WEB RELEASE: October 4, 2000
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John Kramer
[First Amendment]

Washington, D.C.—In the first case of its kind to reach the U.S. Supreme Court, the Institute for Justice and micro-broadcaster Alan Fried filed a petition for certiorari today with the U.S. Supreme Court, asking the Court to help vindicate Fried’s free speech rights against the United States government. The petition raises a vital question: can the government seize a person’s property without an opportunity for the accused to raise constitutional rights?

“Mr. Fried and hundreds of others like him have become outlaws at the hands of the federal government’s misguided and unconstitutional suppression of micro-broadcasters,” said Scott Bullock, senior attorney at the Institute for Justice, a Washington, D.C.-based public interest law center that filed the certiorari petition on Fried’s behalf. “This case will decide whether micro-broadcasters can defend themselves by raising constitutional arguments when sued by the government.”

Fried is part of a growing, nationwide movement of individuals establishing small, “micro-radio” stations. Micro-radio stations run the gamut from Fried’s dance music station to talk radio in North Dakota, from Spanish language shows in Cleveland and Miami to a Christian Rock station in Connecticut. They broadcast diverse, mostly community-based programming using relatively inexpensive and therefore widely accessible broadcasting equipment.

A vast majority of these stations do not interfere with existing stations, but the Federal Communications Commission (FCC) still goes after them in court. The FCC points out that it is illegal to broadcast without a license from the agency, but since 1978 the FCC has refused to license micro-broadcasters—individuals who operate small, low power radio stations of less than 100 watts. The FCC recently issued rules allowing micro-broadcasters to apply for licensure, but flatly disallows any micro-broadcaster who previously engaged in unlicensed broadcasting, including Fried, from doing so. But even this limited licensure for new micro-broadcasters is under attack on Capitol Hill. Legislation that would repeal the FCC’s rules was passed by the House of Representatives on April 13, 2000 and is currently pending in the Senate. Moreover, the federal government continues to bring enforcement actions against micro-broadcasters, increasing the need for the Supreme Court to resolve the vital constitutional issues involved in these cases.

“Unless the Supreme Court takes on this issue, the federal government will be able to suppress speech, and micro-broadcasters won’t even be able to test the constitutional limits of the government’s power,” said William Mellor, the Institute’s president and general counsel. “This result turns the Constitution on its head, protecting the power of government but eviscerating the rights of individuals. It cannot stand.”

Fried’s case began in 1996 when he found a vacant space on the broadcast spectrum and started broadcasting an extremely popular, but unlicensed, Minneapolis dance music station called The BEAT. It broadcast at approximately 20 watts and spanned about six miles in radius. The BEAT’s low-power signal created no interference with any other station. But in August 1996, the FCC sent a letter to Fried demanding that he stop broadcasting because he did not have a license. Fried responded to the FCC, pointing out the fact that he was unable to obtain a license for his station. He also argued that the FCC’s prohibition of micro-radio violated his free speech rights and requested a waiver of the FCC’s licensing ban to allow him to broadcast legally. To this day, the FCC has yet to respond to his letter or his request for a waiver of the ban on licensing micro-radio stations.

Instead, the United States government in November 1996 confiscated his broadcasting equipment and brought a civil forfeiture action against it. In response to the FCC’s suit, Fried explained that he was unable to obtain a license for his radio station because the FCC did not issue licenses for micro-radio stations. The FCC prohibition of micro-radio violates the right to free speech, Fried argued. The Eighth Circuit Court of Appeals initially ruled in favor of Fried, holding that if the government brings an action against a person or his property, that person is entitled to raise all applicable defenses, including constitutional ones. But the government asked the appeals court to reconsider its holding and the court eventually changed its position, ruling that Fried could not raise constitutional defenses to the forfeiture action. Instead, the court ruled, if he wanted to challenge the FCC’s regulations, he would have to apply for a waiver of the regulations prohibiting micro-radio with the FCC itself. The only recourse then for a micro-radio broadcaster whose First Amendment rights have been violated is a lengthy, cumbersome, and extremely costly administrative process. And in this case, Fried did in fact apply for a waiver over four years ago, and he still has not received any response from the FCC.

The Institute argues in its petition to the U.S. Supreme Court that micro-broadcasters must have the right to defend themselves against FCC lawsuits, especially when the FCC’s actions violate the right to free speech. If the government chooses to bring these cases, then it cannot deny micro-broadcasters their right to mount a defense in federal court.

The law in this area is highly unsettled. While the Eighth Circuit Court of Appeals eventually ruled against Fried, the Sixth Circuit came to the exact opposite conclusion in another micro-radio case. This “circuit split” increases the likelihood of the Supreme Court accepting the case for review. The Court will likely make a decision on whether to accept the case in December 2000 or early next year.

The Institute for Justice is a libertarian public interest law firm. Through strategic litigation, training, communications, and outreach, the Institute for Justice advances a rule of law under which individuals can control their own destinies as free and responsible members of society. It litigates to secure economic liberty, school choice, private property rights, freedom of speech, and other vital individual liberties, and to restore constitutional limits on the power of government. In addition, it trains law students, lawyers, and policy activists in the tactics of public interest litigation to advance individual rights. Through these activities the Institute challenges the ideology of the welfare state and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in September 1991 by William Mellor and Clint Bolick.