With congressional passage of the Radio Act of 1912, the U.S. government entered the regulatory realm of radio. Although this medium is clearly covered by the speech protection of the First Amendment, both the nature of this technology and its widespread availability to people (including children) who cannot read have continued to raise unique First Amendment issues that were reflected in this early legislation.

The impetus for passage of the Radio Act of 1912 was the sinking on April 15, 1912, of the passenger ship Titanic off the coast of Greenland. For Congress, this disaster was an example of what could happen when technology developed faster than regulation. The emergency signal broadcast by wireless operators on board the ship was received by a Marconi telegraph station in Newfoundland, but, as the news broke, amateur radio operators up and down the U.S. East Coast filled the airwaves with radio noise that prevented the distress signal from being relayed promptly. There was adequate radio communication, but the proper procedures, including monitoring the frequency and recognizing the priority of emergency traffic, were lacking.

In the 1912 act, the government for the first time seized control of the broadcast spectrum and assumed responsibility for its allocation among various uses and users.The act provided for the licensing of radio operators, a separate frequency for distress calls, absolute priority for distress calls, and twenty-four-hour radio service for ships at sea. The act also required all amateur radio broadcasters to be licensed, and it prohibited them from broadcasting over the main commercial and military wavelengths.

The Supreme Court has consistently allowed the federal government to impose content-based regulations on broadcast communications, while finding similar regulations constitutionally offensive when applied to print communications. Because the broadcast spectrum is finite and considered to be public-owned, the Court has used spectrum scarcity to justify this disparate treatment of otherwise protected speech. Spectrum scarcity is based on the theory that because the broadcast spectrum is limited and is a valuable public resource, government intervention is required to protect this resource by restricting who may use it and how. The public, not the broadcasters, have a collective right of access to information.

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