Broadcasters are left speechless. Howard Stern announced last week that he is leaving broadcast radio and heading to Sirius Satellite Radio. Some see his departure as an omen that the traditional broadcast industry is doomed to be overtaken by satellite counterparts as a result of technological inferiority.

But the real handicap of traditional broadcasters has more to do with regulation. Federal law permits the government to regulate the programming and advertising content of traditional radio and television broadcasters, but not satellite, Internet, or cable.

Mr. Stern’s humor is offensive to many, but that judgment should be made by individual Americans, not the federal government. Immune from regulation, a satellite broadcaster can tolerate and profit from the deviant humor of Howard Stern; a traditional broadcaster cannot.

To reinforce the second-class status of traditional broadcasters, the Federal Communications Commission (FCC) refuses automatically to renew broadcast licenses. This is in stark contrast to the nearly automatic renewals of hundreds of thousands of licenses for practically all other purposes.

A long-dormant industry – those who profitably challenge broadcast license renewals – has resurrected itself in Washington. Just in the past two months, various “public interest” groups have challenged the license renewals of several broadcast stations owned by General Electric (NBC), News Corporation (Fox), Paxson, and Viacom (UPN).

The public interest groups would have no realistic chance to deny the renewal of a News Corporation broadcast satellite license, but a News Corporation local television license is a vulnerable target.

The challenges have nothing to do with criminal behavior by the station owners and everything to do with the dissatisfaction of a few individuals with programming content. Some efforts to block renewal are based on allegations of infrequent indecent programming. Other efforts are based on claims that a broadcaster has insufficient children’s programming.

What standards will the FCC use in its review of the license renewal applications? While there are normative standards based on prior successful renewal applications, the FCC is not bound by prior example. It could simply decide not to renew a license with little explanation.

A generation ago, when challenges to broadcast license renewals were common, some broadcasters would ultimately seek to buy out the public interest groups, all a form of “greenmail” that simply encouraged yet more challenges. Greenmail is prohibited by law, and, so it seems, are some forms of expression.

Despite First Amendment concerns, the FCC’s special regulations for broadcasters survive because courts have been unwilling to revisit two major Supreme Court rulings from decades ago.

In Red Lion (1969) the Supreme Court held that special broadcast ownership regulations that impinge on the First Amendment were permissible largely because spectrum was uniquely scarce, and dissemination of information in the America was largely through broadcast channels. Neither factor is plausible today.

Then, in 1978, with a 5-4 ruling in FCC V. Pacifica, the court reversed a lower court ruling. It held that the FCC had the authority, largely in the interest of children, to restrict the content of ill-defined “indecent” broadcast programming without violating the First Amendment.

At the time and still today, Pacifica surprises much of the legal community. A government that can arbitrarily regulate one form of speech can arbitrarily regulate any form of speech.

With the combination of the Red Lion and Pacifica decisions, the FCC is in a powerful position to review the programming content of broadcast licensees seeking license renewals. The FCC recently has been all too willing to entertain that extraordinary exercise of power.

Will broadcasters ever effectively challenge these decisions? An industry whose existence depends on the good will of the FCC is understandably reluctant to complain. It is less risky to

pay the costs of a protracted license renewal proceeding that may turn out well rather than incur the certain wrath of a federal agency challenged in court. And even when confronted with the constitutional absurdities of Red Lion and Pacifica, courts for more than three decades have looked in all directions to avoid overturning them.

The time has come to return the First Amendment to a meaning equally applicable to all. Double standards in the constitution serve no useful purpose other than to permit the government to promote some interests at the expense of others. Perhaps Sirius Satellite and Howard Stern can inform the FCC.

Mr. Furchtgott-Roth is a former FCC commissioner. He can be reached at hfr@furchtgott-roth.com.