# Muir v. Alabama Educational Television Commission

> Court of Appeals for the Fifth Circuit · October 15, 1982 · 688 F.2d 1033

URL: https://www.frixlaw.com/law-library/cases/8915777

## Case

- **Full name:** Donald E. MUIR, H. Jeff Buttram, and O. Navarro Faircloth v. ALABAMA EDUCATIONAL TELEVISION COMMISSION: Jacob Walker, etc., Defendants-Appellees Gertrude BARNSTONE and Harvey Malyn v. The UNIVERSITY OF HOUSTON, KUHT-TV
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 15, 1982
- **Citations:** 688 F.2d 1033; 66 A.L.R. Fed. 585
- **Precedential status:** Published
- **Opinion:** Dissent by Reavley
- **Judges:** Anderson, Brown, Clark, Fay, Garwood, Garza, Gee, Hatchett, Henderson, Hill, Johnson, Kravitch, Politz, Randall, Reavley, Roney, Rubin, Tate, Tjoflat, Vance, Williams
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8915777

## How later opinions describe it (automated extraction)

- holding that public television stations were not “public forums”

## Opinion text

REAVLEY, Circuit Judge,
dissenting:
I cannot join the majority or concurring opinions for the reason that each of these television stations does far more than transmit expressions of the state. Our desire to free non-profit public broadcasting from judicial interference is no justification for pretending that the state is not 'relaying messages into the idea marketplace. I must conclude that the state encounters the First Amendment requirement of neutrality for reasons generally discussed in my original panel concurrence. Barnstone v. University of Houston, KUHT-TV, 660 F.2d 137, 138 (5th Cir. 1981).
On the other hand, I would not go so far as Judge Johnson does to make the state’s decision presumptively unconstitutional whenever a program is not shown “because of its substantive content.” State operated television stations should be given more latitude, even to choose on the basis of substantive content, in their program selection. They should be entitled to pursue excellence, to build viewing audiences, to respond to what viewers want, and to consider the effect of their programs upon that audience. Bona fide programming decisions would not, for me, violate First Amendment neutrality. Only if the decision to show or not to show were based upon viewpoint alone, in juxtaposition to the personal viewpoint of the programming authority or state superiors, entirely aside from any opinion as to program value or effect, would I regard neutrality abused and court action justifiable. *
The recent opinion of a plurality of the Supreme Court in Board of Educ. v. Pico,--U.S.-, 102 S.Ct. 2799 , 73 L.Ed.2d 435 (1982), supports the analysis offered here and in my separate opinion in Barnstone . The plurality reaffirmed that government action intended to suppress viewpoints with which the government disagrees offends the First Amendment, and also confirmed the distinction between “content” discrimination and “viewpoint” suppression which I offer here.
[Government officials] rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner.. .. Our Constitution does not permit the official suppression of ideas. Thus whether petitioners’ removal of books from their school library denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. If petitioners intended by their removal decision to deny respondent access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution.
-U.S. at-, 102 S.Ct. at 2810 (footnote omitted) (citing Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471 (1977); compare Barnstone, 660 F.2d at 141 & n.11 (concurring opinion).
Moreover, for the reasons I have already explained, see 660 F.2d at 141 n.9, I believe that the factual differences between this case and Pico make this an even stronger case for the application of the First Amendment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8915777. Public record. Not legal advice.