# Donald E. Muir, H. Jeff Buttram, and O. Navarro Faircloth, Plaintiffs v. Alabama Educational Television Commission Jacob Walker, Etc.

> Court of Appeals for the Fifth Circuit · September 21, 1981 · 656 F.2d 1012

URL: https://www.frixlaw.com/law-library/cases/9468257

## Case

- **Full name:** Donald E. MUIR, H. Jeff Buttram, and O. Navarro Faircloth, Plaintiffs-Appellants, v. ALABAMA EDUCATIONAL TELEVISION COMMISSION; Jacob Walker, Etc., Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 21, 1981
- **Citations:** 656 F.2d 1012; 50 Rad. Reg. 2d (P & F) 275; 7 Media L. Rep. (BNA) 1933; 1981 U.S. App. LEXIS 17544
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Clark, Markey, Hill
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

THOMAS A. CLARK, Circuit Judge,
dissenting:
The majority’s opinion is fatally flawed by its failure to recognize the constitutionally mandated differences in the scope of editorial discretion of public and private broadcasters. In the present case, contrary to the majority’s view, there is state action that censors a particular viewpoint. I would hold that when a public broadcaster cancels a scheduled program on the basis of the program’s content, unless the procedural guidelines established in Freedman v. Maryland 1 are followed, the state commits an act of censorship that runs afoul of the First and Fourteenth Amendments. In the instant case, the majority condones censorship by a state-government agency. By permitting the State of Alabama to deny a public viewing of a controversial program, our court swims against a stream of precedent and a philosophy that goes to the roots of one of our most cherished freedoms.
The most elaborate discussion of First Amendment rights as applied to television is found in CBS v. Democratic National Committee, 412 U.S. 94 , 93 S.Ct. 2080 , 36 L.Ed.2d 772 (1973). It must be remembered that the broadcasting medium involved in that case was privately owned, not govern-mentally operated and controlled. The following two excerpts from the opinion of Chief Justice Burger provide the backdrop for my concern about the majority opinion:
Although the broadcaster is not without protection under the First Amendment, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 , 68 S.Ct. 915, 933 , 92 L.Ed. 1260 (1948), “[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount .... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.” Red Lion, supra, [ 395 U.S. 367 ] at 390, 89 S.Ct. [1794] at 1806 [ 23 L.Ed.2d 371 ],
CBS v. Democratic National Committee, 412 U.S. at 101 , 93 S.Ct. at 2086 (emphasis supplied). The Chief Justice, in referring to the beginning of governmental regulation of the broadcasting industry, quotes the following statement given by then Secretary of Commerce Herbert Hoover in testimony before a House committee:
“We can not allow any single person or group to place themselves in [a] position where they can censor the material which shall be broadcasted to the public, nor do I believe that the Government should ever be placed in the position of censoring this material.” Hearings on H.R. 7357 before the House Committee on the Merchant Marine and Fisheries, 68th Cong., 1st Sess., 8 (1924).
CBS v. Democratic National Committee, 412 U.S. at 104 , 93 S.Ct. at 2087 .
The vision of the majority is obscured, in my opinion, in two respects. First, the ma *1027 jority believes that the editorial discretion, that may be exercised by this state-controlled broadcast network is as constitutionally broad as that enjoyed by a private licensee. Second, building on that premise, the majority then concludes that no constitutional difference exists between the decision to broadcast and the decision to cancel, and that whatever the character of the decision challenged here, it does not raise a constitutional issue. 2 My own view is that whenever a state agency supervises broadcast programming, even when it holds the broadcast license, it may not discriminate between points of view on issues of public controversy.
To begin with, state action is present in the decision of the Alabama Educational Television Commission (AETC). The licensee is a creature of the State of Alabama, not the FCC, and is run by persons holding public office under Alabama law. 3 For me the answer to the question of state action is no different in this case than it would be if the licensee were alleged to have engaged in a systematic censorship of all views aired under its auspices that were, for instance, contrary to those of the political party of a controlling majority of the members of the Commission. If such were the allegations here, the plaintiffs would not have to wait idly by while the FCC, in a lengthy hearing procedure, decided whether such conduct was consistent with a public broadcaster’s obligations. Section 1983 would reach the actions of these persons acting under color of state law. It does so here. 4
In dissenting, I limit my views to the facts of this case. AETC had purchased “Death of a Princess” as part of a package distributed through the Station Program Cooperative (SPC). As a member of SPC, the AETC had participated in the editorial decision to program “Death of a Princess” and had contributed to the funding of its broadcast by the Public Broadcasting System. As pointed out by the majority, AETC had the right to refrain from showing the program, notwithstanding its participation in the selection and funding of the program. It is that contractual right coupled with what the majority describes as the editorial freedom to choose its own programs that permitted AETC in this instance to cancel the showing of “Death of a Princess” two days before its scheduled broadcast. Remember that the decision by AETC not to show this controversial program was not grounded upon a reasonable *1028 judgment that a substitute program better fitted the needs of the television viewers. 5 The decision made by AETC was to censor this particular episode in the World series, a decision to deny the public a viewing of what the Commission assumed to be a sensitive program. To make a conscious decision to prevent the public from viewing or hearing a program and to select a “filler” as a substitute merely to consume the time initially allocated for the deleted program plainly amounts to a “prior restraint.”
The majority melds its erroneous construction of the facts with its misinterpretation of the law when it concludes that a state broadcaster’s decision to cancel a program is conceptually indistinguishable from the most mundane programming decisions:
A decision to cancel a scheduled broadcast is obviously a programming decision, no less editorial in nature than the initial scheduling decision. No reason in fact or law appears for treating the former differently from the latter in this case. Whether applied to cancelling decisions or to initial scheduling decisions, court injunctions would implicate the same destruction of editorial freedom, the same excessive involvement of government and the courts in the editorial process, and the same impossibility of either editor or court pleasing an entire public.
Majority opinion, page 1018. This reasoning simply is not convincing to me. The decision to schedule a program is a completely different animal from a subsequent decision to cancel it, if the decision to cancel has any element of official censorship. Censorship is a conscious decision to exclude the public from exposure to facts or opinions because the governmental decisionmaker deems such exposure harmful.
With respect to governmental operation of television or any other media form, the scope of editorial freedom must differ from that accorded the private media. The freedom of the private media cannot be abridged by the government. When the government operates a form of the media, however, it is not free to pick and choose between views on issues of public controversy. For the limited purposes required by the facts of this case, I would hold that once a program is selected for viewing in the manner done here, it cannot be replaced by action of a state agency unless the decision is made for reasons unrelated to the content of the program replaced. The power of censorship — the power to prohibit the public from knowing or seeing — in its slightest form should be denied to a state broadcaster.
The decision to cancel a program once it has been chosen for broadcast, as under these facts, should be subject to all the protections enjoyed by presumptively protected speech.
The settled rule is that a system of prior restraint “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58 , 85 S.Ct. 734, 739 , 13 L.Ed.2d 649 (1965). In Freedman the Court struck down a state scheme for the licensing of motion pictures, holding “that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 380 U.S. at 58 , 85 S.Ct. at 739 . We held in Freedman , and we reaffirm here, that a system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured. *1029 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559-60 , 95 S.Ct. 1239, 1247 , 43 L.Ed.2d 448 (1975) (citations omitted). Through this process, a state broadcaster is given ample opportunity to demonstrate that a program’s content is not protected speech.
The majority wrongly views the instant, case as being one largely involving the right of access to a public forum. A public forum is not merely a place where anyone can go and, subject only to reasonable time, place, and manner restrictions, express any protected speech (although most places that have been regarded as public forums to date have that characteristic in common). Instead, it is at least any facility maintained or regulated by government that is “designed for and dedicated to expressive activities.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 , 95 S.Ct. 1239, 1245 , 43 L.Ed.2d 448 (1975). Only the highly varying characteristics of differing media (in Southeastern Promotions a municipal auditorium, while here a broadcasting network) render them distinguishable on the basis of any claimed rights of access. But this is no “right of access case,” as the majority characterizes it; it is a discriminatory-access case. We need not decide, and I do not suggest, that a state-controlled broadcast network’s status as a public forum gives rise to any affirmative right of access on the part of those interested in airing their own views by means of that forum. However, I think we must decide that a regulatory agency cannot selectively deny all access to discussion of an issue of public controversy except with regard to the time, place, or manner limitations of the forum itself. Even then, the agency may not consistently exclude one side of public controversy unless the message has already been given sufficient coverage through other means. A government broadcaster’s editorial discretion must be, to the greatest extent possible, content-neutral. This cancellation flowed directly from a state agency’s determination that the content of this program was unacceptable.
I would prefer that the government not be in control of any form of the media. That decision is not left to me. Other members of the court and I are left with the responsibility of insuring that government’s use of the media does not play favorites on issues of controversy. Besides the possible fear of an outside enemy, our greatest fear- — like that of any people — is that of oppression by our own government. The framework of our government was designed by our founders to protect us from government. AETC’s casual disdain for our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” 6 although no doubt accompanied by sincere motive and infrequent occurrence, is no less repugnant to the Constitution than a studied design of thought control. I therefore dissent.
. 380 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965).
. I also confess to some difficulty in understanding how a state-controlled broadcast network, at least with respect to claims of discriminatory access, is not in any sense a public forum.
. Ala. Code §§ 16-7-1 to -5 (1975).
. CBS v. Democratic Nat’l Comm., 412 U.S. 94 , 93 S.Ct. 2080 , 36 L.Ed.2d 772 (1973), upon which the majority so heavily relies, does not support today’s decision. In that case only three justices were of the view that the actions of private network broadcasters were insufficiently attributable to the government for the First Amendment to apply (Burger, C.J., joined by Stewart and Rehnquist, JJ., 412 U.S. at 114-21 , 93 S.Ct. at 2092-96 ). Three justices were of the view that, assuming the broadcasters’ actions were attributable to government through licensing and regulation by the FCC, the policy of private broadcasters of denying paid political ads on demand did not violate the First Amendment. (White, J., and Blackmun, Powell, JJ., concurring, 412 U.S. at 146-48 , 93 S.Ct. at 2108-09 .) Those justices accepted the FCC’s determination, and Congress’ through its enabling legislation, that alternative formats would suffice to keep what was assumed to be a government function content neutral. Two justices (Brennan and Marshall, JJ., 412 U.S. at 170 , 93 S.Ct. at 2120 ) were of the view that the private broadcasters’ actions were comparable to those of the government that regulated them, and that the fairness doctrine was a constitutionally inadequate substitute for the right of access asserted. No one can read the whole of the decision, however, and find any support, express or implied, for a broadcaster’s content-based editorializing that is dictated by a state agency. That problem simply was not present. In that case, as the majority concluded, the question was “not whether there is to be discussion of controversial issues of public importance on the broadcast media, but rather who shall determine what issues are to be discussed by whom, and when.” 412 U.S. 130 , 93 S.Ct. at 2100 . The majority would have the reader believe that that is the issue here as well. But the issue here is whether a state agency may determine that there will be no discussion of a controversial issue of public importance by licensees subject to its control.
. Nor was the decision based on any conclusion that the program’s manner of presentation was in any way unfair, unbalanced, or non-objective, notwithstanding the difficulty of a judicial evaluation of such a defense. Instead the decision was based solely on its content as viewed by others. In effect, Alabama had supplied a surrogate censor for the Saudi regime.
. New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710, 721 , 11 L.Ed.2d 686 (1964).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468257. Public record. Not legal advice.