# Joint Appendix — Federal Communications Commission v. League of Women Voters of California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0013%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1984 - **Citation:** 468 U.S. 364 ## Text 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 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. Pg dg dg gil gil gil if rib yd yd yd yd 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 1-18-80 1-28-80 1-29-80 2-13-80 2-25-80 2-27-80 3-35-80 yd yd yd yd yd yd yd yd yd yd yd yd yd if yd yd 2 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 4/13/81 4/16/81 4/29/81 5-7-81 5-19-81 5/21/81 5-29-81 6-1-81 yd yd rz rib rlb sb sb 3 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 10-2-81 sb sb sb sb sb sb sb sb sb jed sb sb sb sb sb 4 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 sb sb sb rlb gth gth gth gth gth 5 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 gth gth 6 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 v, 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- 9 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. 10 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 11 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 12 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. v. 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] 13 [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 l4 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 15 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- 16 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, ee WILLIAM FRENCH SMITH Attorney General 17 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL., PLAINTIFFS, v. 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 18 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0013%3A02. Public record. Not legal advice.