, and based on the cases cited in this paper it
appears the on-line publications might be subject to viewpoint-neutral
One way Internet-only radio stations on campus could avoid content
regulation would be to find an off-campus server to distribute their
signal. While that would remove the station from the university's computer
system and eliminates the ability of administrators to regulate content, it
also would add a financial burden to the station; Internet access is not
free, and paying for access to an off-campus server would require a source
of income. The Internet has provided technology that enables broadcasters
to communicate without using the public airwaves, but it also makes them
subject to a new form of administrative content regulation.
Aldrich v. Knab, (1994). 858 F. Supp. 1480 (W.D. Washington).
Brant, Billy G. (1981). The College Radio Handbook (Blue Ridge Summit, Pa.:
Tab Books Inc.
CBS v. Democratic National Committee. (1973). 412 U.S. 94.
FCC v. Pacifica. (1978). 438n U.S. 736.
FCC v. League of Women Voters of California. (1984) 468 U.S. 364, 366.
History. (2003) http://radio.babson.edu/history.asp. Accessed Jan. 16. 2003
Joyner v. Whiting. (1973). 477 F.2d. 456 (4th Circuit).
Lind, Rebecca Ann, and Medoff, Norman J. (1999). Radio stations and the
World Wide Web. Journal of Radio Studies 6(2), 203-221.
Loving v. Boren. (1997). 956 F. Supp. 953 (W.D. Oklahoma).
McClung, Steven. (2001). College radio Web sites, Journalism and Mass
Communication Educator, 56 (1), 62-83.
Muir v. Alabama Educational Television Commission. (1982) 688 F. 2d 1033
No wattage required. (2002) UTA Magazine 24(2), 8.
Perry Education Association v. Perry Local Educators' Association. (1983).
460 U.S. 37.
Pichelmann v. Madsen. (2002). 31 Fed. Appx. 322 (7th Circuit )
Post v. Payton. (1971). 323 F.Supp. 799 (E.D. N.Y.).
Redmond, James W. (1997). Broadcasting World Wide Web sites: public
service or self service? Paper presented to Radio and Television Journalism
Division of Association for Education in Journalism and Mass Communication
at annual conference in Chicago, Ill.
Reno v. ACLU. (1997). 521 U.S. 844.
Rosenberger v. University of Virginia. (1995) 515 U.S. 819.
Schneider v. Indian River Community College Foundation. (1987). 684 F.Supp.
283 (S.D. Fla,).
Schneider v. Indian River Community College Foundation. (1989). 875 F. 2d
1537 (11th Circuit)
Senat, J. (1996). On-line student publications: do student editors at
public universities shed their first amendment rights in cyberspace? Paper
presented to Law Division of Association for Education in Journalism and
Mass Communication annual conference, Anaheim, California.
Urofsky v. Gilmore. (2002). 216 F.3d 401 (4th Circuit).
 The decision affirmed the District Court's finding that the firings
did not violate First Amendment rights, but it reversed and remanded a
portion of the decision dismissing a complaint that the workers were fired
in retaliation for speaking to reporters about the dispute.