holding that public television stations were not “public forums”
How later courts described this case
- holding that public television stations were not “public forums”
- Frank M. Johnson, Jr., J., dissenting
Written by the judges who cited it.
The opinion
KRAVITCH, Circuit Judge,
dissenting:
I agree with the analysis in Judge Johnson’s thorough and well-reasoned dissent, with one exception: his statement that the government’s decision to withdraw a program becomes presumptively unconstitutional once a plaintiff has shown that the decision was made because of the program’s “substantive content.” In my view, in addition to “substantive content,” there must be shown an improper motivation, an intent to “restrict[] access to the political ideas or social perspectives discussed .. .. ” Board of Education v. Pico,-U.S.-,-, 102 S.Ct. 2799, 2814 , 73 L.Ed.2d 435 (1982) (Blackmun, J., concurring). In this regard I agree with Judge Reavley. I do not join Judge Reavley’s dissent, however, because his standard suggests that intent to suppress must be the sole factor before the withdrawal violates the First Amendment. The Pico plurality explicitly stated that an improper motive is a “decisive factor” and makes the withdrawal unconstitutional if it is a “substantial factor.” Id. at-& n. 22, 102 S.Ct. at 2809 , 2810 & n. 22 (plurality opinion of Brennan, J., Marshall, J., and Stevens, J.). The improper motivation need not be the only factor in the withdrawal decision. For these reasons I write separately.