# 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/8915778 ## 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:** Concurrence by Garwood - **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/8915778 ## How later opinions describe it (automated extraction) - holding that public television stations were not “public forums” ## Opinion text GARWOOD, Circuit Judge, concurring. I concur in the majority opinion, and append these remarks only to point up two additional interrelated matters I believe significant. First, plaintiffs are not attacking governmental “public” broadcasting as such. Nor do they seek to require its operation to be on a pure “open forum” basis — like an empty stage available to all comers' — where each citizen can cause the broadcast of his or her program of choice, with the inevitable selectivity determined by completely content neutral factors such as lot, or first *1061 come first served or the like. 1 Rather, plaintiffs seek to become a part of governmental “public” broadcasting essentially as it is, except they want it to broadcast this particular program of their choice. However, there is simply no way for them — together with all others who might wish to assert similar rights for their favorite “dramatization” — to become a part of such “conventional” (as distinguished from pure “open forum”) governmental broadcasting except on the basis of governmental selection of the individual programs. As the majority opinion convincingly demonstrates, in television broadcasting not only is selection inevitable, but it is likewise inevitable that in numerous instances it will be largely based on factors that are not content neutral and on considerations that involve sympathy for or hostility to the program’s “message” on the part of the party having the power of selection. 2 This is not to say that program selection influenced by “message” sympathy or hostility on the part of governmental television stations is a desirable phenomenon, or even one which is wholly consistent with the values underlying the First Amendment. But such a characteristic is part and parcel of the operation of the conventional (not pure “open forum”) governmental television stations of which plaintiffs seek to avail themselves. They are not entitled to have a special exception made in their favor so that for this particular program they are entitled to make the selection and require that these conventionally operated governmental stations broadcast it. In contrast to a pure “open forum” system where diverse individual members of the public (and perhaps third-party producers) in effect select the programs and may be considered the speakers, in conventional broadcasting the power of selection rests with the station (or party controlling it) and in substance it is the speaker. Where a governmental unit controls a conventionally operated station, it is the speaker and speaks either in its corporate capacity or as a kind of proxy for the full body of its citizens. In an isolated instance, to grant an individual the right to require such a station to broadcast a particular program merely because the station rejected it for “political” type considerations, is, in effect, to force the governmental unit — in either its corporate or more general representative capacity — to speak in a certain way and to forego other speech it would have engaged in. To grant such a right on a consistent and thorough basis is to necessarily transform the station into one operated essentially on an “open forum” basis. In the second place, plaintiffs do not assert that the stations in question have, on the basis of their agreement or disagreement with the different points of view involved or for similar “political” type reasons, structured their programming so that it constitutes a one-sided or slanted presentation of any matter of public concern, importance or controversy, whether relevant to the “message” of plaintiffs’ desired program or otherwise. 3 So far as any such matters are concerned, plaintiffs’ complaint is made essentially in a vacuum — they claim that merely because on one particular occasion a “political” type decision was made not to air one specific program plaintiffs wished to see, they therefore have a right *1062 to a court order directing these conventionally operated governmental stations to promptly air this precise program. We have rejected this claim. This is not to say, however, that no private citizen has a right to question the programming of governmental “public” television stations under any circumstances, or that the remedy of complaint to the F.C.C. will always be adequate. A private citizen has no constitutional right to force a conventionally operated governmental “public” television station to enter with its broadcasting a particular propaganda war by showing a specific program selected by the citizen. Whether it is proper for such a governmental station to enter that kind of a war at all, or whether if it does so it may nevertheless present only one side while refusing, for reasons of a “political” nature, to broadcast any competing view, are questions of a different nature that are not now before us. . Nor do plaintiffs claim that they were denied any right or privilege which the stations granted any other citizen similarly situated. . In my view, the level at which a particular television programming decision is made, just as the question of whether it is made by failure to initially select or by cancellation, is relevant here only in the sense of possibly being evidentiary of whether the decision is made on the basis of sympathy for or hostility to the program message or for some similar “political” type reason. In the context of these governmental stations broadcasting to the general public, I do not think it is of constitutional significance that the “sympathy” or “politics” influencing the decision is that of the program director or the university public affairs director or the station board of directors, when all are acting as governmental personnel. . And plaintiffs do not contend their particular (or some similar) program must be shown to fairly balance the presentation on this subject matter which the stations have improperly slanted by showing some other program or programs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8915778. Public record. Not legal advice.