Joint Appendix — Federal Communications Commission v. League of Women Voters of California

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No, 82-912

OCTOBER TERM, 1982

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT

Uv.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

JOINT APPENDIX

FREDRIC D. WOOCHER

LUCAS GUTTENTAG

MARILYN O, TESAURO

CARLYLE W. HALL, JR.

JOHN R, PHILLIPS

CENTER FOR LAW IN

THE PUBLIC INTEREST

10951 W. Pico BOULEVARD Rex E. LEE

THIRD FLOOR Solicitor General

Los ANGELES, CALIFORNIA 90064 Department of Justice

(213) 470-3000 Washington, D.C. 20530

(202) 633-2217

APPEAL DOCKETED: DECEMBER 1, 1982

FURTHER QUESTION OF JURISDICTION POSTPONED

TO HEARING OF THE CASE ON THE MERITS:

February 28, 1983

TABLE OF CONTENTS

Page

District court docket entries...................... 1

Second amended complaint ....................... 7

Civil minutes entry, November Rs deeewhe cen 12

Letter from Attorney General Civiletti to Senator

pee MOON BE, BOD ois ics cowecccnc.. 13

Letter from Attorney General Smith to Senators

Thurmond and Biden, April 6, 1981 ............. 15

Notice of motion, oe 17

Order postponing further consideration of question

of jurisdiction to hearing on merits ............. 18

(1)

DATE

4/30/79

6-13-79

6-29-79

7-30-79

8-24-79

8-27-79

8-28-79

9-12-79

9-24-79

*9-19-79

10-23-79

11-16-79

1-17-80

LEAGUE OF WOMEN VOTERS OF CALIFORNIA,

HENRY WAXMAN; PACIFICA FOUNDATION, PLAINTIFFS

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

NR.

gil

rib

No. 79-1562

PROCEEDINGS

1. Fld complt. Issd summs. Case maybe ref to Mag.

Penne.

2. Fid Req & Ord for sve of proc by other than the

USM, namng Alletta d’A Belin.

3. Fld rtn of sms, servd FCC on 4-30-79

4. Fid Stip & ORD ext ti for dft to ans complt to

7-30-79

5. Fld deft's ANSWER TO COMPLAINT.

6. Fld ORD (MMI) re early meeting; mand stat conf

11-5-79, 10 am.

7. Fid stip re joint stat rpt.

LODGED pltfs’ prop Ist A/C.

LODGED pltf's prop ord.

8. Fld ORD (MML) that purs to stip fld 8-24-79 pitfs

may file amd complt.

9. Fld pitfs’ FIRST AMENDEE COMPLAINT

10. Fid deft's ANSWER TO FIRST AMENDED

COMPLT

11. Fld pifs’ nte of Mot & mot, rtnbl 11/5/79, 10 am,

for S/J.

12. Fld plfs’ memo of P/As In suppt mot for S/J.

18, Fld affd of Waxman in suppt Mot for S/J.

LODGED plfs’ proposed finds of fact & conc! of

law.—PLACED IN FILE, NOT USED

LODGED plfs’ proposed S/J—PLACED IN FILE,

NOT USED

14. Fld Stip & ORD re time for fing pltfs’ S/J mot

15. Fld Stip & ORD ext ti to 11-15-79 for deft to

resp to pitf's mot for S/J; pits shall fle their reply no

latr than 11-26-79; mattr rescheduld for hrg 12-3-79

16. Fld Stip & ORD ext ti for deft to resp to pitfs’

motn for S/J to 1-18-80; pits shall fle reply no latr

than 1-28-80 & if Crt approves that this mattr be

rescheduled for hrg on 2-4-80, 10OAM

17. Fld note of Senate’s motn to appear as Amicus

Curiae retnbl 2-4-80, 10 AM

1-18-80

1-28-80

1-29-80

2-13-80

2-25-80

2-27-80

3-35-80

18. Fld memo in suppt of Senate’s motn to dism

19. Fld note of Senate’s motn to dism retnb! 2-4-80,

10AM

20. Fld note of Senate’s motn to defer resp to motn

for S/J retnb] 2-4-80, 10AM

LODGED prop ORD—PLACED IN FILE, NOT

USED

21. Fld deft’s resp to pitfs’ motn for S/J

22. Fld US Senate’s aff of srvce of cpy of Senate’s

note of motn & motn to appear as amicus curiae &

supptng memo; Senate’s notc of motn & motn to dism

& supptng memo; Senate’s notc of motn & motn to

defer to pltfs’ motn for S/J prop Ord submitted by

Senate

23. Fld US Senate’s note of app of Michael Davidson

& Charles Tiefer as ens] for US Senate in case

24. Fld Stip & ORD that ti for pitfs & deft to resp to

Amicus applicant Senate’s motns to appear as Amicus

Curiae & to dism case ext to 2-11-80; Senate shall fle

reply no latr than 2-21-80 & these motns reschedule

for hrg on 3-3-80

25. Fld deft’s resp to Senate’s motn to appear as

Amicus Curiae & motn'to dism

26. Fld pltfe note of motn & motn ti disallow Senate’s

motn to disui retnbl 3-3-80, 10AM

27. Fld pltfs memo in suppt of pltfs’ motn to disallow

filng of Senate’s motn to dism

28. Fld pltfs memo of nonopp to Senate’s motn to ap-

pear as Amicus Curiae

29. Fld pltfs memo in opp to Senate’s motn to dism;

declaratns of Joel Kugelmass, Susan F. Rice; Henry

A. Waxman in suppt

30 Fld senate reply in supp of mtn to dism

31 Fld aff of serv of reply of senate in supp of mtn

32 Fld Senate’s memo in reply to pltfs memo of

nonoppos to mtn to appear as amicus & in oppos to

mtn to disallw filng of Senate’s mtn to dism

33. Fld pltfs’ reply in suppt of motn to disallow Sen-

ate’s motn to dism

34. MIN ORD: US Senate’s motn to appear as

Amicus Curiae is GRANTED. Crt allows fing of Sen-

ate’s motn to dism. Motn to dism is argued to Crt &

Crt tikes motn to dism under submissn

3-7-80

3-10-80

3-14-80

4/24/80

5-2-80

&-4-80

1-26-81

2/17/81

3/25/81

4/13/81

4/16/81

4/29/81

5-7-81

5-19-81

5/21/81

5-29-81

6-1-81

rib

rlb

35. Fld Movant to Appear as Amicus Curiae suppl

memo on O’Hair v. United States

36. Fld Movant to Appear as Amicus Curiae aff of

srvce of cpy of Senate’s supp! memo on O’Hair v.

United States on 3-6-80

37. Fid ORD granting US Senate’s motn to appear

Amicus Curiae, denying pltfs’ motn to disallow filng

of Senate’s motn to dism & granting Senate’s motn to

dism actn (ENT 3-11-80) Mid cpys & Note

38. Fld pltfs’ note of resetting prev noted motn for

S/J retnbl 4-7-80, 1OAM

39. Fld plft’s NOTICE OF APPEAL to the 9th Cir.

C/A fr ord ent on 3/11/80. $65.00 docket fee paid.

40. Fld pitfs’ reportrs transc designtn

41. Fld pltf's designtn of cirk’s reerd on appeal

42. Fld pitfs designation of clks reed

43. Fld amicus curiae design of ckk’s record

—Issd & fwd to C/A lee of Clk’s rec on appeal.

44. MIN ORD: ORDS that the ord of rem issd by

9CCA on 4/10/81 is set fr filing & spreading upon the

rec of this ert on 4/17/81, 9:30 AM. ORD that ens! to

prepar written status rpts to be fi in this ert by

4/16/81, 4PM

45. Recvd fm 9CCA epy of ord of rei to dist ert fr 56

dys.

46. Fld plfs’ status report.

47. Fld deft’s status report.

48. MIN ORD: Fling & Spreading: ORD the ORD of

REmand of the USCCA remanding act to USDC for

fur action be & is fld & spread. (Ent 4/30/81)

Made REopening JS-5

49. Rec’d epy C/A ord ex & motn for clarification

granted to 6-22-

50. Fld deft’s memo on remand from crt of appeal re

jurisdiction

51. MIN ORD: Crt on its own mot, ORDS that Ord of

USCA for 9th cir fld 4/30/81, extending the tim of re-

mand to 6/22/81, be & hereby is fild & spread upon

the reerd of ert. (ENT 5/22/81)

52. Fld pitf's memo on remand from the crt on appeal

re jurisdetn

53. Fld motn of Senate to w/draw

54. Fld memo of Senate in suppt of motn to w/draw

6-8-81

6-18-81

7-13-81

7-22-81

7-27-81

7-28-81

8-3-81

8-12-81

8-10-81

8/18/81

8-31-81

9-15-81

9-23-81

10-2-81

jed

55. MINORD: ert grant US Senate motn to w/draw

from the case, crt takes question of jurisdctn under

submission

56. Fld ORD (MML) Vacating dism & setting briefing

schedule

57. Fld pitf's supplemtnal memo of P/A in suppt of

motn fr S/J

58. Fld deft’s statmnt of genuine iss’e of material

fact

59. Fld deft;s memo of P/A in opp to pltf motn fr S/J

60. Fld pltf's reply memo of P/A in suppt of motn fr

S/J

61. Fld pltf's addendum to pltf reply to memo of P/A

in suppt of suppt of motn fr S/J

62. MIN ORD: plitf motnfr S/J cont to 9-28-81 10am

pitf supplemtnal motn before 8-24-81 opp NLT 2wks

63. Fld pltf's Stip & Ord (MML) pltf openinf brief due

8-28- deft’s resp 9-15 pltf reply 9-22-81 Crt hrg on

9-28-81

64. Lodged copy of jugh fr C/A that appeal dismissed

65. MIN ORD: Flg & Spreading of Mandate frm

USCCA, 9th Cire. ORD that the Mandate frm

USCA, 9th Cire Dsmng the appeal, w/o prej, is fld &

Spread upon the recs of this Dist Crt. (ENT 8/20/81)

66. FLD pitf's 2nd memo of P/A in suppt of motn fr

S/J

67. Fld deft supplemental memo on amendment of

Section 399

68. Fid Ord cont oral arg on pltf motn fr S.J until

11-9-81 & Granting pltf lv to file amended complt

(MML)

69. Fld pitf second reply to memo of P.A in suppt of

motn fr S/J

64. Fldpltf SECOND ‘MENDED COMPLT fr de-

clartory & injuntive relief against enforcement of 47

U.S.C. § 399

65. Fld pltf note of filing second amende complt prop

S/J amende prop finding of fact & cocncl of law retbel

11-23-81 10am hrg

10-13-81

10-26-81

11-9-81

8/5/82

8/27/82

*8/18/82

9/3/82

9/7/82

10/4/82

10/22/82

rlb

gth

66. Fld pitf delear of Jim Berland

LODGED AMENDED PROP S/J

LODGED AMENDED pro finding of fact & con cl of

law

67. Fld deft memo in suppt of motn to dism the sec-

ond amended compt!

68. Fld deft note of motn & motn to dism 11-9-81

10am

69. Fld pitf memo in opp to deft motn to dism

70. Fid pitf notcof change of address

71. MIN ORD: dfet motn to dism 2nd A/C pltf motn

fr SJ under submission

72. FLD ORD GRANTING 87) in fv pif. (Ent 8/6/82

m/cpys & ntfd prtys)

73. Fid SUMMARY JUDGMENT & ORD thereon

that plfs’ Mot for S/J is GRANTED & Fur ORD the

prohibition agnst editorializing contained in 47 USC

399 is unconstitutional as a viol of the 1st amendment

to US constitution & is hereby declared null & void;

dft FCC, ete are enjoined frm forcing or execution

the prohibition agnst editorializing contained In 47

USC 399; plfs shall revr costs & reasonable attys

fees. (Ent 8/6/82 m/cpys & ntfd prtys)

74. Fld stip & ORD (MML) that defts motn to altr or

amd jdmt be cont to 11/1/82. Fur pits respons shall be

fid & srvd on defts cns] by express mail no later than

10/1/82. Defts reply shall be fld & srvd on pits cnsl by

express mail no later than 10/20/82

75. Fld deft’s note of motn to alter or and jdmt

retnb! 9/20/82, 10

76. Fld deft's NOTC OF APPEAL to Supreme Ct

frm ord ent 8/6/82.

77. Fld pitfs applic for awrd of costs & reasonabl

attys fees; memo of P&As in suppt thereof; decla-

ratns of Fredric D. Woocher, Carlyle W. Hall,

Francis M. Wheat, Nancy L. Jones, Mary Jane

Merrill, Henry A. Waxman, & Sharon Maeda

77. Fld ptif's memo in opp to deft’s motn to altr or

amd jdmt

78. Fld deft’s reply brief in suppt of its motn to altr

or amd jdmt

11/1/82

11/12/82

* 10/20/82

12/13/82

12/27/82

3-3-83

gth

79. MIN ORD: Crt ORD previous awrd of atty fees is

strickn frm jdmt. Pitfs opp to deft motn to amd jdmt

is deemd a motn for atty fees & deft’s motn to amd

jdmt is deemd opp to a motn for atty fees. Motn for

an awrd of attys fees is arg to Crt. Crt taks motn

undr submissn

80. Fld stip & ORD (MRP) that ti for pitfs to respnd

to dfets Ist req for prod of docs & defts Ist set of

interrogs shall be cont 30 days aftr this Crt rules on

pitfs motn for an awrd of costs & reasonabl attys fees

81. Fld defts ex parte applic & ORD (MML) that ti

for deft to file be extended to 10/24/82.

82. Fld plitfs’ submissn of additn! authority re pltfs’

motn for award of costs & reasonable attys’ fees.

83. Fld pitfs subm of addit’] authrty re pltfs’ mot for

award of costs & reasonble attys’ fes.

LODGED cc of ord fm Supreme Crt: Consideratn of

the questn of jrsdctn is postpond to the hrg on the

case on the merits.

FREDRIC D. WOOCHER

LUCAS GUTTENTAG

JOHN R. PHILLIPS

Center for Law in the Public Interest

10203 Santa Monica Boulevard

Los Angeles, California 90067

(213) 879-5588

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

Civ. No. 79-1562 MML (Px)

LEAGUE OF WOMEN VOTERS OF CALIFORNIA:

HENRY WAXMAN; PACIFICA FOUNDATION, PLAINTIFFS

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

SECOND AMENDED COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF AGAINST ENFORCEMENT

OF 47 ULS.C. § 699

1. INTRODUCTION

1. This is an action to invalidate, and enjoin the enforce-

ment of, the prohibition against editorializing contained in

47 U.S.C. § 399, as amended by § 1229 of the Public

Broadcasting Amendments Act of 1981, Pub. L. No. 97-35,

95 Stat. 730. Section 399, as amended, provides: “No non-

commercial educational broz casting station which receives

a grant from the Corporation [for Public Broadcasting] un-

der subpart C of this part [47 U.S.C. § 396] may engage in

editorializing. No noncommercial educational broadcasting

station may support or oppose any candidate for political of-

fice.” Plaintiffs, a citizens’ organization founded to promote

political responsibility through informed and active partici-

pation of citizens in government, an individual listener and

viewer of noncommercial programming, and a chain of

noncommercial broadcasting stations, challenge § 399’s ban

on editorializing as violating the First and Fifth Amend-

ments to the United States Constitution.

Il. JURISDICTION AND RELATED MATTERS

2. The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. § 1331(a) since this action

arises under the Constitution and laws of the United

States. Because this action is brought against the Federal

Communications Commission, an agency of the United

States, no amount in controversy need be shown.

3. The jurisdiction of this Court is also invoked pursuant

to the provisions of 28 U.S.C. §§ 2201, 2202, as this action

seeks a declaration of the rights of plaintiffs under 47

U.S.C. § 399 and the First and Fifth Amendments to the

United States Constitution.

Il. PARTIES

4. Plaintiff League of Women Voters of California (here-

inafter “League”) is a non-profit non-partisan organization

incorporated in the State of California. It has approximate-

ly 13,000 members in 80 local chapters in California. The

purpose of the League is to promote political responsibility

through informed and active participation of citizens in gov-

ernment. Its principles include a belief in representative

government and in the individual liberties established in

the United States Constitution, and a conviction that demo-

cratic government depends upon the active participation of

a knowledgeable citizenry. The League’s objective of edu-

cating the electorate is illustrated by its pamphlets and by

its sponsorship of political debates, including the televised

California gubernatorial debates of 1978 and local “candi-

date nights” in which those seeking public office are pre-

sented to voters. The League also analyzes election ballot

measures and presents the issues to voters both in written

form and through the broadcast media. In addition, the

League takes positions on selected issues and ballot meas-

ures after its members have studied and come to agree-

ment. To disseminate its views, the League often seeks out

broadcast editorials favorable to its position, or seeks to re-

ply to editorials opposing its viewpoint. If noncommercial

broadcasters were not prohibited by 47 U.S.C. § 399 from

engaging in editorializing, the League would seek their edi-

torial support just as it has done with commercial broad-

casters. And if noncommercial broadcasting stations were

to broadcast editorials, the League’s members would listen

to such editorials.

5. Plaintiff Henry Waxman, suing in his individual capac-

ity, is the United States Congressman representing the

24th Congressional District in California, which includes

portions of the City of Los Angeles and the unincorporated

area of Los Angeles County. From December 1975, to Jan-

uary 1979, plaintiff Waxman was a member of the Commu-

nications Subcommittee of the House Committee on Inter-

state and Foreign Commerce (hereinafter “subcommittee”).

In his capacity as a member of that subcommittee, he ac-

tively participated in deliberations on the Public Telecom-

munications Financing Act of 1978 (H.R. 12605), and pro-

posed as a section of that Act, an amendment to the

Federal Communications Code which would have abolished

the prohibition on editorializing by noncommercial broad-

casters contained in 47 U.S.C. § 399. Plaintiff Waxman is

also a regular listener and viewer of noncommercial radio

and television broadcasts. Plaintiff Waxman has in the past

and continues to desire to hear the editorial opinions of

noncommercial broadcasting stations, yet he has been

denied access to such opinions because of the prohibition on

editorializing contained in 47 U.S.C. § 399.

6. Plaintiff Pacifica Foundation (hereinafter “Pacifica”) is

a non-profit educational corporation which owns and oper-

ates noncommercial FM radio stations in five major mar-

kets in the United States: Los Angeles (KPFK), Berkeley

(KPFA, KPFB), Houston (KPFT), Washington, D.C.

(WPFW), and New York (WBAI). From the inception of

the Community Service Grant program, Pacifica has re-

ceived funds from the Corporation for Public Broadcasting,

and each of its stations currently receives, and anticipates

that it will continue to receive, a grant from the Corpora-

tion under subpart C of Part IV of the Federal Communica-

tions Act of 1924. Hence Pacifica and each of its stations

are prohibited from editorializing pursuant to 47 U.S.C.

§ 399. Established in 1946, Pacifica now has over 50,000

listener-sponsors and 400,000 listeners weekly. One out of

five Americans is within range of Pacifica broadcasts.

Pacifica was established, inter alia, to promote the full dis-

tribution of public information and the study of political and

economic problems, to .id creative activities serving the

cultural welfare of the communities it serves, and to pro-

vide accurate, objective, comprehensive news on all mat-

ters vitally affecting the communities. The ability to pro-

vide an arena for in-depth inquiry and discussion of a wide

range of ideas is fundamental tu Pacifica’s achievement of

these objectives. Were it not for the prohibition against

editorializing contained in 47 U.S.C. § 399, Pacifica would

broadcast its views on various important public issues, and

would clearly label those views as being editorials broad-

cast on behalf of the Pacifica management.

7. Defendant Federal Communications Commission

(hereinafter “Commission” or “FCC”) is an administrative

agency created pursuant to 47 U.S.C. § 151 for the purpose

of regulating radio and wire communication. The Commis-

sion is charged with executing and enforcing the provisions

of the Federal Communications Act, 47 U.S.C. §§ V5let

seq., including 47 U.S.C. § 399.

IV. FIRST CAUSE OF ACTION

&. 47 U.S.C. § 399’s prohibition against editorializing is

unconstitutional on its face and as applied to plaintiffs in

that it violates plaintiffs’ rights to freedom of speech and

the press under the First Amendment to the United States

Constitution by denying noncommercial educational broad-

casting stations which receive a grant from the Corporation

for Public Broadcasting the right to editorialize and by

denying members of the broadcast audience access to such

editorials.

9. Plaintiffs League of Women Voters of California, Hen-

ry Waxman, and Pacifica Foundation are irreparably in-

jured by 47 U.S.C. § 399 and have no adequate remedy at

law available to them, in that unless this Court grants the

relief requested, the FCC will continue to enforce § 399,

thereby violating plaintiffs’ constitutional rights.

V. SECOND CAUSE OF ACTION

10. 47 U.S.C. § 399’s prohibition against editorializing is

unconstitutional on its face and as applied to plaintiff

Pacifica in that it violates Pacifica’s right te equal protec-

tion of the laws under the due process clause of the Fifth

Amendment to the United States Constitution by depriving

noncommercial educational broadcasting stations which re-

ceive a grant from the Corporation for Public Broadcasting

of constitutional rights which are exercised by other

noncommercial and commercial broadcasters.

11. Plaintiff Pacifica is irreparably injured by 47 U.S.C.

§ 399 and has no adequate remedy at law available to it in

that unless this Court grants the relief requested, the FCC

will continue to enforce § 399, thereby violating plaintiffs’

constitutional rights.

VI. PRAYER FOR RELIEF

Plaintiffs pray for the following relief:

1. For a judgment declaring that the prohibition against

editorializing contained in 47 U.S.C. § 399, as amended by

§ 1229 of the Public Broadcasting Amendments Act of

1981, Pub. L. No. 97-35, 95 Stat. 730, is invalid as a viola-

tion of the First and Fifth Amendments to the Constitution

of the United States;

2. For an order enjoining defendant, its attorneys,

agents, employees, and all others acting in concert with it

from enforcing or executing the ban on editorializing con-

tained in 47 U.S.C. § 399;

3. For cost: and reasonable attorneys’ fees; and

4. For such other further relief as this Court may deem

just and proper.

DATED: October 2, 1981

FREDRIC D. WOOCHER

LUCAS GUTTENTAG

JOHN R. PHILLIPS

CENTER FOR LAW IN THE

PUBLIC INTEREST

/s/_ pe ee Se. Pe Sees see

FREDRIC D. WOOCHER

| | ee Ee eee ee Ke

LUCAS GUTTENTAG

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Civil Minutes—General

Case No. CV79-1562-MML Date November 1, 1982

LEAGUE OF WOMEN VOTERS, ET AL.

F.C.C.

PRESENT:

HON. MALCOLM M, LUCAS, JUDGE

DUANE HOSTETTER

Deputy Clerk

DON MEHLER

Court Reporter

ATTORNEYS PRESENT

FOR PLAINTIFFS:

FREDRIC WOOCHER

ATTORNEYS PRESENT

FOR DEFENDANTS:

JUDITH LEDBETTER, USDJ

PROCEEDINGS:

Counsel are present. The Court Orders that its previous

awaid of attorney fees is stricken from the judgment.

Plaintiffs’ opposition to the defendant motion to amend

judgment is deemed a motion for attorney fees and the de-

fendant’s motion to amend the judgment is deemed the op-

position to a motion for attorney fees.

The motion for an award of attorney fees is argued to the

Court. The Court takes the motion under submission.

Initials of Deputy Clerk

[illegible]

[October 11, 1979]

Tel: 633-3495

PB: KOlesker:bgg

82-12C-69

Honorable Robert C. Byrd

Senate Majority Leader

United States Senate

Washington, D.C. 20510

Dear Senator Byrd:

In League of Women Voters of California, et al. v. Fed-

eral Communications Commission (C.D. Cal., No. CV79-

1562-MML (PX)), the plaintiffs challenge, on First and

Fifth Amendment grounds, the constitutionality of Section

399(a) of the Public Broadcasting Act of 1967, 47 U.S.C.

§399(a), which prohibits all public broadcasting stations

from editorializing and supporting or opposing political can-

didates. I wish to inform the Senate that the United States

will not defend the constitutionality of the statute.

After careful consideration, we have concluded that Sec-

tion 399(a) violates the First Amendment guarantees of

freedom of speech and freedom of the press by restricting

the ability of public broadcasting stations to comment on

matters of public interest. While not every restriction on

expression is necessarily unconstitutional, such restrictions

must serve some compelling state interest. We have not

been able to identify any compelling governmental interest

served by Section 399(a) which would justify the statute’s

prior restraint on speech. Furthermore, even if the Depart-

ment of Justice could fashion an argument that the statute

serves a compelling government interest, the statute would

still be constitutionally defective on grounds of overbreadth

since public broadcasting stations receiving no federal

funds are covered. Finally, we have concluded that there

are less restrictive means to achieve the suggested pur-

poses of the statute.

The Department of Justice is, of course, fully mindful of

its duty to support the laws enacted by Congress. Here,

however, the Department has determined, after careful

study and deliberation, that reasonable arguments cannot

be advanced to defend the challenged statute. The Federal

Communications Commission has informed us that it agrees

that the statute cannot be defended successfully in its pres-

ent form.

The Department has filed an Answer to Plaintiffs’ Com-

plaint to protect your interests should you decide to defend

this suit, and the Court has established a briefing schedule.

If the Department can be of further assistance to you in

explicating the reasons for declining to defend this case or

if you or your staff believe it would be helpful to discuss the

options that the Senate may wish to pursue, Thomas S,

Martin, Deputy Assistant Attorney General, Civil Division,

will be pleased to discuss the matter further. He can be

reached at 633-3309.

Sincerely,

BENJAMIN R, CIVILETTI

Attorney General

OFFICE OF THE ATTORNEY GENERAL

Washington, D.C, 20530

April 6, 1981

Honorable Strom Thurmond

Chairman

Committee on the Judiciary

United States Senate

Washington, D.C, 20510

Honorable Joseph R. Biden, Jr.

Committee on the Judiciary

United States Senate

Washington, D.C. 20510

Dear Mr. Chairman and Senator Biden:

I am pleased to respond to your letter of February 3,

1981, requesting that I reconsider the decision of the De-

partment of Justice not to defend the constitutionality of 47

U.S.C. § 399(a) in the case of League of Women Voters v.

FCC, No. 80-5333 (9th Circuit). Please forgive the delay in

responding, but we have undertaken a thorough review of

the question. I have devermined that the Department will

participate in the litigation and defend the statute.

The Department appropriately refuses to defend an Act

of Congress only in the rare case when the statute either

infringes on the constitutional power of the Executive or

when prior precedent overwhelmingly indicates that the

statute is invalid. In my view, the Department has the duty

to defend an Act of Congress whenever a reasonable argu-

ment can be made in its support, even if the Attorney Gen-

eral and the lawyers examining the case conclude that the

argument may ultimately be unsuccessful in the courts.

The prior decision not to defend § 399(a) was made by

virtue of the conclusion that no reasonable defense of the

constitutionality of this provision as a whole could be made.

Under applicable Supreme Court precedent, however, even

a statute that could have some impermissible applications

will not be declared unconstitutional as a whole unless the

provision is substantially overbroad and no limiting con-

struction of the language of the statute is possible. Here,

for example, the statute’s application to political endorse-

ments by government-owned broadcasters might well be

held by a court to be constitutional. In that event, the fact

that the statute permissibly could be applied in some in-

stances may be sufficient to preclude a finding that the pro-

vision as a whole is unconstitutional.

Accordingly, we will advise the Ninth Circuit of our posi-

tion and request that the case be remanded to the District

Court to allow us to present our defense.

Sincerely,

WILLIAM FRENCH SMITH

Attorney General

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.,

PLAINTIFFS,

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

No. CV 79-1562—

MML(PX).

NOTICE OF DEFENDANT'S MOTION

TO ALTER OR AMEND JUDGMENT

Hearing: September 20, 1982 10:00 a.m.

TO THE ABOVE-NAMED PARTIES AND THEIR AT-

TORNEYS OF RECORD:

PLEASE TAKE NOTICE that on September 20, 1982,

at 10:00 a.m., or as soon thereafter as defendant may be

heard, defendant will bring on for hearing before the Hon-

orable Malcolm M. Lucas, its Motion to Alter or Amend

Judgment pursuant to Rule 59e), Fed. R. Civ. Pro., on the

ene that the award to plaintiffs of reasonable attorneys’

ees is barred by sovereign immunity because the award

was not made in accord with the procedures or limitations

of the Equal Access to Justice Act, 28 U.S.C. § 2412. This

motion is supported by a memorandum of points and

authorities.

Dated: August 16, 1982

Respectfully submitted

J. PAUL MCGRATH

Assistant Attorney General

STEPHEN S. TROTT

United States Attorney

STEPHEN D. PETERSEN

Assistant United States Attorney

/s/ PAUL BLANKENSTEIN

PAUL BLANKENSTEIN

/s/ JUDITH F. LEDBETTER

JUDITH F. LEDBETTER

Attorneys, Civil Division

Department of Justice

Civil Division—Room 3537

10th & Constitution Avenue, N.W.

Washington, D.C. 20530

Telephone: (202) 633-3256

Attorneys for Defendant

3n the Supreme Court of the United States

No. 82-912

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT.

Vv,

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

APPEAL from the United States District Court for the Cen-

tral District of California.

The statement of jurisdiction in this case having been

submitted and considered by the Court, further considera-

tion of the question of jurisdiction is postponed to the hear-

ing of the case on the merits.

February 28, 1983

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.