Brief for United States — Federal Communications Commission v. League of Women Voters of California

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Text

No. 82-912

- 5 ie

ALEXANDER L STEVAS,

CLERK

In the Supreme Court of the Aited States

OCTOBER TERM, 1982 .

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF FOR THE UNITED STATES

Rex E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

ANTHONY J. STEINMEYER

MICHAEL JAY SINGER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether 47 U.S.C. 399, which prohibits “editorializing”

by noncommercial educational broadcasting stations that

receive grants from the Corporation for Public Broad-

casting, violates the First Amendment.

PARTIES TO THE PROCEEDING

The parties in the district court, in addition to those in

the caption, were the Pacifica Foundation and Congress-

man Henry Waxman.

(1)

TABLE OF CONTENTS

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Jurisdiction

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Constitutional and statutory provisions involved ...

Statement

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Argument:

Section 399’s prohibition against “editorializing”

is a permisible regulation of public broadcasting

station

s receiving grants from the Corporation

SOP FURS BECRGCRSUINE 2... ec cevecccsecevcess

I. Congress has power to establish and fi-

nance a public noncommercial and educa-

tional broadcasting system and to require

at subsidized stations licensed as part of

at system refrain from direct editorializ-

ing and political electioneering ...........

A. The public broadcasting system was

publicly created and is publicly support-

ed to be a community resource ........

. Congress enacted and retained the pro-

hibition of Section 399 in order to main-

tain the independence of subsidized

public broadcasting from government

influence and to serve other important

First Amendment purposes ...........

. This Court has consistently recognized

that the special character of broad-

casting justifies special regulations de-

signed to preserve the public interest in

diversity and fairness in broadcasting ..

. The bar on editorializing and election-

eering is an essential element of the

congressional plan to create and finance

a public broadcasting system devoted to

public, not private, purposes ..........

(III)

Page

E. The free marketplace of ideas is not

substantially inhibited by Congress’s

decision that owners and managers of

public stations should not have a privi-

oe. thi ay, HOTEL ETERS Ee Ee ail 41

II. Congress has power to determine that it

will not subsidize private editorializing and

vamietasopsoaien ST re aii 42

RNIN 4.0 Seance 6 eo cakd tthe cde ck: don can 47

ssasactesscipap REC TEE Ce Ee la

TABLE OF AUTHORITIES

Cases:

Abood vy. Detroit Board of Education, 431 U.S.

saa TO ERE TY CL Ee RES RN AiaiK 39, 40

Accuracy in Media, Inc. vy. FCC, 521 F.2d

Pe Ret heretwe nme scietesl oN pes 17

Associated Press v, United States, 326 U.S. 1 34

Buckley v. Valeo, 424 U.S.1................ 47

Cammarano v. United States, 358 U.S. 498 .. 47

Carey v. Brown, 447 U.S. 455 ............... 30

CBS, Inc. v. Democratic National Committee,

er OF odie. cs cas 16, 28, 29, 30,

31, 32, 40, 42, 45

CBS, Inc. v. FCC, 458 U.S. 367............. 28, 30

Community-Service Broadcasting of Mid-

America, Inc. v. FCC, 598 F.2d EMO 6s céek 35, 37

Community Television of Southern California

Vv. Gottfried, No. 81-298 (Feb. 22, 1983)..... 42

Complaint of Accuracy in Media, Inc., In re,

rechlathy n g OE Te DARD RNS 38, 41

Editorializing by Broadcast Licensees, In re,

PANG. TOME Si bsidipahavidercécvce ctr 31

FCC v. National Citizens Committee for

Broadcasting, 486 U.S. 775.......... 28, 29, 34, 46

Cases—Continued: Page

FCC v. Pacifica Foundation, 488 U.S.

DM NbCRGahG hes cetevvebdskpecabues de 28, 30, 35

FCC v. WOKO, Inc., 329 U.S. 223........... 31

First National Bank of Boston v. Bellotti, 435

Se Se ddvbened sebbemacedbderes news vien 28, 30

Fullilove v. Klutznick, 448 U.S. 448 ......... 30, 42

Lehman v. City of Shaker Heights, 418 U.S.

bs hats io ehnchsns hades dukvs Lkebion tree 35

Mayflower Broadcasting Corp., In re, 8 F.C.C.

ic kvinevnkbataceoaede nee wie seeks vee 31

Miami Herald Publishing Co. v. Tornillo, 418

Ce ied tind dunia 6 ake Abed piehe 0-0 31

Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, No. 81-1839

eck cD cia dsbipes tensrnons 30

New York Times Co. v. Sullivan, 376 U.S.

BU aN ra eek Meas ee oe a kc els 31

Oklahoma v. CSC, 380 U.S. 127..........06. 42

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Development Com-

mission, No. 81-1945 (Apr. 20, 1983) ....... 22

Pennhurst State School v. Halderman, 451

EE bush cueheth dveussontedabivenkoacdwe 42

Perry Education Ass’n v. Perry Local Educa-

tors’ Ass’n, No. 81-896 (Feb. 23, 1983)...... 30

Perry v. Sindermann, 408 U.S. 598 .......... 45, 46

Red Lion Broadcasting Co. v. FCC, 395 U.S.

GE aa Pac scecvvdehcosesensetns 28, 30, 32, 39, 42

Regan v. Taxation With Representation, No.

81-2338 (May 23, 1983) .........ee ees 8, 41, 48, 47

Report and Order, 41 F.C.C. 784... ...00ceees 13

Sixth Report and Order, 41 F.C.C. 148....... 12

Speiser v. Randall; 357 U.S. 513 ........605 45, 46

United Public Workers v. Mitchell, 330 U.S.

ik tidy deh Uleiaiah ec cebomne desendognes Morea’ 35

Cases-—Continued: Page

United States v. O’Brien, 391 U.S. 367....... 22

West Virginia State Board of Education vy.

Barnette, 319 U.S. 624 ......ccseccccccvess 40

Wooley v. Maynard, 430 U.S. 705 ........ 7, 39, 40

Constitution, statutes and regulations:

U.S. Const. Amend. 1... .cccccccnvvcvccees passim

All Channel Receiver Act, Pub. L. No. 87-529,

Sections 1 and 2, 76 Stat. 150 and 151 (codi-

fied at 47 U.S.C. 303(s) and 330(a))......... 12

Communications Act of 1934, 47 U.S.C. 301 et

seq.:

re OD a hs soe eC RU oen'eb-09s 31

ee ae bo bine on 32

Educational Television Facilities Act of 1962,

Pub. L. No. 87-447, 76 Stat. 64 ............ 13

Internal Revenue Code (26 U.S.C. (& Supp.

V)):

Ns ewe bhaseen nen ah 20

Bection BOUCNE) ..ccccccccscess 8, 17, 48, 44, 45

I ND ec cccesccaduancenewas 20

Pe eR coc tess ceedectsncuues 20

ROD ccc ccccescsanupusenevees 20

a ew a aallielare 20

Public Broadcasting Act of 1967, Pub. L. No.

90-129, 81 Stat. 365 (47 U.S.C. (& Supp. V)

BOO Of 009.) cc rccvcccccccccceccevesesyenes 11, 14

Section 201, 81 Stat. 367 .........ccsseee 15, 18

47 U.S.C. (& Supp. V) 396(b)-(f) ......... 14

47 U.S.C. (Supp. V) 3896(c) ..........06- 23

47 U.S.C. (Supp. V) 396(e) ..........506- 17

47 U.S.C. (Supp. V) 396(g) ........ poe 14

47 U.S.C. (Supp. V) 396(g)1)(A).......-- 17

47 U.S.C. (Supp. V) 396(g)(2)(B)...... . 16, 38

47 U.S.C. (Supp. V) 396(g)2)(C) ......... 16

47 U.S.C. (Supp. V) 396(k), as amended by

rin L. No. 97-85, Title XII, Section

1907, 06 Bhat. THT ooccvcccdovcngess 15, 44, 45

47 U.S.C. (Supp. V) 396(kX1)(B) .......+. 19

vil

Constitution, statutes and regulations—Continued: Page

47 U.S.C. (Supp. V) 396(k)(1)(C), as

amended by Pub. L. No. 97-35, Title

XII, Section 1227(a), 95 Stat. 727...... 19

47 U.S.C. (Supp. V),896(k)(4)............ 17

47 U.S.C. (Supp. V) 396(k)(5)............ 17

47 U.S.C. (Supp. V) 396(k)(6)(B)(ii), as

amended by Pub. L. No. 97-35, Title

XII, Section 1227(d), 95 Stat. 729...... 19

47 U.S.C. (Supp. V) 396(k)(9)............ 17

47 U.S.C. (Supp. V) 397(5) .............. 16, 17

Ss SUP dV b oc sh ova ede tes ceseeeee 16, 17

47 U.S.C. (Supp. V) 397(9) ...........66. 16

47 U.S.C. (Supp. V) 398(b) ..........6..- 17

ge ee POAT TT er eee passim

47 U.S.C. (Supp. V) 399, as amended by

the Public Broadcasting Amendments

Act of 1981, Pub. L. No. 97-35, Title

XII, Section 1229, 95 Stat. 730 .. 2, 17, 44, la

47 U.S.C. (Supp. V) 399a, as amended by

Pub. L. No. 97-35, Title XII, Section

SG ED Sacvaseer das cecondes 16

Pub. L. No. 97-35, Section 561, 95 Stat. 469... 19

2 U.S.C. (Supp. V) 28Be(a) ...........cceeeee 4

a Es a a oe 0.69 4606009 46006 de E OOS 47

TEE ine phbe dou oN ease er vanneneees 47

CE inccuscuebad chdackeesteeews 45

ee WP EEE 0 td cesccccncsncuents 47

eS WP TOD osc cccsdasceesdvenncs 45

EE cu ala cidaicbeve ees tnwts Ut 45

Ala. Code § 16-7-2 (Cum. Supp. 1982) ........

Alaska Stat. § 44.21.025 (1980) ............+5.

Ark. Stat. Ann. § 80-3902 (1980) .............

Cal. Gov’t Code § 8811 (1980) ...........5005.

Colo. Rev. Stat. § 22-50-113.7 (Cum. Supp.

BE ncaa cats anwass kaa ieneeenaannensee 21

Del. Code Ann. tit. 14, $§ 129° 130 (1981)..... 21

Vul

Constitution, statutes and regulations—Continued:

Fla. Stat. (1977 & Cum. Supp. 1983):

WE ev Gbicscadtbaaeswrass . capeaeee

Ga. Code Ann. § 20-2-12 (Cum. Supp. 1982)...

Hawaii Rev. Stat. § 314-2 (1976) ..........665

Iowa Code Ann. § 18.138 (West 1978) ........

Kan. Stat. Ann. § 75-4906 (1977) ....... oeaee

Ky. Rev. Stat. Ann. (Bobbs-Merrill 1980):

PE his ci covveccdesesucnsisacinres

D PEO occvcccdsenteaseuuncuutove

La. Rev. Stat. Ann. (West 1982):

DPE bbw ace 340 sciraeads snes ieee

Mass. Gen. Laws Ann. ch. 65 (1982) ..........

Mich. Comp. Laws § 15.2090 (1979) ..........

N.C. Gen. Stat. § 143B-426.9 (Cum. Supp.

BOGE). ck nk.iksccdnciceseneesessnekanuaueee

N.D. Cent. Code ch. 15-65 (1981).............

Neb. Rev. Stat. § 79-2102 (1981) .............

N.J. Stat. Ann. (West Cum. Supp. 1982):

Io ain.cacevececsccenccadee vane

BDU vccvivdiccvcsvcecevcctocscnouveeesee

SORE) civviccvcéescocstecessvecnbiedvesteena

TEEN cu ccvewbissnsesnvanenepabeuunee

9 BPIOD ce cccncopesgsvcccwsesusians vues

Or. Rev. Stat. § 354.115 (Repl. 1981).........

71 Pa. Cons. Stat. An:. § 1188.2 (Purdon Cum.

Dit, SORE aves ciuncdédetuseaterecdeea

R.I. Gen. Laws § 16-28-3 (1981)..............

S.C. Code Ann. § 59-7-10 (Law. Co-op. 1977)..

S.D. Codified Laws Ann, (1982):

OD SRM Soc ieccs daveb ates tanh eeweuen

Constitution, statutes and regulations—Continued: Page

the 37

Tenn. Code Ann. § 49-3853 (Cum. Supp. 1982) 21

Utah Code Ann. § 53-42-1 (1981) ............. 21

W. Va. Code § 10-5-2 (1976) .......... 000s 21

Wyo. Stat. § 9-3-1102 (1977) ........ cee eae 20

47 C.F.R. Part 73:

eS BC, | 16

SU TURE) vcr ccccccccccccscccvces 16

Section 78.1920 .........ccceccesccesvces 39

Section 73.1980 .........ccecceccvccevees 39

Miscellaneous:

Broadcasting/Cablecasting Yearbook 1983..... 29

E. Barnouw, The Image Empire—A History of

Broadcasting in the United States (1970).... 12, 15

Bureau of the Census, Statistical Abstract of

the United States 1976 ...... ccc ccc ceeceecs 12

Bureau of the Census, Statistical Abstract of

the United States, 1982-83 0.0... ccc cece 18

Canby, The First Amendment and the State as

Editor: Implications for Public Broad-

casting, 52 Tex. L. Rev. 1123 (1974)........ 17

Carnegie Commission on Educational Televi-

sion, Public Television: A Program for Ac-

tion (1967) (“Carnegie I”) ........44. 11, 12, 14, 16

Carnegie Commission on the Future of Public

Broadcasting, A Public Trust (1979) (“Car-

ease Ue hecccveccocccece 11, 12, 18, 38

78 Cong. Rec. (i934):

aS eecipiccrcccksessccsense 11

Miscellaneous—Continued: P

SUE Warexeuesdnneveccantontneaes ed

SSRSRKRKK KSKKH

CPB, ‘aaniiel Report 10861 .....066. 17, 18, 19, 26, 44

CPB, 1982 CPB Public Broadcasting Directo-

ID cuinvacatgesupeeskapoansscon 3, 12, 13, 18, 20, 21

CPB, Policy for Public Radio Station Assist-

QE CIE). -secvavicccnaccusnsctvscenection 18

CPB, Public Broadcasting Income Fiscal Year

BRE GEE sds on dcoedvancesavinravelausen 18, 19

CPB, Ten Years of Public Broadcasting,

PONTE THAD caver vcawegetertasaunemicen 15

Dep’t of the Treasury, /nternal Revenue Serv-

ice Pub. No. 78 (Rev. 1-82), Cumulative

Lists of Organizations (1981) ...........4..- 3

T. Emerson, The System of Freedom of Ex-

RIE SED db an.e o's bi on54kaeneacders cha 16

Executive Office of the President, Office of

Management and Budget, Appendix to the

Budget for Fiscal Year 1984 .........00000e 18

FCC News Release (Mar. 14, 1983)........... 18

FCC Public Notice, TV Broadcast Applications

Accepted for Filing and Notification of Cut-

Off Date for San Bernardino, California

Get Ge SEs radu pacceses satecmeieanceae 29

Miscellaneous—Continued:

FCC, Report of Proposed Allocations from

25,000 Kilocycles to 30,000,000 Kilocycles

Big SED Be Naar ay ep Cp rr

FCC Report Pursuant to § 307(c) of the Com-

peessontione Act (1GG6) .....ccessccsccccsss

39 Fed. Reg. (1974):

CCN as es dbessceeweaihaewes i

dee: CER A ee re

S. Frost, Education’s Own Stations (1937) ....

Hearings on H.R. 3238 Before the Subcomm.

on Telecommunications, Consumer Protec-

tion, and Finance of the House Comm. on

Energy and Commerce, 97th Cong., lst

DI end yico as cu'xs $40 4d tesak eens

H.R. Conf. Rep. No. 794, 90th Cong., 1st Sess.

PNET On Te cKevernaiateebineser cds snkaanee

H.R. Conf. Rep. No. 95-1774, 95th Cong., 2d

Cs.) vk i cadapans cadadeenneeu enn

H.R. Conf. Rep. No. 97-208, 97th Cong., 1st

EE oo cx chicane Cave skvanvaeres

H.R. Rep. No. 572, 90th Cong., 1st Sess.

at ths ava eesne nsdn eunas ia Or Re

H.R. Rep. No. 95-1178, 95th Cong., 2d Sess.

GS cick RabGwabises sed dibaodscud end shan

S. Katzman & N. Katzman, Public Television

Programming Content by Category Fiscal

Rf ee errr pee Perr.

Lucoff, The University and Public Radio:

Who's in Charge? 7 Pub. Telecommunica-

tions Rev., No. 5, at 22 (Sept./Oct. 1979) ...

Markup of H.R. 3238 by the Subcomm. on

Telecommunications, Consumer Protection,

and Finance of the House Comm. on Energy

and Commerce, 97th Cong., 1st Sess. (1981)

Page

Miscellaneous—Continued: Page

Markup of Public Broadcasting Legislation by

the Subcomm. on Telecommunications, Con-

sumer Protection, and Finance of the House

Comm. on Energy and Commerce, 95th

te) a ue 27, 28

A. Meiklejohn, Political Freedom (1948) ...... 30

Note, The Leyal Problems of Educational Tel-

evision, 67 Yale L.J. 639 (1958) ............ 11

Note, The Public Broadcasting Act: The Licen-

see Editorializing Ban and the First Amend-

ment, 13 U. Mich. J. L. Ref. 541 (1980)..... 29

Notice of Proposed Rule Making In re Repeal

or Modification of the Personal Attack and

Political Editorial Rules, FCC Gen. Docket

No. 83-484 (adopted May 12, 1983) ......... 39

Public Broadcasting System: Message to the

Congress, 2 Pub. Papers 1743 (Oct. 6, 1977). 25

Public Television Act of 1967: Hearings on

H.R. 6736 and S. 1160 Before the House

Comm. on Interstate and Foreign Com-

merce, 90th Cong., 1st Sess. (1967)...... 15, 24, 25

RCA Broadcast Systems, Television & Cable

Factbook (1982-83 ed.) .......cceeeeeees 12, 13, 20

Remarks Upon Signing the Public Broad-

casting Act of 1967, 2 Pub. Papers 474 (Nov.

Ny SOE iw sdkbeadecwrdevactessamenelne 15

R. Schenkkan, C. Thurston & A. Sheldon, Case

Studies in Institutional Licensee Manage-

RT IEE «nk enue 050s coneecaes ccaeiene 36-37

S. 1160, 90th Cong., 1st Sess. (1967).......... 26

S. Rep. No. 67, 87th Cong., Ist Sess. (1961)... 13

S. Rep. No. 222, 90th Cong., Ist Sess. (1967).. 23, 24

S. 2883, 95th Cong., 2d Sess. (1978) .......... 3, 25

XIII

Miscellaneous—Continued:

Special Message to the Congress: “Education

and Health in America,” 1 Pub. Papers 250

EE 6 iavsecevdiccusvenovhoawass

The Public Television Act of 1967: Hearings on

S. 1160 Before the Subcomm. on Communi-

cations of the Senate Comm. on Commerce,

Page

15, 23

90th Cong., Ist Sess. (1967) ............ 15, 23, 27

Thurston, Jnsulation and Institutional Licen-

sees, 8 Pub. Telecommunications Rev., No.

By OE BO CRAPS AGP, TOBE) cece ccccscvesces

Wollert & Haney, Editorializing and Fund-

raising: Does It Mix?, 7 Pub. Telecommuni-

cations Rev., No. 5, at 34 (Sept./Oct. 1979) .

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-912

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT

Vv.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the district court (J.S. App. la-20a) is re-

ported at 547 F. Supp. 379.

JURISDICTION

The judgment of the district court (J.S. App. 2la-22a)

was entered on August 5, 1982. The notice of appeal (J.S.

App. 23a) was filed on September 3, 1982. On October 26,

1982, Justice Rehnquist extended the time for docketing an

appeal until December 1, 1982, and the appeal was dock-

eted on that date. On February 28, 1983, the Court post-

poned further consideration of the question of jurisdiction

to the hearing on the merits. The jurisdiction of this Court

rests on 28 U.S.C. 1252.

We addressed the question of this Court’s jurisdiction in

the reply brief filed in response to appellees’ motion to dis-

miss or affirm and have little to add to it. We stress here

the following three fundamental points. First, 28 U.S.C.

1252, on which appellate jurisdiction rests, was enacted to

ensure a “prompt determination by the court of last resort

of disputed questions of the constitutionality of acts of the

Congress” (H.R. Rep. No. 212, 75th Cong., 1st Sess. 2

(1937)). The section therefore carefully specifies that appeal

may be taken from “an interlocutory or final” order (28

U.S.C. 1252; emphasis added).' Appellees’ argument would

defeat that intent by delaying such litigation until the

wholly unrelated question of attorneys fees is resolved in

the lower court. Second, appellees in this case were not in

any way prejudiced by the timing of the filing of the August

16 motion regarding attorneys fees or the notice of appeal.

Third, the issue still pending in district court—the award

of attorneys fees—is completely separate from the consti-

tutional question raised in our appeal, and there is accord-

ingly no sensible reason why resolution of the constitutional

question should await the lower court’s disposition of the

matter of attorneys fees.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions involved are

set forth in the attached Appendix, infra, la.

STATEMENT

This case raises the question whether Congress’s consid-

ered judgment, that noncommercial educational broadcast

stations receiving federal government subsidies should be

prohibited from editorializing and from partisan participa-

tion in political elections, is constitutionally permissible.

Congress’s judgment is embodied in 47 U.S.C. (Supp. V)

399, as amended by the Public Broadcasting Amendments

Act of 1981, Pub. L. No. 97-35, Title XII, Section 1229, 95

Stat. 730, which prohibits those noncommercial educational

broadcasting stations that are subsidized by grants from

the Corporation for Public Broadcasting (“CPB” or “the

Corporation”) from “editorializing” and from “support[ing]

or oppos[ing] any candidate for political office.”

Congress made it clear in enacting this provision that its

intention was not to restrict the airing of controversial or

political programs but only “editorials representing the

opinion of the management of [the] station” (H.R. Conf.

Rep. No. 794, 90th Cong., 1st Sess. 12 (1967)). According-

' See McLucas v. DeChamplain, 421 U.S. 21, 30 (1975).

ly, the Federal Communications Commission has construed

the term “editorializing” to mean only the “use of

noncommercial educational broadcast facilities by licensees,

their management or those speaking on their behalf for the

propagation of the licensees’ own views on public issues

** *” (In re Complaint of Accuracy in Media, Inc., 45

F.C.C.2d 297, 302 (1973) (emphasis added)). Subsidized

public stations—like all other stations—remain free to air

programs espousing views on all matters of public concern,

whether political or nonpolitical, partisan or nonpartisan,

so long as it is “made clear that the editorials are not made

on behalf of the licensee or its management” (J.A. App.

8a).?

As originally enacted in 1967, Section 399 applied to all

noncommercial broadcasting stations. In 1978, the Senate

defeated a proposal to limit the provision to stations “li-

censed to any governmental agency or instrumentality.”

In 1979 appellees—the Pacifica Foundation, the League of

Women Voters, and Congressman Henry Waxman—

brought this suit in the United States District Court for the

Central District of California challenging the constitutional-

ity of Section 399.* Pacifica is a nonprofit, tax-exempt cor-

poration that owns and operates noncommercial radio sta-

tions in five major cities: New York; Los Angeles;

Washington, D.C.; Berkeley, California; and Houston.°

Following various procedural and jurisdictional complica:

2 Indeed, Section 399 permits “the expression of views on public is-

sues by employees of a noncommercial educational broadcast station in

their capacity as individuals * * * provided the surrounding facts and

circumstances do not indicate that such views are represented or in-

tended as the official opinion of the licensee or its management” (/n re

Complaint of Accuracy in Media, Inc., supra, 45 F.C.C.2d at 302).

3 S. 2883, 95th Cong., 2d Sess. § 404(a) (1978). See pp. 25-26, infra.

* The district court did not decide whether the League or Congress-

man Waxman had standing to bring this action, since their complaint,

as ultimately amended, did not seek any relief not also requested by

Pacifica (J.S. App. 7a).

5J.S. App. 6a; Dep’t of the Treasury, /nternal Revenue Service

Pub. No. 78 (Rev. 1-82), Cumulative List of Organizations 764 (1981);

CPB, 1982 CPB Public Broadcasting Directory 21, 22, 25, 39, 47.

tions,® the government urged the court to uphold the con-

stitutionality of the statute at least insofar as it applied to

publicly-funded stations.? While the suit was pending, Con-

gress amended the prohibition against editorializing to ap-

ply only to those stations that receive CPB funds. Appel-

lees then amended their complaint and abandoned their

attack on the portion of the statute forbidding public broad-

casters to endorse political candidates; the sole remaining

claim was that the ban on editorializing violates the Consti-

tution (J.S. App. 5a).

The district court granted summary judgment in favor of

appellees (J.S. App. 2la-22a). It did so on the premise (id.

at lla) that “Section 399 can survive scrutiny under the

First Amendment only if it meets the standard generally

used in First Amendment cases, that is, that it serves a

compelling government interest and is narrowly tailored to

that end.” Observing that “regulations such as § 399 are

presumptively unconstitutional” (ibid.), the court held that

Section 399 was not supported by any compelling govern-

ment interest (id. at 12a-18a).

The court rejected the contention (J.S. App. lla) that

“§ 399 serves a compelling government interest in ensuring

that funded noncommercial broadcasters do not become

propaganda organs for the government.” The court (id. at

12a-13a) considered Congress’s fear of undue government

* In October 1979, in response to the filing of this suit, then Attor-

ney General Civiletti informed the Senate that the Department of Jus-

tice would not defend the constitutionality of the statute, in part be-

cause it applied to all public broadcasting stations and not just to those

receiving federal aid (J.A. 13). The Senate then adopted a resolution,

pursuant to 2 U.S.C. (Supp. V) 288e(a), directing its counsel to inter-

vene as amicus curiae and to defend the suit (J.S. App. 3a & n.3). The

district court nevertheless dismissed the complaint on the ground that

there was no justiciable controversy because the government had de-

cided not to enforce the statute (J.S. App. 4a). In April 1981, while the

case was pending on appeal, Attorney General Smith notified the Sen-

ate that the government would defend the constitutionality of the stat-

ute (J.A. 15-16). The court of appeals remanded the case to the district

court; the district court vacated its order of dismissal; and the Senate

Legal Counsel withdrew from the litigation (ibid. ).

7 See Defendant’s Memorandum of Points and Authorities in Opposi-

tion to Plaintiffs’ Motion for Summary Judgment 11-20.

influence resulting from federal funding to be unfounded

because “CPB funding in 1977 did not constitute more than

approximately 25%” of the budget of the average station

receiving such aid and because the amount of CPB funding

was being reduced. The court also concluded (id. at

13a-14a) that Congress’s fear was unfounded because the

CPB “is an independent, nonprofit, private corporation”;

its “funding decisions are based on objective, nondis-

cretionary criteria”; and the “fairness doctrine”*® prevents

broadcasters from presenting “one-sided political propagan-

da.” The court rejected (id. at 15a) the government’s con-

tention that “restrictions on editorializing are necessary to

ensure that government funding of noncommercial broad-

cast stations will not interfere with the balanced presenta-

tion of opinion on those stations,” concluding (id. at 17a)

that “(t]he protections offered by the fairness doctrine ef-

fectively eliminate any substantial danger of ‘unbalanced’

programming.”®

SUMMARY OF ARGUMENT

This case presents the question whether 47 U.S.C. 399,

which prohibits “editorializing” and “support[ing] or

oppos[ing]” political candidates by noncommercial broad-

casting stations that receive federal subsidies from the Cor-

poration for Public Broadcasting, violates the First Amend-

ment. The term “editorializing” means the expression of

views directly by or on behalf of the station’s management;

the statute does not otherwise restrict expression and in no

way prevents controversial public affairs programming.

The cardinal teaching of this Court’s cases involving free-

dom of expression in broadcasting is that broadcasting is a

special national resource, and that the validity of any chal-

lenged regulation must be decided in the context of its

unique characteristics and problems. Given the special

®* The meaning of the fairness doctrine is discussed at pp. 38-39 &

n.70, infra.

®*The district court “base(d] its decision squarely on the First

Amendment” and did not rule on appellees’ equal protection challenge

to the statute (J.S. App. 19a).

character of noncommercial—“ public” —broadcasting, Sec-

tion 399 is plainly constitutional.

A. Public broadcasting is the product of a national com-

mitment, financed by government, to create broadcast

services not provided by the private sector. It operates on

scarce and valuable television and radio channels reserved

by government for noncommercial use. The federal govern-

ment provides large subsidies to public broadcasting for

construction of facilities, for production of programs, and

for station operations. It also provides critical tax subsidies

to tax-exempt noncommercial stations. State and local gov-

ernments also provide substantial subsidies. Direct govern-

ment subsidies total 59% of public television income and

67% of public radio income.

Units of government and government instrumentalities

own more than two-thirds of all public television stations

and approximately three-fifths of all public radio stations.

Public television and radio are, in sum, inextricably en-

twined with government. Created and sustained in order to

promote excellence and diversity in broadcasting, they

were designed as a community resource—not a private

vehicle—to be supported by all and to serve all.

To ensure that public broadcasting fulfills its public mis-

sion, it is subject to special restrictions. Public stations

may not sell time or accept advertising. They may not oper-

ate for profit, may not support or oppose political candi-

dates, and are subject to special rules of financial disclo-

sure, accounting, and employment practices. Congress also

has enacted special measures designed to see that public

stations broadcast educational and cultural programs, meet

the educational and cultural needs of their communities,

and maintain strict objectivity and balance in controversial

programs and series.

B. Congress has repeatedly manifested its judgment

that the public broadcasting system can achieve its pur-

poses only if it refrains from direct partisan interventions

in the political arena. More particularly, the legislative his-

tory of Section 399 demonstrates Congress’s judgment that

allowing owners and managers to use public stations to edi-

torialize and electioneer would invite government pressure;

would unfairly devote public moneys to the propagation of

private views; would place an official imprimatur on certain

views while disfavoring others; and would jeopardize the

broad support that public broadcasting needs.

C. This Court’s decisions leave ample space for that con-

gressional judgment. The Court has recognized that, in

view of broadcasting’s special characteristics, the First

Amendment permits—indeed, is served by—regulations to

insure diversity and fair balance in the use of that medium.

Thus, while the right of the print media to be partisan is

virtually unlimited, this Court has upheld significant limita-

tions upon the right of all broadcasters to serve private and

partisan ends

D. Public stations constitute a publicly-supported educa-

tional and cultural resource for the entire community; their

purpose is not to become outlets for the propagation of spe-

cific private views. If such stations were permitted to edi-

torialize or electioneer, they would become inviting targets

for narrowly based groups hoping to acquire a powerful

voice at public expense. And embroilment in partisan politi-

cal controversies could distract licensees from their public

mission and threaten the public support educational broad-

casting needs to maintain its independence, its privileged

status, and its financial health.

The ban on editorializing also insuletes public stations

against pressure to become instruments of government

propaganda. Government holds the purse-strings, sup-

plying more than 60% of public broadcasting income. It

owns the majority of public stations. The danger of govern-

ment control is, therefore—as Congress has repeatedly

found—formidable, and justifies Seci:n 399’s protective

shield.

The prohibition against editorializing also protects First

Amendment values by preventing the use of tax funds to

promote private views with which many taxpayers may dis-

agree. “A system which secures the right to proselytize

* * * must also guarantee the concomitant right to decline

to foster such concepts.” Wooley v. Maynard, 430 U.S.

705, 714 (1977).

E. The ban on editorializing interferes only minimally

with the free marketplace of ideas. It only prohibits the

privileged use of public stations for “official” expressions of

opinion by or on behalf of station owners and management.

Public broadcasting in fact provides excellent public affairs

programming on which a lively and diverse range of views

is expressed on many controversial issues. And station

owners and managers—like the rest of the public—remain

free to express their views by all other means.

Section 399 is also constitutional because it represents a

valid exercise of Congress’s Spending Power. Section 399

does not prevent licensees of public stations from ex-

pressing their opinions. It simply provides that the govern-

ment wiil not pay for it.

For First Amendment purposes, Section 399 is indistin-

guishable from Section 501(c)(3) of the Internal Revenue

Code of 1954 (26 U.S.C.), which grants a subsidy in the

form of tax exemption only to those nonprofit organizations

that do not devote a substantial part of their activities to

lobbying or propagandizing. In Regan v. Taxation With

Representation, No. 81-2338 (May 23, 1983), this Court

unanimously upheld that measure. The Court found that

Section 501(c)(3) does not prevent any organization from

exercising its First Amendment rights but merely repre-

sents Congress’s refusal to pay for those activities out of

public funds. The provision at issue here is constitutional

for precisely the same reason.

Section 399 is readily distinguishable from situations in

which it was held that government improperly denied a

person a benefit because he exercised a constitutional right.

The measures held unconstitutional in those cases were

conteni-based restrictions adopted to restrain speech rath-

er than to insure that government funds were used for pub-

lie purposes. In contrast, Section 399 is a content-neutral

regulation designed to assure that public funds do not go to

subsidize private political and ideological activity.

ARGUMENT

SECTION 399’s PROHIBITION AGAINST “EDITORI-

ALIZING” IS A PERMISSIBLE REGULATION OF

PUBLIC BROADCASTING STATIONS RECEIVING

GRANTS FROM THE CORPORATION FOR PUBLIC

BROADCASTING

I. CONGRESS HAS POWER TO ESTABLISH AND FI-

NANCE A PUBLIC NONCOMMERCIAL AND EDU-

CATIONAL BROADCASTING SYSTEM AND TO RE-

QUIRE THAT SUBSIDIZED STATIONS LICENSED

AS PART OF THAT SYSTEM REFRAIN FROM DI-

RECT EDITORIALIZING AND POLITICAL

ELECTIONEERING

This case concerns Congress’s power to regulate educa-

tional noncommercial broadcasting stations receiving feder-

al government subsidies. It is not a coincidence that these

stations are often referred to as public broadcasting sta-

tions, and that together they constitute the public broad-

casting system. The very existence of this sort of broad-

casting is a product of a national commitment, financed by

government funds, to create and sustain broadcast services

and programs of a sort not provided by the private, com-

mercial sector of the broadcast industry. Public broad-

casting stations exist in order to serve as a special commu-

nity resource—not in order to benefit their owners, either

by enriching them or by giving them special power and

influence.

Ever since Congress undertook a serious national pro-

gram to create and sustain a public broadcasting system, it

has manifested its considered judgment that the system can

achieve its purposes only if it remains, in some sense, non-

partisan and nonpolitical. This judgment is an integral part

of the scheme that Congress set on foot when it created and

funded the system. The judgment is manifested in the pro-

vision at issue in this case, which in effect provides that the

owners and managers of federally-funded noncommercial

educational stations may not use those stations to engage in

direct partisan interventions in the ideological and political

arena.

The district court’s decision, invalidating this provision,

seriously interferes with the congressional plan for public

broadcasting. It simply sets aside Congress’s judgment

that allowing public stations to editorialize would interfere

with the rendering of the services they were designed to

provide. And it flatly overrules Congress’s judgment that

public broadcasting must be protected from the political

pressures that would be evoked by partisan interventions

into the political and ideological arena.

The district court’s decision also ignores (ie central les-

son of this Court’s decisions about the meaning of the First

Amendment in the context of broadcasting. That lesson is

that broadcasting as a whole is a special national resource,

the wise use of which requires and justifies governmental

umpiring of a sort that may be inappropriate—because

inapposite—in other contexts. The cardinal teaching of this

Court’s broadcast cases is that the validity of Congress’s

regulatory judgments must be decided contextually, in the

framework of an understanding of the special problems and

promises of this medium—rather than on the basis of a

wooden application of abstract rules derived from other set-

tings. This principle should, of course, be seen as even

more telling when the subject of regulation is public broad-

casting, which depends so heavily on a public judgment to

reserve space for and fund specific kinds of broadcast serv-

ices. Nevertheless, the district court dealt with Section 399

without reference to context, as if it were any other statute

“restricting the discussion of public issues” (J.S. App. 9a).

This Court has decided numerous and well-known cases

involving commercial radio and television, and is fully fa-

miliar with that industry and with the doctrines defining

the permissible scope of its regulation. By contrast, the

Court has decided few cases involving noncommercial

broadcasting and has not had occasion to define the extent

to which government may regulate its activities in light of

its special history, character, and needs. We believe that

understanding Section 399 and the role it plays in

effectuating the congressional plan for public broadcasting

requires an understanding of how this part of the broadcast

universe developed, how it is sustained, and by whom it is

controlled. We therefore open this part of our brief with an

account of the public broadcasting system (“A”). We then

outline the history of Section 399 and sketch the legislative

materials that cast light on its purposes (“B”). Part “C”

shows that this Court’s cases provide a doctrinal frame-

work that gives ample space for Section 399. Part “D” then

provides a detailed analysis of the significant public pur-

poses that justify that provision. We conclude in Part “E”

by demonstrating that the effects of Section 399 in re-

straining speech are minimal.

A. The public broadcasting system was publicly created

and is publicly supported to be a community re-

source!”

The public broadcasting system developed haltingly over

the first 50 years of its existence. It assumed its present

form when Congress made a major national commitment by

enacting the Public Broadcasting Act of 1967, Pub. L. No.

90-129, 81 Stat. 365, 47 U.S.C. (& Supp. V) 390 et seq.

1. Educational institutions have operated radio stations

since 1919.'! By 1934, the Federal Radio Commission had

issued nearly 300 licenses to educational institutions. Most

of these licensees had, however, met insuperable financial

difficulties and had assigned their licenses to commercial

stations;'? only 2% of outstanding licenses were held by

noncommercial stations. '*

In 1934, Congress passed the landmark Communications

Act. In connection with that Act, Congress considered

whether to reserve 25% of all AM radio facilities for sta-

tions operated by nonprofit organizations. See 78 Cong.

Rec. 8828-8829 (1934). Congress decided, however, not to

1° For comprehensive accounts of the noncommercial public broad-

cast system, we refer the Court to the two landmark reports on that

system sponsored by the Carnegie Corporation: Carnegie Commission

on Educational Television, Public Television: A Program for Action

(1967) (“Carnegie I"), and Carnegie Commission on the Future of Pub-

lic Broadcasting, A Public Trust (1979) (“Carnegie 11”).

1 §. Frost, Education's Own Stations 464 (1937).

2 Note, The Legal Problems of Educational Television, 67 Yale

L.J. 639, 642 & n.14 (1958).

1 78 Cong. Rec. 8829 (1934).

deal with this matter by legislation; rather, the issue was

left to the FCC. The Commission, in turn, conducted hear-

ings but determined not to act (FCC Report Pursuant to

§ 307(c) of the Communications Act 5 (1935)).

After the Second World War, the Commission recognized

that noncommercial broadcasting could not flourish without

special protection. In 1945, therefore, it decided to allocate

20 FM radio channels exclusively for educational use.’

More important, in 1952—before the first educational tele-

vision station went on the air'*>—the Commission reserved

242 television channels for educational broadcasting, includ-

ing 80 on the VHF band.'® The critical importance of this

step cannot be exaggerated. Without it, there is little doubt

that virtually all of the scarce and lucrative VHF channels

in major markets would have been occupied by commercial

broadcasters.'? (The UHF band was relatively insignificant

until after 1962, when Congress required that all new sets

be capable of receiving both VHF and UHF.'® And even to-

day, UHF outlets continue to be much less desirable than

VHF stations).'® As a result of the reservations, VHF edu-

14 FCC, Report of Proposed Allocations from 25,000 Kilocycles to

30,000,000 Kilocycles 77 (1945).

1S Carnegie I, supra, at 21.

16 Sixth Report and Order, 41 F.C.C. 148 (1952).

'7 In the then ten largest cities, commercial stations had taken all

available VHF channels in seven (New York, Philadelphia, Los An-

geles, Detroit, Baltimére, Cleveland, and Washington, D.C.). Bureau

of the Census, Statistical Abstract of the United States 1976, at 23-24;

Sixth Report and Order, 41 F.C.C. 148 (1952). Except for New York,

all these cities still lack a noncommercial VHF outlet. CPB, 1982 CPB

Public Broadcasting Directory 67, 69, 74-75, 80; RCA Broadcast Sys-

tems, Television & Cable Factbook 1014, 1046 (1982-83 ed.). A non-

commercial VHF station for the New York City area was established

in 1962 when an educational broadcasting organization bought a com-

mercial station in Newark, N.J., for $5.75 million. Carnegie I/, supra,

at 315-316; E. Barnouw, The Image Empire—A History of Broad-

casting in the United States 197-198 (1970).

1® See All Channel Receiver Act, Pub. L. No. 87-529, Sections 1 and

2, 76 Stat. 150 and 151 (codified at 47 U.S.C. 303(s) and 330(a)). This

legislation “was of crucial importance to noncommercial television” (E.

Barnouw, supra note 17, at 201). See also Carnegie //, supra, at 34.

'* UHF transmitters require much greater power than VHF and are

cational stations came into existence in those major cities

(e.g., Boston, Chicago, and San Francisco) where channels

were still available.?°

Despite the reservation of special channels, educational

broadcasting developed slowly. By the mid-1950’s, less than

half of the reserved television channels had been applied

for. Many of these unactivated channels were in

communities that could support additional commercial out-

lets.24_The Commission therefore began deleting certain

unactivated educational reservations. ??

In 1962, there were only 54 educational TV stations on

the air; two-thirds of the population had no access to educa-

tional television. S. Rep. No. 67, 87th Cong., 1st Sess. 3

(1961). A Senate report (ibid.) attributed this slow prog-

ress to the fact that “the problem of fundraising has seemed

almost insurmountable in spite of almost herculean efforts

on the part of many of our leading educators and civic

leaders.” The report also concluded (ibid.) that “once a sta-

tion has been built, State legislatures, local educational sys-

tems, and local communities raise the funds to produce the

programming and operate the stations.” Congress there-

fore enacted the Educational Television Facilities Act of

1962, Pub. L. No. 87-447, 76 Stat. 64, which authorized $32

million over five years to aid the construction of educational

stations. By 1967 when this program expired, 126 educa-

tional stations were operating.

less efficient, and UHF reception is generally inferior. Carnegie 11,

supra, at 239 n.9.

20 On the following dates, noncommercial VHF stations began oper-

ations in major cities. In 1953: KUHT in Houston. In 1954: WQED in

Pittsburgh, KQED in San Francisco, KETC in St. Louis, and KCTS in

Seattle. In 1955: WGBH in Boston and WPBT in Miami. In 1956:

KRMA in Denver. In 1957: WTTW in Chicago, WMVS in Milwaukee,

KTCA in Minneapolis-St. Paul, WYES in New Orleans, and KOAC in

Portland, Oregon. In 1958: KUED ip Salt Lake City. In 1960: KERA

in Dallas. In 1961; KAET in Tempe (Phoenix), Arizona, CPB, 1982

CPB Public Broadcasting Directory 66, 68, 70, 71, 73, 74, 76, 81, 82,

84, 85, 86; RCA Broadcast Systems, Television & Cable Factbook 1014

(1982-83 ed.).

2! Note, supra note 12, at 646.

22 Report and Ord’, 41 F.C.C. 784, 786 (1956).

In 1967, a Carnegie Corporation Commission created to

study educational broadcasting found that there were too

few stations and that those in existence were “inadequately

staffed, inadequately equipped, and inadequately financed.

Deficiencies affect the entire system * * *.” Carnegie I,

supra, at 33 (see note 10, supra). The Commission recom-

mended creation of a federally-chartered “Corporation for

Public Television” to provide support for noncommercial

broadcasting, including funding for program production,

and the establishment of “interconnection” facilities to per-

mit nationwide broadcasting of noncommercial programs

(id. at 36-41). The Commission also recommended that fed-

eral funds be distributed to stations to support their gener-

al operations, and that a new federally-funded facilities pro-

gram be started (id. at 74-80). To finance these measures

without subjecting public broadcasting to political pres-

sures, the Commission recommended a dedicated federal

excise tax on the sale of all television sets (id. at 68-73).

2. The most important event in the history of noncom-

mercial broadcasting was the enactment of the Public

Broadcasting Act of 1967, Pub. L. No. 90-129, 81 Stat. 365,

47 U.S.C. (& Supp. V) 390 et seg. Sponsored by President

Johnson and incorporating most of the recommendations of

the Carnegie Commission, this statute created the public

broadcasting system of today. Title I provided new con-

struction grants. Title II created the Corporation for Public

Broadcasting, a nonprofit, government-chartered corpora-

tion governed by a 15-person board of directors appointed

by the President with the advice and consent uf the Senate

(see 47 U.S.C. (& Supp. V) 396(b)-(f)). Tae Corporation

was authorized to make grants to stations, to fund the pro-

duction of programs, and to assist in tne establishment and

development of interconnection systems (47 U.S.C. (Supp.

V) 396(g)), such as the subsequently created Public Broad-

casting System.?* Departing from the Carnegie Commis-

23 The Public Broadcasting System (PBS) “was established by the

Corporation for Public Broadcasting and the nation’s public television

licensees in 1969 as the interconnection service for public television. It

was reorganized in 1973 as a membership-supported organization. PBS

is responsible for the scheduling, promotion and distribution of the na-

sion recommendation, Congress accepted President

Johnson’s proposal that the Corporation’s funds be drawn

from general revenues until the question of financing could

be studied further.24 This method of financing has in fact

been retained (see 47 U.S.C. (Supp. V) 396(k), as amended

by Pub. L. No. 97-53, Title XII, Section 1227, 95 Stat. 727).

Congress’s purpose in creating the new broadcasting sys-

tem was lofty. Public broadcasting was to provide a diversi-

ty of educational, cultural, and public affairs programming

that commercial stations had failed to furnish. During the

late 1950s and 1960s, there was concern that commercial

television had settled into a disappointing pattern.?° Public

broadcasting, in addition to serving its traditional instruc-

tional functions, was to provide a space where excellence

and diversity could flourish. It was to educate, broaden,

challenge, enlighten, and at times disturb; it was to make

history and science and great works of art accessible to a

huge new audience. Its goal was not to create a privileged

outlet for particular tastes or views, but rather to expand

and diversify the audience’s experiences.”®

tional program service to noncommercial television stations across the

country, and for representatior of the public television stations’ inter-

ests at the national level.” CPB, Ten Years of Public Broadcasting,

1967-1977, at 14 (1977). PBS obtains and distributes programming

from member stations and other sources (ibid.). National Public Ra-

dio, established by CPB in 1971, performs an analogous service for

public radio stations (id. at 15).

24 Special Message to the Congress: “Education and Health in

America.” 1 Pub. Papers 250 (Feb. 28, 1967); Pub. L. No. 90-129, Title

II, Section 201, 81 Stat. 367.

25 See E. Barnouw, supra note 17, at 197-198.

28 See Remarks Upon Signing the Public Broadcasting Act of 1967,

2 Pub. Papers 474 (Nov. 7, 1967) (remarks of President Johnson); The

Public Television Act of 1967: Hearings on S. 1160 Before the Sub-

comm. on Communications of the Senate Comm. on Commerc», 90th

Cong., Ist Sess. 128 (1967) (Roger L. Stevens, chairman, National

Foundation on the Arts and Humanities); id. at 173 (Fred Friendly,

former president, CBS News); id. at 366-367 (James D. O’Connell,

White House Director of Telecommunications Management)“Public

Television Act of 1967: Hearings on H.R. 6736 and S. 1160 Before the

House Comm. on Interstate and Foreign Commerce, 90th Cong., 1st

Sess. 28 (1967) (John W. Gardner, Secretary of HEW); id. at 122-123

(James R. Killian, Jr., Carnegie Commission chairman); id. at 279-280

To achieve these objectives, Congress could of course

have created a federally owned and operated broadcasting

network, such as the BBC. Had it done 30, it unquestion-

ably could have insisted that the network refrain from

editorializing and maintain strict political neutrality. “Gov-

ernment is not restrained by the First Amendment from

controlling its own expression.” CBS, Inc. v. Democratic

National Committee, 412 U.S. 94, 139 n.7 (1973) (Stewart,

J., concurring); see also T. Emerson, The System of Free-

dom of Expression 700 (1970). However, partly because of

fear of the enormous power that a federally-owned network

could wield,?7 Congress adhered to the tradition of not

creating federally owned stations and chose instead to fur-

nish assistance to noncommercial stations owned and con-

trolled by others. But in order to make sure that public

broadcasting would remain true to its mission, it was sub-

jected to certain special restrictions aad obligations. Most

important, public broadcasters were prohibited from selling

air time for any purpose whatever—including selling time

for political or public affairs presentations.2® Public broad-

casting stations were required to be government entities or

nonprefit organizations (47 U.S.C. (Supp. V) 397(5) and

(7)). “[E]jducational television or radio programs” were de-

fined by the Act as “programs which are primarily designed

for educational or cultural purposes” (47 U.S.C. 397(9)),

thereby limiting both the types of programs that the Cor-

poration could fund and the activities of the stations it as-

sisted (47 U.S.C. (Supp. V) 396(g)(2)(B) and (C)).2® The

(Julian Goodman, NBC president); id. at 371 (McGeorge Bundy, Ford

Foundation president); id. at 377-379 (Fred Friendly); id. at 446

(William G. Harley, president of National Association of Educational

Broadcasters); Carnegie |, supra, at 13, 17-18, 92-99.

27 See pp. 22-25, infra.

26 See 47 U.S.C. (Supp. V) 397(7); 47 C.F.R. 73.503(d) (radio); 47

C.F.R. 73.621(e) (TV). In 1981, Congress added 47 U.S.C. (Supp. V)

399a, as amended by Pub. L. No. 97-35, Title XII, Section 1230, 95

Stat. 730, which reiterates the ban on advertisements ana specifically

prohibits political or public affairs advertisements.

2% A House provision that would have prohibited mere “amusement”

or “entertainment” was struck by the Conference Committee. H.R.

Conf. Rep. No. 794, 90th Cong., Ist Sess. 13 (1967).

Corporation was instructed to facilitate the development of

a public broadcasting system with “strict adherence to

objectivity and balance in all programs or series of pro-

grams of a controversial nature” (47 U.S.C. (Supp. V)

396(g)(1)(A)).2° In the provision at issue here,

noncommercial stations were forbidden to editorialize or

endorse or oppose political candidates. Finally, stations

receiving CPB funds were made subject to audit by the

General Accounting Office (47 U.S.C. (Supp. V) 396(e)).!

The activities of noncommercial broadcasting stations are

also significantly restricted as a consequence of the fact

that virtually all of those not owned and operated by gov-

ernmental entities are qualified for tax exemption under

Section 501(c)(3) of the Internal Revenue Code (see 47

U.S.C. (Supp. V) 397(5) and (7)), and thus may not devote a

substantial amount of their activities to “carrying on propa-

ganda, or otherwise attempting, to influence legislation.”

The 1967 Act initiated a period of substantial growth in

public broadcasting. The number of noncommercial televi-

sion stations has grown from 126 to more than 290;3? the

99 Cf. Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 297 (D.C. Cir.

1975) (provision is “set of goals to which the Directors of CPB should

aspire,” “not a substantive standard, legally enforceable by agency or

courts”) (footnote omitted); compare Canby, The First Amendment

and the State as Editor: Implications for Public Broadcasting, 52 Tex.

L. Rev. 1123, 1161 (1974).

31 In succeeding years, additional restrictions have been imposed.

Recipient stations not owned by governmental entities are required to

establish “community advisory board[s]” that are “reasonably repre-

sentative of the diverse needs and interests of the communities” they

serve. These boards must be permitted to review the stations’ pro-

gramming goals, service, and significant policy decisions. The boards

must advise the stations whether they are meeting community educa-

tional and cultural needs and may make recommendations. 47 U.S.C.

(Supp. V) 396(k)\(9). Recipient stations are subject to stringent ac-

counting (47 U.S.C. (Supp. V) 396(e)) and financial disclosure (47

U.S.C. (Supp. V) 396(k)(5)) requirements, and special equal employ-

ment opportunity rules (47 U.S.C. (Supp. V) 398(b)). The meetings of

their governing bodies must generally be open to the public (47 U.S.C.

(Supp. V) 396(k)(4)).

32 CPB, Annual Report 1981, at 3.

number of noncommercial radio stations qualified for CPB

grants from 73 to 238.%% In fiscal 1969, Congress appropri-

ated approximately $9 million for the CPB. Pub. L. No.

9-129, Title II, Section 201, 81 Stat. 367. In fiscal 1983,

the figure was $172 million.*4 In 1969 public television sta-

tions broadcast an average of 56 hours per week; by 1981

that figure was 98.7 hours per week.*®

Despite this growth, it is important to remember that

public broadcasting stations remain a scarce and valuable

resource. Most major cities have at least three commercial

television stations; few have more than a single public sta-

tion.** There are still only 111 public VHF TV stations in

the entire country, as compared with 527 commercial VHF

stations.37

3. Public broadcasting’s entanglements with and depen-

dence on government are abundantly clear.

Funding. In fiscal 1981, 60.4% of public broadcasting’s

total income came from federal, state, or local government.

CPB, Public Broadcasting Income Fiscal Year 1981, at 8

(1983). The federal government’s contribution (25.2%) was

the largest, followed by that of state governments (18.8%),

state colleges (10.6%), and local governments (5.8%). Ibid.

Public television, whose revenues dwarf those of public ra-

dio,** received 59% of its income from government; federal

33 CPB, Annual Report 1981, at 3. Only full-service radio stations

are qualified for CPB grants. CPB, Policy for Public Radio Station

Assistance (1981). See p. 26 and note 54, infra.

4 Executive Office of the President, Office of Management and

Budget, Appe ndiac tu the Budget for Fiscal Year 1984, at I-V14.

% CPB, Annual Report 1981, at 3.

36 Of the 25 largest cities, only six (New York, Los Angeles, Wash-

ington, D.C., Boston, San Francises, and Milwaukee) have two public

stations, and virtually none of the smaller cities has more than one.

CPB, 1982 (PB Public Broadcasting Directory 66-88; Bureau of the

Census, Statistical Abstract of the United States, 1982-83, at 22-24.

Even in cities with two public stations, programming between the two

is often duplicative. Public radio stations are overwhelmingly concen-

trated on the FM band. CPB, 1982 (CPB Public Broadcasting Directo-

ry 18-50.

37 FCC News Release (Mar. 14, 1983).

38 In fiscal year 1981, public television received 80% of all public

funds constituted 23.7% of total income. /d. at 9. Public ra-

dio derived 66.8% of its income from government; 31.7%

came from federal sources. /d. at 10.

In fact these figures understate governmental contribu-

tions to public broadcasting. In the year ending October

1981, more than 25% of the CPB’s television subsidies were

devoted to funding television program production and dis-

tribution. CPB, Annual Report 1981, at 28-29. These funds

are, of course, indirect subsidies to stations that would oth-

erwise have to bear full production and distribution costs.

Other federal departments and agencies also finance the

production of television shows supplied to public stations at

no cost or at less than cost. The Department of Educa-

tion, which finances production of such popular programs as

Sesame Street and The Electric Company, has determined

that nearly one-fifth of the programs aired on the average

noncommercial station are produced with its funds.*°

Private donations, which constituted 14.4% of public

broadcasting income in fiscal year 1981,*1 are themselves

governmentally stimulated by the “matching fund” princi-

ple: CPB appropriations are based in part on the amount of

nonfederal revenues received by public stations.4? Even

broadcasting income. CPB, Public Broadcasting Income Fiscal Year

1981, at 8-10 (1983).

3% See, ¢.g., Pub. L. No. 97-35, Section 561, 95 Stat. 469 (Depart-

ment of Education).

4 Letter from Department of Education to James L. Loper, presi-

dent of KCET, reprinted in Br. for Petitioner Community Television

of Southern Calif. at la, Community Television of Southern

California v. Gottfried, Nos. 81-291, 81-799 (filed Feb. 22, 1983); S.

Katzman & N. Katzman, Public Television Programming Content by

Category Fiscal Year 1978 (1979).

41 CPB, Public Broadcasting Income Fiscal Year 1981, at 8 (1983).

In addition to the 60.4% contributed by government and the 14.4%

from private subscriptions, business contributed 11.3%, foundations

2.5%, colleges other than state colleges 2.5%, and all others 6.3%

(ibid.).

42 47 U.S.C. (Supp. V) 396(k)(1)(B) and 47 U.S.C. (Supp. V)

396(k)(1)(C), as amended by Pub. L. No. 97-35, Title XII, Section

1227(a), 95 Stat. 727. See also 47 U.S.C. (Supp. V) 396(k)(6)(B)ii), as

amended by Pub. L. No. 97-35, Title XII, Section 1227(d), 95 Stat.

729.

more important, virtually all noncommercial stations are

exempt from federal tax, and contributions to those sta-

tions are deductible for federal income, estate, and gift tax

purposes (26 U.S.C. 170(c), 2055(a), 2106(a), 2522(a) and

(b)). See Regan v. Taxation With Representation, No.

81-2338 (May 23, 1983), slip op. 3 (“Both tax exemptions

and tax-deductibility are a form of subsidy that is adminis-

tered through the tax system.”).

Ownership. More than two-thirds of the public television

stations now in existence are licensed to governmental enti-

ties.** Many are licensed to state authorities or commis-

sions whose members are public officials or persons

appointed by the governor with the approval of the legisla-

ture.** Other licenses are held by counties, municipalities,

school boards, and public colleges and universities.

49 CPB, 1982 CPB Public Broadcasting Directory 66-88; RCA

Broadcast Systems, Television & Cohle Factbook 1007-1059 (1982-83

ed.).

“4 State-owned public television is generally managed by authorities

or commissions comprised of public officials or political appointees. In

many states, the governor appoints commission members with the ad-

vice and consent of the state senate. E.g., Ala. Code § 16-7-2 (Cum.

Supp. 1982) (Alabama Educational Commission comprised of seven

members appointed by governor with advice and consent of senate);

see Alaska Stat. § 44.°1.025 (1980); Ark. Stat. Ann. § 80-3902 (1980);

Hawaii Rev. Stat. § 314-2 (1976); Wyo. Stat. § 9-3-1102 (1977).

In some states, the legislature joins the governor in actually naming

members to the commission. E.g., Or. Rev. Stat. § 354.115 (Repl.

1981) (Oregon Commission for Public Broadcasting comprised of five

members appointed by governor, three members appointed by Presi-

dent of the Senate, and three members appointed by Speaker of the

House); see Cal. Gov't Code § 8811 (1980); N.C. Gen. Stat.

§ 143B-426.9 (Cum. Supp. 1981); 71 Pa. Cons. Stat. Ann. § 1188.2

(Purdon Cum. Supp. 1982); S.C. Code Ann. § 59-7-10 (Law. Co-op.

1977).

Many other states combine appointed members with specified public

officials who are members ex officio. E.g., N.J. Stat. Ann. § 48:23-4

(West Cum. Supp. 1982) (New Jersey Public Broadcasting Authority

comprised of five cabinet officers and ten other members appointed by

governor with advice and consent of Senate); see Ky. Rev. Stat. Ann.

§ 168.040 (1980); La. Rev. Stat. Ann. § 17.2503 (West 1982); Mass.

Gen. Laws Ann. ch. 65 (1982); Neb. Rev. Stat. § 79-2102 (1981); N.D.

The ownership of full-service public radio stations is also

dominated by government-affiliated entities. Of the 262 sta-

tions qualified to receive CPB assistance, 58% are licensed

to such bodies.*

In sum, the entire noncommercial broadcasting system as

it now exists is, in a very special sense, public. Without

substantial sustained public support it would never have

developed, and without that support it would almost cer-

tainly wither.

B. Congress enacted and retained the prohibitions of

Section 399 in order to maintain the independence of

subsidized public broadcasting from government in-

fluence and to serve other important First Amend-

ment purposes

The legislative history of Section 399 makes clear that

Congress recognized that the use of public stations for

direct editorializing and political endorsements would be

incompatible with the public broadcasting system that

Congress sought to create—a system dedicated to public

Cent. Code ch. 15-65 (1981); Ohio Rev. Code Ann. § 3353.02 (Page

Supp. 1982); Okla. Stat. Ann. tit. 70, § 23-105 (West Cum. Supp.

1982); S.D. Codified Laws Ann. § 13-47-1 (1982); W. Va. Code § 10-5-2

(1976).

A number of states operate public television systems through the

state board of education or its equivalent. E.g., Fla. Stat. § 229.805

(1977 & Cum. Supp. 1983) (Florida educational television network op-

erated by State Department of Education pursuant to policies adopted

by State Board of Education); see Colo. Rev. Stat. § 22-50-113.7

(Cum. Supp. 1982); Del. Code Ann. tit. 14, $§ 129, 130 (1981); Ga.

Code Ann. § 20-2-12 (Cum. Supp. 1982); Iowa Code Ann. § 18.138

(West 1978); Kan. Stat. Ann. § 75-4906 (1977); Mich. Comp. Laws

§ 15.2090 (1979); N.Y. Educ. Law § 236 (McKinney Cum. Supp. 1982);

Tenn. Code Ann. § 49-3853 (Cum. Supp. 1982); Utah Code Ann.

$ 53-42-1 (1981). ;

“ CPB, 1982 CPB Public Broadcasting Directory 18-50.

purposes and sustained by public funds.“ Direct partisan

interventions would create a serious danger of government

propagandizing; would unfairly devote public moneys to the

propagation of private views; would place an official impri-

matur on some views while disfavoring others; and would

jeopardize the broad support that public broadcasting

needs for its independence and financial health. These con-

cerns were not only expressed in 1967, when Section 399

was enacted, but were reiterated in 1978, when a proposal

to narrow the statute was defeated, and again in 1981,

when Section 399 was amended so as to apply in part only

to stations receiving CPB grants.

1. One of the dominant themes in the legislative history

of the 1967 Act was that a viable system of public broad-

casting must be independent; public stations are not to be-

come government propaganda organs. Although Congress

naturally focused primarily on the dangers of federal con-

trol, concern was also expressed about control by other

governmental bodies.

#6 Appellees would have this Court believe (Br. in Opp. 20 n.13) that

Congress enacted Section 399 solely for *he illegitimate purpose of

“suppress(ing) potentially critical public comment” concerning its

members. Appellees cite (ibid.) three isolated statements taken out of

context from the congressional debates. These statements do not sup-

port the argument. Congressman Keith was making the valid point

that an administration film promoting its legislative program could

have been used against opposing congressmen (113 Cong. Rec. 26391

(1967)). The broadcasting of such federal government propaganda on

public stations is just the mischief that Section 399 was designed to

prevent. Congressman Joelson (113 Cong. Rec. 26391 (1967)) was dis-

cussing slander, which is not protected speech. His remarks were

spurred by a colleague’s question whether the government could be

sued by a private citizen for slander broadcast by a publicly-funded

station; he may have meant that “the right of editorializing should be

very, very carefully scrutinized” for that reason (ibid.).

In any event, these isolated remarks are of little import. “{I)nquiry

into legislative motive is often an unsatisfactory venture. * * * What

motivates one legislator to vote for a statute is not necessarily what

motivates scores of others to enact it.” Pacific Gas & Electric Co. v.

State Energy Resources Conservation & Development Commission,

No. 81-1945 (Apr. 20, 1983), slip op. 23; see also United States v.

O'Brien, 391 U.S. 367, 383 (1968).

In recommending passage of the 1967 Act, President

Johnson stressed that “[nJon-commercial television and ra-

dio in America, even though supported by federal funds,

must be absolutely free from any federal government inter-

ference over programming” (Special Message to the Con-

gress: “Education and Health in America,” 1 Pub. Papers

250 (Feb. 28, 1967)). At the beginning of the Senate sub-

committee hearings, the chairman, Senator Pastore, stated:

“I intend to see * * * every possible safeguard written into

the legislation necessary to assure complete freedom from

any Federal Government interference.” The Public Televi-

sion Act of 1967: Hearings on S.1160 Before the Subcomm.

on Communications of the Senate Comm. on Commerce,

90th Cong., 1st Sess. 9 (1967) (hereinafter “1967 Senate

Hearings”). A chorus of witnesses and Senators echoed this

view,*” and several witnesses expressed concern about the

adequacy of the bill’s safeguards against such interference.

The most important concern was that the administration

proposal did not provide for a dedicated tax to fund the

CPB; instead, it provided (at least initially) for funding

from general appropriations.** Concern was also expressed

about the fact that the members of the CPB board were to

be appointed by the President.**

The Senate committee, in reporting favorably on the bill,

stated that the committee was satisfied that the bill would

47 See, ¢.g., 1967 Senate Hearings, at 93 (Rosel H. Hyde, FCC

chairman); id. at 172-173 (Fred Friendly, former CBS news presi-

dent); id. at 197 (John F. White, president of NET); id. at 219 (Jack G.

McBride, general manager of Nebraska ETV Network).

48 See, e.g., the criticisms of Fred Friendly and Senator Javits,

1967 Senate Hearings, at 173, 451-452.

*” See, e.g., 1967 Senate Hearings, at 130 (Roger L. Stevens, chair-

man of the National Foundation on the Arts and the Humanities); id.

at 449 (Sen. Javits).

The committee sought to remedy this feature by providing for Presi-

dential appointment of nine of the 15 members, with the nine Presiden-

tial appointees to elect the remaining Aix, ‘Bee S. Rep. No. 222, 90th

Cong., Ist Sess. 13 (1967); 113 Cong. Rec./ 12990 (1967) (remarks of

Sen. Pastore). This provision was eliminated from the final version of

the Act, with the House substituting the requirement that not more

than eight of the members could belong to the same party (see 47

U.S.C. (Supp. V) 396(c)).

not lead 4o “Government control or interference in pro-

gramming” (S. Rep. No. 222, 90th Cong., Ist Sess. 11

(1967)).

2. The House was equally concerned that government

propagandizing not infect public broadcasting. It added

Section 399 to the bill as an additional safeguard.

It is notable that, at the House hearings at which the ban

on editorializing and political endorsements was suggested,

leaders in the field of educational broadcasting themselves

argued against these practices. Asked whether any of his

member stations broadcast editorials, the president of the

National Association of Educational Broadcasters replied

emphatically: “They have not, they do not, and they will

not.” Public Television Act of 1967: Hearings on H.R. 6736

and S. 1160 Before the House Comm. on Interstate and

Foreign Commerce, 90th Cong., 1st Sess. 513 (1967) (here-

inafter “1967 House Hearings”). See also id. at 416, 449,

596-597, 641, 731, 747, 804. The director of the New York

City Broadcasting System, noting that his station was di-

rectly answerable to the mayor, stated (id. at 731): “If we

were to take an editorial position, it would necessarily have

to be that of the administration, and therefore we take

none.” The representative of the Joint Council on Educa-

tional Telecommunications expressed concern about “the

control of the facilities so that [they do ] not become the im-

plement of those who might use [them] to advance one po-

litical philosophy or another in a biased manner.” Jd. at

623.5° Another witness stated that since public stations

were “using, in many cases, tax moneys,” they had “a re-

sponsibility to the general public for the expenditure of

these funds” (id. at 514). It was also noted that

editorializing might alienate public support (id. at 514,

5° An educational station manager explained that his station felt that

editorializing was inconsistent with its role as a representative of the

entire community (1967 House Hearings, at 516):

[The board feels that it is representing the whole public. It is

drawing funds from all segments of the public. It simply doesn’t

feel it has any right to impose an opinion of a group or an individ-

ual on this general public.

596), and jeopardize the stations’ tax exempt status (id. at

514, 596, 641).

Noting the testimony that educational stations did not

editorialize or wish to do so, the House report stated that

the prohibition against editorializing had been added “[oJut

of an abundance of caution” (H.R. Rep. No. 572, 90th

Cong., 1st Sess. 20 (1967)).5' The House left no doubt that

its primary motivation was the concern, “shared by all

members of the committee,” “that the proposed Corpora-

tion could become an instrument for political propaganda”

(113 Cong. Rec. 28383 (1967) (remarks of Rep. Staggers,

chairman of House Comm. on Interstate and Foreign Com-

merce)).5?

3. Congress reiterated the same concerns in 1978 when

the Senate defeated an Administration proposal®* to re-

strict the editorializing ban to those stations “licensed to

any governmental agency or instrumentality” (S. 2883, 95th

Cong., 2d Sess. § 404(a) (1978)). In a speech that elicited

no disagreement, Senator McClure recalled that Section

399 had been adopted to prevent noncommercial broad-

casting from becoming “a partisan political tool” and be-

cause the CPB’s bipartisan board of directors had not been

viewed as sufficient protection. He noted: “As we all know,

5! See 1967 House Hearings, at 513 (remarks of Rep. Van Deerlin);

id. at 643 (remarks of Rep. Ottinger).

52 Committee Chairman Staggers, explaining the distinction be-

tween editorializing by commercial and noncommercial stations, stated

(1967 House Hearings, at 721) that in the latter case “there is both the

use of a public resource and the use of Government funds for financing”

(113 Cong. Rec. 26383 (1967)). See also id. at 26394 (remarks of Rep.

Brotzman); id. at 26387, 26407 (remarks of Rep. Springer); id. at

26397 (remarks of Rep. Fascell);-1967 House Hearings, at 417 (re-

marks of Rep. Carter) (CPB, governed by presidential appointees,

provided insufficient protection).

53 President Carter stated that the “ban makes sense for stations li-

censed to a state or local government instrumentality. * * * * * An-

other step toward journalistic independence would be for state and 1é-

cal governments to better insulate these stations. The danger of undue

political control is as real here as at the Federal level.” Public Broad-

casting System: Message to the Congress, 2 Pub. Papers 1743 (Oct. 6,

1977) (emphasis added). The Administration proposal was passed by

the House (124 Cong. Rec. 19932, 19937 (1978); see also H.R. Rep. No.

95-1178, 95th Cong., 2d Sess. 31 (1978)) but not the Senate (124 Cong.

Rec. 15439 (1978)). The House conferees receded (H.R. Conf. Rep. No.

95-1774, 95th Cong., 2d Sess. 35 (1978)).

there have been instances when Public Broadcasting has

been criticized for exhibiting bias and a woeful lack of ob-

jectivity in its programming.” He stated that it was funda-

mentally unfair to use tax money to propagate controver-

sial private views and that editorializing would jeopardize

public broadcasting’s “popular acceptance” and financial

support. Finally, he observed that “public broadcasters

are, themselves, not unanimous or enthusiastic in their sup-

port for this proposed change.” 124 Cong. Rec. 30058

(1978).

Senator Hollings touched on many of these points. He

stressed that “we do not want a Government propaganda

agency funded by the taxpayers’ dollars,” and that “if we

allow editorializing or sponsorship of political candidates, it

could be the death knell of public broadcasting.” 124 Cong.

Rec. 30059 (1978).

4. Finally, in 1981, the prohibition against editorializing

was amended so as to apply only to those stations receiving

CPB grants. This amendment had little practical signifi-

cance. In 1981, the last year for which such figures are

available, all public television stations received CPB

grants, as did 214 (or 90%) of the 238 qualified radio s.a-

tions. CPB, Annual Report 1981, at 3-4. The principal re-

sult of the 1981 amendment was therefore to exempt those

noncommercial radio stations ineligible for CPB aid; these

are generally small stations that have low-power transmit-

ters, employ fewer than five full-time employees, or broad-

cast fewer than 18 hours per day.*4

54 See note 33, supra. It is to these relatively insignificant stations

that appellees refer when they state (Mot. to Dismiss or Affirm 20

n.13) that before 1981 Section 399 “applied to the hundreds of

noncommercial broadcasters that received absolut*ly no federal

funding.”

The legislative history suggests that Congress did not even consider

these small radio stations when Section 399 was enacted in 1967. Both

President Johnson and Congress focused primarily on television. In-

deed, aa originally introduced the legislation was entitled the Public

Television Act and called for the creation of the Corporation for Public

Television. See S. 1160, 90th Cong., Ist Sess. (1967). And Congress

believed—correctly—that all public television stations would receive

CPB grants. See 113 Cong. Rec. 26416 (1967). Contrary to appellees’

contention (Mot. to Dismiss or Affirm 6 n.2), there is nothing to sug-

gest that Congress believed that “not all local noncommercial broad-

casting stations would receive CPB funding.”

During the consideration of the 1981 amendment, Con-

gress reaffirmed its commitment to the purposes served by

Section 399. It was again noted that the prohibition allevi-

ated political pressure on publicly funded stations and pre-

vented their use for government propaganda.®* The partic-

ular problems posed by government-owned stations were

also stressed again. Referring to “the Denver television

station * * * owned by the local school board,” Congress-

man Aylward observed: “One can imagine the kind of con-

flicts the station would get into if they were allowed to edi-

torialize for candidates for public office.”®®

The impropriety of using tax dollars for partisan or ideo-

logical proselytizing was reiterated. Congressman

Moorehead stated:

There is nothing in the First Amendment that guar-

antees that the Federal Government will give one per-

son a bigger horn than someone else for the exercise of

his rights.

When we pay for public broadcasting we are giving

them a tremendous voice. If they are going to be al-

lowed to editorialize with Federal money then they

have a tremendous advantage over other points of

view that may be just as valid.[57]

** Congressman Tauke stated:

It occurs to me * * © if the Des Moines Register in my own

state were receiving public funds its editorial policy would be

substantially different or otherwise, it * * * probably would no

longer be relying on those Federal funds.

If it were relying on public funds, it could not speak as it does

about Members of Congress, members of the lowa Legislature.

May 11, 1981 Tr. 37 of Markup of Public Broadcasting Legislation by

the Subcomm. on Telecommunications, Consumer Protection, and Fi-

nance of the House Comm. on Energy and Commerce, 97th Cong., Ist

Sess. (1981) (hereinafter “May 11, 1981 House Markup”).

56 May 6, 1981 Tr. 75 of Markup of H.R. 3238 by the Subcomm. on

Telecommunications, Consumer Protection, and Finance of the House

Comm. on Energy and Commerce, 97th Cong., 1st Sess. (1981). See

also Hearings on H.R. 3238 Before the Subcomm. on Telecommunica-

tions, Consumer Protection, and Finance of the House Comm. on En-

ergy and Commerce, 97th Cong., Ist Sess. 10 (1981) (hereinafter “1981

House Hearings”); see alsu 1967 Senate Hearings, at 10.

57 May 11, 1981 House Markup, at 39; see also 1981 House Hear-

ings, at 65-66 (remarks of Rep. Swift).

Members also suggested that editorializing might jeop-

ardize public support of noncommercial stations®® and that

editorials by public stations might be viewed as official

pronouncements.

C. This Court has consistently recognized that the spe-

cial character of broadcasting justifies special regu-

lations designed to preserve the public interest in di-

versity and fairness in broadcasting

1. The district court commiited fundamental error by re-

quiring the government to show that Section 399 rested on

(what the court could be persuaded was) a “compelling in-

terest.” In doing so, the court failed to heed a consistent

line of Supreme Court precedent holding that First Amend-

ment analysis in this context must take into account the

special characteristics of broadcasting. See, e.g., CBS, Inc.

v. FCC, 453 U.S. 367, 394-397 (1981); FCC v. Pacifica

Foundation, 438 U.S. 726, 742 n.17 (1978); FCC v. Nation-

al Citizens Committee for Broadcasting, 436 U.S. 775,

799-800 (1978); First National Bank of Boston v. Bellotti,

435 U.S. 765, 791 n.30 (1978); CBS, Inc. v. Democratic Na-

tional Committee, supra, 412 U.S. at 101; Red Lion Broad-

casting Co. v. FCC, 395 U.S. 367, 388 (1969). As the Court

stated in CBS, Inc. v. Democratic National Committee,

supra, 412 U.S. at 101:

[T]he broadcast media pose unique and special prob-

lems not present in the traditional free speech case.

Unlike other media, broadcasting is subject to an in-

herent physical limitation. Broadcasting frequencies

are a scarce resource; they must be portioned out

among applicants. All who possess the financial re-

sources and the desire to communicate by television or

radio cannot be satisfactorily accommodated. The

Court spoke to this reality when, in Red Lion, we said

“it is idle to posit an unabridgeable First Amendment

right to broadcast comparable tu the right of every in-

dividual to speak, write, or publish.” Jd. at 388.

5® May 11, 1981 House Markup, at 36; 1981 House Hearings, at 65.

The very right to broadcast depends on a government li-

cense to be exercised in the public interest. Broadcast fre-

quencies are both scarce and uniquely powerful;5® there is

therefore a special public interest in assuring that the air-

waves are not monopolized by a narrow range of interests

and views. (Special regulations to guarantee diversity in

broadcasting—such as restrictions (going beyond general

antitrust requirements) on the right of newspaper owners

to obtain broadcast licenses—are justified on this ground.

See FCC vy. National Citizens Committee for Broad-

casting, supra.) The fact that the government entrusts li-

censees with “a valuable and limited public resource”

(CBS, Inc. v. Democratic National Committee, supra, 412

U.S. at 101) creates a special tension between the privi-

leges of licensees and the rights of the public, one that the

Court has resolved by holding that “[iJt is the right of the

viewers and listeners, not the right of the broadcasters,

5® It has been suggested that recent technological advances—such as

cable TV and direct satellite reception—have ended the days of scarci-

ty in access to broadcasting channels. See Note, The Public Broad-

casting Act: The Licensee Editorializing Ban and the First Amend-

ment, 13 U. Mich. J. L. Ref. 541, 553 (1980). The fact is, however—as

every resident of the District of Columbia knows—that, though much

talked about, the day when most viewers have access to these new

technological marvels still lies in the uncertain future. For most view-

ers, television still consists, first, of the two or three or four VHF sta-

tions accessible to the community, and, second, of a few additional

UHF outlets. The fact of scarcity is, of course, vividly recognized by

that most realistic of measurements, the market. A VHF station li-

cense in an urban market commands a staggering price; channel 5 in

Boston was sold in 1982 for $220 million. Broadcasting/Cablecasting

Yearbook 1983, at C-91. There is acute competition for even UHF li-

censes in major markets. A UHF license in the San Bernardino Valley

was recently revoked; 40 competing applications were received for that

channel. FCC Public Notice, TV Broadcast Applications Accepted for

Filing and Notification of Cut-Off Date for San Bernardino,

California (May 18, 1983).

Further, it is clearly for Congress in the first instance to determine

whether and when technological changes warrant a major

restructuring of our system of broadcast regulation. Congress’s deter-

mination that—as of now—broadcast licenses still constitute a special

public resource to be used for the public interest is surely not

unwarranted.

which is paramount.” Red Lion Broadcasting Co. v. FCC,

supra, 395 U.S. at 390. “‘[W)hat is essential is not that

everyone shall speak, but that everything worth saying

shall be said’” (CBS, Inc. v. Democratic National Com-

mittee, supra, 412 U.S. at 122, quoting A. Meiklejohn, Po-

litical Freedom 26 (1948)).

Thus, in First Amendment cases involving regulation of

broadcast licensees, the Court has not demanded proof of a

compelling government interest of the kind conventionally

demanded in other First Amendment contexts.® It has rec-

ognized that “[iJt is the purpose of the First Amendment to

preserve an uninhibited marketplace of ideas in which truth

will ultimately prevail * * *” (Red Lion Broadcasting Co.

v. FCC, supra, 395 U.S. at 390); it has tested restrictions

placed upon broadcasters in the context of the special pub-

lic interest in a diverse broadcasting system free from dom-

ination by a narrow set of interests. See Red Lion Broad-

casting Co. v. FCC, supra, 395 U.S. at 386-392; CBS, Inc.

v. Democratic National Committee, supra, 412 U.S. at

121-132; FCC v. Pacifica Foundation, supra, 438 U.S. at

744-751; CBS, Inc. v. FCC, supra, 453 U.S. at 394-397. In

conducting this “‘delicate balancing of competing inter-

ests’” (id. at 394), the Court has accorded “great weight to

the decisions of Congress * * *.” CBS, Inc. v. Democratic

National Committee, supra, 412 U.S. at 102; see also

Fullilove v. Klutznick, 448 U.S. 448, 472 (1980).

*° Compare, e.g., Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, No. 81-1839 (Mar. 29, 1983), slip op. 7

(state tax that singles out the newspaper press for special treatment

cannot withstand First Amendment scrutiny in the absence of “an

overriding governmental interest”); Carey v. Brown, 447 U.S. 455,

461-462 (1980) (statute excluding all non-labor picketing in residential

neighborhoods cannot stand unless necessary to serve a compelling

state interest and statute is narrowly tailored to achieve that inter-

est); First National Bank of Boston v. Bellotti, supra, 435 U.S. at 786

(state statute unconstitutional unless state can meet its burden to

show that the challenged restriction is narrowly drawn to serve a

compelling state interest). See generally Perry Education Ass'n v.

Perry Local Educators’ Ass’n, No. 81-896 (Feb. 23, 1983), slip op. 7-8

(discussion of traditional “public forum” cases).

2. More specifically, this Court has sustained important

restrictions upon the right of all broadcasters to editorial-

ize—and has done so without demanding proof of a “com-

pelling” government interest.

This is particularly significant because, in the print me-

dia, the right to editorialize is of course virtually un-

restricted. A newspaper has no legal duty to act in the pub-

lic interest; it does not have to serve the public. A

newspaper may print editorials or decline to do so. If it edi-

torializes, it may select the topics of its choice. It may re-

main mute on important issues, while dwelling on subjects

of little interest to most persons. It may stridently advance

a single point of view; it may not be compelled to cede space

for reply to those it attacks. Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241 (1974). Subject to narrow restric-

tions, it may edvocate the most extreme measures. And in

making factual assertions, it is bounded only by the laws of

libel and slander. Cf. New York Times Co. v. Sullivan, 376

U.S. 254 (1964).

On the other hand, a broadcaster’s rights are hedged on

all sides.*? Broadcast licenses may be denied or revoked if

the Federal Communications Commission determines that

“the public interest, convenience, and necessity” require.

47 U.S.C. 309(a); FCC v. WOKO, Inc., 329 U.S. 228, 229

(1946). And in making this determination, the Commission

takes into consideration a broadcaster’s coverage of public

affairs. ®

*1 Indeed, at one time, all broadcasters were forbidden to editorial-

ize. See In re Mayflower Broadcasting Corp., 8 F.C.C. 333, 340 (1940)

(“[A]s one licensed to operate in a public domain the licensee has as-

sumed the obligation of presenting all sides of important public ques-

tions * * *. The public interest—not the private—is paramount.”).

The Commission lifted this ban, not because it believed it to be uncon-

stitutional, but because it concluded that “overt licensee

editorialization, within reasonable limits and subject to the general

requirements of fairness * * * is not contrary to the public interest.”

In re Editorializing by Broadcast Licensees, 138 F.C.C. 1246, 1253

(1949) (emphasis added).

*2 CBS, Inc. v. Democratic National Committee, supra, 412 U.S. at

110-112.

Other significant restrictions upon the editorial freedom

of broadcasters were upheld in Red Lion Broadcasting Co.

v. FCC, supra. In that case, the Court sustained the con-

stitutionality of FCC regulations granting a right to reply

(a) “[w]hen during the presentation of views on a contro-

versial issue of public importance, an attack is made upon

the honesty, character, integrity or like personal qualities

of an identified person or group” or (b) “[wJhere a licensee,

in an editorial * * * opposes a legally qualified candidate”

(395 U.S. at 373-375). By implication, the Court also upheld

the broader “fairness doctrine” on which these rules are

based. As the Court has explained (CBS, Inc. v. Demo-

cratic National Committee, supra, 412 U.S. at 111), that

doctrine imposes two affirmative responsibilities upon all

broadcasters: “coverage of issues of public importance must

be adequate and must fairly reflect differing viewpoints.”

The Court further stated in Red Lion (395 U.S. at 391) that

the FCC’s personal attack and electoral opposition rules

were “indistinguishable” “{iJn terms of constitutional princi-

ple” from the equal-time rule (47 U.S.C. 315) under which a

candidate for public office is entitled to broadcast time

equal to that furnished to his adversary. The Court con-

cluded that all these broadcasting regulations are consist-

ent with the First Amendment’s purpose of “preserv[ing]

an uninhibited marketplace of ideas in which truth will ulti-

mately prevail, rather than * * * countenanc[ing} monopo-

lization of that market, whether it be by the Government

itself or a private licensee” (395 U.S. at 390).

In sum, all broadcasters have been validly subjected to

public responsibilities that prevent use of their stations for

unrestrainedly private or partisan ends. In the case of fed-

erally funded public broadcasters, Congress has imposed

even more careful limitations—among them Section 399’s

ban on editorializing and on supporting or opposing political

candidates. In our view, the special characteristics of non-

commercial broadcasting justify the specific prohibitions

contained in Section 399.

). The bar on editorializing and electioneering is an es-

sential element of the congressional plan to create

and finance a public broadcasting system devoted to

public, not private, purposes

1. The measures the government has adopted to create

and foster public broadcasting during the past 50

years—the reservation of a limited number of channels for

noncommercial and educational broadcasting; the allocation

of these channels throughout the nation; the licensing of nu-

merous noncommercial stations to state and local entities,

educational institutions, and broadly based community and

nonprofit organizations; the funding of construction of facil-

ities; the production and distribution of educational pro-

gramming; and the massive financing of noncommercial sta-

tion operations—represent a national commitment to an

important public purpose: the creation and fostering of a

special broadcasting system that would give the nation a

kind of programming excellence and diversity that the com-

mercial sector could not or would not produce. The counter-

vailing restrictions Congress has imposed on these special

stations—including those contained in Section 399—are de-

signed to serve the same generous public purpose. Non-

commercial stations, even more than commercial ones, are

to be a community resource. They are to be funded by

all—through federal and state and local taxes and through

tax-deductible contributions. And they are to serve all.

They constitute a forum where many voices are to be heard

but none is to be preferred and none may be “official.” It

has always been central to this vision that these public sta-

tions should not be dedicated to the propagation of particu-

lar partisan and ideological views. Any breach of this prin-

ciple, as Senator Hollings noted, “could be the death knell

of public broadcasting” (124 Cong. Rec. 30059 (1978)).

If editorializing and other partisan political interventions

were permitted, public stations would become an inviting

target for capture by private interest groups that hope to

acquire a powerful voice—at public expense. The fact that

the number of public stations is limited—especially in the

case of television—makes this concern especially acute. In

most cities the one public TV station is an absolutely

unique community asset; it would certainly be highly dis-

turbing if its owners and managers, financed by tax dollars,

could use it to propagate partisan ideological ends. This

concern would be compounded if numerous educational sta-

tions were to be captured by groups representing a narrow

set of ideological interests. This Court has recognized that

the maintenance of diversity is especially important in the

broadcast media;®* allowing noncommercial stations to

serve partisan ends would put strains on this important in-

terest and might eventually involve the FCC in ideological

issues when licensing noncommercial stations.

Even more important is the point that allowing educa-

tional station owners and managers to use the station to

propagate their own partisan ends is wholly irrelevant to,

and might seriously interfere with, the public mission for

which these stations are licensed and federally funded.

That mission is not to serve as a privileged outlet for the

political and ideological opinions of station owners and man-

agers, but to provide the public with a special sort of di-

verse and excellent programming unavailable on commer-

cial radio and TV. That mission includes, of course, the

airing of the multitude of lively and controversial public af-

fairs programs—programs on which every possible view

may be freely expressed—that have so notably enlivened

public radio and television since the beginning, notwith-

standing the ban on editorializing. Carrying out that educa-

tional mission is a full time job, difficult and often contro-

versial in its own right. Embroilment in partisan political

controversies could only distract from that central mission.

It could also compromise the broad public support that edu-

cational broadcasting desperately needs in order to main-

tain its independence, its privileged status, and its financial

health. Support for educational broadcasting—just like

support for many schools and universities—would rapidly

erode if these institutions were perceived as serving nar-

* E.g., FCC v. National Citizens Committee for Broadcasting, 436

U.S. 775, 794-802 (1978) (i: interest of diversification, FCC may deny

broadcast license to owners of newspaper in same community); Associ-

ated Press v. United States, 326 U.S. 1, 20 (1945).

row partisan ends. To compromise the public role of public

broadcasting by allowing it to be exploited for partisan

ends would endanger this noble enterprise.

2. The ban on editorializing is also justified because it

protects against the use of public stations for government

propagandizing. That this is an important government in-

terest can scarcely be denied; “it is a central tenet of the

First Amendment that the government must remain neu-

tral in the marketplace of ideas.” FCC v. Pacifica Founda-

tion, supra, 438 U.S. at 745-746 (opinion of Stevens, J.;

footnote omitted).

Congress specifically found that if public stations were

permitted to editorialize, they might feel pressure to broad-

cast editorials acceptable to those who hold the purse

strings. Similarly, if publicly funded stations became asso-

ciated with particular editorial positions, it would be diffi-

cult to prevent political considerations from influencing de-

cisions regarding the appropriation and distribution of such

funds.

The district court’s opinion, disagreeing with the consid-

ered judgment of three Congresses that Section 399 is nec-

essary to insulate public broadcasting from governmental

pressures, furnishes no valid basis for striking it down. The

court first stressed (J.S. App. 13a) the “modest level” of

CPB funding. It noted (id. at 12a-13a) that the average sta-

tion affected by Section 399 received not more than approx-

imately 25% of its 1977 operating budget from CPB; that no

such station depended on CPB for more than 33% of its

budget; and that only 14% of appellee Pacifica’s revenue

was allegedly derived from CPB grants.™

* Cf. Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974)

(plurality) (city transit system may refuse to permit political adver-

tisement to prevent appearance of “favoritism”); United Public Work-

ers v. Mitchell, 330 U.S. 75, 97 (1947) (“principle of required political

neutrality for classified public servants”). See also Community-

Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d 1102,

1148-1149 (D.C. Cir. 1978) (en banc) (Leventhal, J., dissenting).

* There is no formal proof in the record concerning the amount of

funding received by the Pacifica stations from government sources. In

their Memorandum of Points and Authorities in Support of Motion for

Summary Judgment at 18, appellees asserted that of Pacifica’s total

The flaws in this reasoning are manifest. When enacting

Section 399, Congress made the predictive judgment that

CPB funding, whatever its exact level, would be sufficient

to create an unhealthy possibility of government control;

that judgment is entitled to respect. The constitutionality

of Section 399 cannot be tied to the accidents of current lev-

els and trends of federal funding; otherwise the statute’s

validity would vary from year to year as funding waxes and

wanes,

Further, it is not for the court to make a de novo judg-

ment whether 33%, or 25%, or 14% is substantial. For all

the district court knows, a 14% decrease in net income may

spell bankruptcy for some public broadcasters. For many

more, the result could be a significant curtailment of opera-

tions, with losses of jobs, salary cuts, and other conse-

quences. The federal government is the largest single

source of funding for public broadcasters. See pp. 18-20,

supra, Congress determines what the exact level of fund-

ing should be; its judgment that the potential for influence

is substantial should not have been set aside.

The district court also completely ignored the danger of

political pressure by state and local governments and their

instrumentalities. These sources account for more than 35%

of public broadcasting’s income (ibid.); they own more than

two-thirds of all public stations. There thus exists an

obvious potential for abuse. And, in fact, instances of politi-

cal pressure upon the programming of governmental licen-

sees are common enough that in 1981 the National Associa-

tion of Educational Broadcasters published a collection of

case studies (R. Schenkkan, C. Thurston & A. Sheldon,

Case Studies in Institutional Licensee Management

1978 revenues of “nearly $2 million,” “14% came from CPB Community

Service Grants” and “8% * * * came from direct federal grants.” Ap-

pellees did not assert how much they received from CPB in other

forms or how much they received in indirect federal aid or from state

and local government. In response to a request for more detailed fund-

ing figures, appellees’ counsel later stated that “Pacifica is reluctant to

release any more financial information than is absolutely necessary”

but asserted that in fiscal 1981 “between 20-25% of Pacifica’s gross

operating budget (came) from CPB grants” (see Appendix to Defend-

ant’s Supplemental Memorandum on Amendment of Section 399 (Sept.

14, 1981), App., 2a, infra).

(1980) ).®* Similarly, a survey of public television stations to

determine whether they would editorialize if allowed to do

so reported that “managers of state-licensed stations, some

of which receive sizeable appropriations, responded that

[the potential impact of editorials on their sources of fund-

ing] would be a ‘very important’ factor in their decision.”

Wollert & Haney, Editorializing and Fundraising: Does It

Mix? 7 Pub. Telecommunications Rev., No. 5, at 34, 36

(Sept./Oct. 1979).®7

* See also Community-Service Broadcasting of Mid-America, Inc.

v. FCC, 593 F.2d 1102, 1114-1115 (D.C, Cir, 1978) (executive director

of Maryland Center for Public Broadcasting stated “it would be unlike-

ly that his viewers would see a program highly critical of the Maryland

General Assembly, since the Assembly is the source of two thirds of

the system's funding”); Lucoff, The University and Public Radio:

Who's in Charge?, 7 Pub. Telecommunications Rev., No. 5, at 22-26

(Sept./Oct. 1979) (account of administration control of programming at

state university radio station; concludes (at 26) that “(sJolving the

problem of insulating the programming process from those who supply

the funding has defied the best minds in public broadcasting”);

Thurston, /nsulation and Institutional Licensees, 8 Pub. Telecommu-

nications Rev., No. 2, at 10-14 (Mar./Apr. 1980).

*7 In recognition of these dangers, some—but by no means

all—states have enacted laws to prevent the use of publicly owned sta-

tions for partisan purposes. See Fla, Stat. § 229.905(4) (1977 & Cum.

Supp. 1983) (crime to use educational television to support political

candidate); Ky. Rev. Stat. Ann. § 168.100(2) (Bobbs-Merrill 1980)

(prohibits political propaganda or “image or message in the interests of

any political party or candidate for public office”); La. Rev. Stat. Ann.

§ 17.2506 (West 1982) (prohibits presentation of “biased or one-sided

aspects of partisan politics” or advocating or opposing any political

candidacy or legislation); N.J. Stat. Ann. § 48:23-9 (West Cum. Supp.

1982) (prohibiting support of or opposition to political party or candi-

date or attempting to influence enactment of legislation); N.Y. Educ.

Law § 236 (McKinney Cum. Supp. 1982) (state charter may be revoked

if station used for partisan or political purposes or to influence legisla-

tion); Okla. Stat. Ann. tit. 70, § 23-102 (West Cum. Supp. 1982) (crime

for elected official to influence or attempt to influence public television

program content for personal gain or political benefit); R.I. Gen. Laws

§ 16-28-3 (1981) (prohibits sponsorship of any individual's election);

8.D. Codified Laws Ann. § 13-47-17 (1982) (state board must assure

that facilities not used to broadcast propaganda or influence

legislation).

The district court also suggested (J.S. App. 13a) that the

fear of government influence was “speculative” because of

the “protective insulation” provided by the CPB.** As we

have noted, Congress wrestled with the problem of struc-

turing the CPB board so as to provide such insulation; it ul-

timately concluded that additional measures were required.

In our view, the courts should not second-guess Congress’s

judgment about the adequacy of the insulation provided by

the CPB or the appropriate combination of means for

achieving this obviously legitimate objective.

Finally, the district court placed reliance (J.S. App. 14a)

on the fairness doctrine. It is important to remember, how-

ever, that the fairness doctrine is itself a significant limita-

tion on the right to editorialize, and has essentially the

same constitutional grounding as Section 399. Both provi-

sions reflect the judgment that unrestrained partisanship

by broadcast licensees may threaten First Amendment

These laws show that some legislatures perceived the danger that

state-owned stations might be used for partisan ends. Ironically the

broad language of some of them, which contrasts with Section 399’s

narrow prohibition against editorializing, creates the danger of

authorizing the control of program content by politically appointed

state broadcasting authorities.

** While appellees now contend that the present system “ensure(s]

that CPB-funded stations will not be vulnerable” to political influence

(Mot. to Dismiss or Affirm 19; emphasis added), during debate on the

1978 amendments to the Public Broadcasting Act, appellee Waxman

stated that the Corporation is “composed of political appointees” (124

Cong. Reg. 37037 (1978)) and added (ibid.): “Further steps must be

taken * * * to provide a greater degree of insulation for both [public

broadcasting’s) funding sources and programming decisions.”

** The district court relied (J.S. App. 18a) on the fact that CPB

grants are distributed according to “objective, nondiscretionary crite-

ria.” This statement is a considerable over-simplification. See, e.g., 47

U.S.C. (Supp. V) 396(g\(2)(B) (discretionary grants to stations for pro-

gram production). The district court cited a passage in the second

Carnegie Commission report noting that the system by which federal

funds were allocated among stations was “ ‘well positioned to avoid re-

view of program content as a condition for increased funding’ ” (J.S.

App. 14a n.8, quoting Carnegie I], at 124). The court failed, however,

to note the Commission's conclusion that in actual practice “the pur-

pose of (the plan]—the insulation from annual political review of the

system—has been undermined.” Carnegie I/, at 125-126.

values, see Red Lion Broadcasting Co. v. FCC, supra: to

invalidate one because the government happens currently

also to be utilizing the other is inconsistent and substitutes

ad hoc policy judgments for constitutional doctrine. More-

over, the fairness doctrine has a limited scope, and Con-

gress had a reasonable basis for concluding that additional

safeguards are needed against the use of public stations for

government propagandizing.”°

3. The prohibition on editorializing serves an additional

important interest, one not discussed by the district court:

it prevents the use of taxpayer money to promote private

views. The First Amendment protects “both the right to

speak freely and the right to refrain from speaking at all.”

Wooley v. Maynard, 430 U.S. 705, 714 (1977). This Court

held in Abood v. Detroit Board of Education, 431 U.S. 209,

234 (1977), that a city board of education could not require

teachers, as a condition of employment, to pay union dues

insofar as these dues were used by the union to express po-

litical views, to support political candidates, or to advance

other ideological causes “not germane to its duties as

collective-bargaining representative” (id. at 235; footnote

omitted). The Court explained (ibid.) that the First

Amendment prohibited the board “from requiring [a

teacher] to contribute to the support of an ideological cause

7° The personal attack and political editorial rules (47 C.F.R.

73.1920 and 73.1930) apply only in narrow circumstances. Neither

would apply, for example, if a broadcaster simply editorialized on a

controversial issue of public importance without attacking any person

or group or opposing a candidate. The broader fairness doctrine would

in that situation require only that the broadcaster provide a “‘reason-

able opportunity for the presentation of contrasting viewpoints.’” 39

Fed. Reg. 26372, 26375 (1974). The broadcaster would retain consider-

able discretion in selecting the opposing spokesman to be heard, the

amount of time to be allotted, the time of day at which the presenta-

tion would be broadcast, and the format to be employed (id. at

26377-26378). The fairness doctrine thus does not purport to put a li-

censee who editorializes on the same footing as a spokesman for a con-

trasting view. Furthermore, an editorial endorsed by a “public” sta-

tion might carry far more weight than any response by a private

individual. Finally, the FCC has recently proposed modifying or re-

pealing its personal attack and political editorial rules. Notice of Pro-

posed Rule Making In re Repeal or Modification of the Personal At-

tack and Political Editorial Rules, FCC Gen. Docket No. 83-484

(adopted May 12, 1983).

he may oppose as a condition of holding a job as a public

school teacher.”

Section 399 supports the same principle. It would be fun-

damentally wrong to exact tax money from all citizens and

then give it to television and radio stations so that the sta-

tions can espeuse causes with which a great many taxpay-

ers might disagree. “A system which secures the right to

proselytize religious, political, and ideological causes must

also guarantee the concomitant right to decline to foster

such concepts.” Wooley v. Maynard, supra, 430 U.S. at

714. This problem is here magnified by the tremendous

power of the broadcast media and by the ironic fact that

government-funded “public” television stations may be less

answerable to the public than commercial stations depend-

ent upon ratings for advertising revenue.”!

The ban on editorializing also avoids another danger: the

appearance that, by providing funds to public stations, the

government has endorsed or “prescribe[d] as orthodox” a

particular view on the issues. West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 645 (1943). See also

Wooley v. Maynard, supra (state may not compel driver to

display on license plate a state motto repugnant to his mor-

al, religious, and political beliefs).7?

™ When commercial broadcasters choose to advance their private

political, social, and economic views, they are bounded by “the accept-

ance of a sufficient number of [viewers or listeners])—and hence ad-

vertisers—to assure financial success * * *” (CBS, Inc. v. Democrat-

ic National Committee, supra, 412 U.S. at 117 (opinion of Burger,

C.J.)). In the case of noncommercial stations, this factor is less impor-

tant, since private contributions supply only part of their budgets.

72 To be sure, in a democracy the very conduct of government neces-

sarily entails some political advocacy: government officials must com-

municate with the people, explain their programs, and provide leader-

ship and direction to the nation. Members of Congress and the

President and his political appointees necessarily participate in forms

of political advocacy. And because these communications are “germane

to [the officials’} duties” (Abood v. Detroit Board of Education, supra,

431 U.S. at 235), they may properly be supported with public funds.

But all of that stands on a wholly different footing from the question

presented here—whether Congress has power to insist that taxpayer

funds not be used to subsidize the propagation of private political

views that may be unwelcome or even repugnant to many taxpayers.

E. The free marketplace of ideas is not substantially in-

hibited by Congress’s decision that owners and man-

agers of public stations should not have a privileged

voice

The restriction on editorializing in Section 399 interferes

only minimally with the free marketplace of ideas. As not-

ed, “editorializing” means only the expression of a licen-

see’s views by management or a management spokesman

(In re Complaint of Accuracy in Media, Inc., supra, 45

F.C.C.2d at 302). Station employees, journalists, academ-

ics, polemicists and politicians remain free to express their

views. Public igures may be invited to give their opinions

or may be interviewed by an interviewer of management’s

choice. Any news subject may be covered in any manner.

Any documentary or show may be aired. In addition, the

prohibition against editorializing is strictly neutral; it

makes no effort to restrict only those expressions of opinion

with which those in positions of authority might disagree.

See Regan v. Taxation With Representation, supra, slip

op. 7, 9; concurring opinion at 1 (Blackmun, J.). Finally, the

prohibition against editorializing applies only to the use of

subsidized broadcast facilities; it does not prevent Pacifica

from expressing its views on any other station or in any

other medium (including the publications that many

noncommercial stations mail to their contributors).

Anyone who has watched public television or listened to

public radio knows that they devote substantial air time to

public affairs programming; programs such as the

McNeil/Lehrer Report, Washington Week in Review, Wall

Street Week, Firing Line, and All Things Considered, pro-

vide a broad and lively range of views on diverse and con-

troversial topics.

Moreover, any station that finds the ban on editorializing

unduly restrictive is free to decline CPB grants. If such

grants really are only an insignificant part of a station’s

budget—as the district court opined (see J.S. App.

12a-14a)—this should not represent a major sacrifice. If, on

the other hand, federal subsidies are critical for a station’s

operations, management should not complain that it cannot

use public funds to express its own views. Station owners

and managers subject to Section 399 are, after all, in no

worse position than other persons denied special access to

the airwaves to express their views. CBS, Inc. v. Demo-

cratic National Committee, supra. See Red Lion Broad-

casting Co. v. FCC, supra, 395 U.S. at 389 (“as far as the

First Amendment is concerned those who are licensed

stand no better than those to whom licenses are refused”).

In arguing that the First Amendment guarantees its right

to editorialize on a public station, Pacifica is claiming the

right to magnify the force and reach of its opinions through

the use of a valuable public resource sustained by public

funds and entrusted to it for the purpose of providing a

public service. The First Amendment should not be inter-

preted to give owners and managers of public stations such

a privileged voice.

Il. CONGRESS HAS POWER TO DETERMINE THAT

IT WILL NOT SUBSIDIZE PRIVATE EDITORIAL-

IZING AND ELECTIONEERING

Section 399 is constitutio al for another—simple—rea-

son. That provision does not in any way prohibit

noncommercial stations from exercising their right to free-

dom of expression. Congress has merely provided, in the

proper exercise of its Spending Power, that it will not sub-

sidize public broadcasting station editorials. “A federal

agency providing financial assistance to a public television

station may, of course, attach conditions to its subsidy that

will have the effect of subjecting such licensee to more

stringent requirements than must be met by a commercial

licensee.” Community Television of Southern California v.

Gottfried, No. 81-298 (Feb. 22, 1983), slip op. 13.7%

73 See also Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (opinion

of Burger, C.J.).

The fact that two-thirds of all public broadcasting stations are li-

censed to state authorities, subdivisions of state government, and

other government-affiliated entities, gives particular relevance to the

line of cases recognizing that “Congress’ power to legislate pursuant to

the spending power” includes the authority to “fix the terms on which

it shall disburse federal money to the States.” Pennhurst State School

v. Halderman, 451 U.S. 1, 17 (1981). In Oklahoma v. CSC, 830 U.S.

127 (1947), the Court upheld a provision of the Hatch Act prohibiting

partisan political activity by state exaployees whose principal employ-

To demonstrate the constitutionality of the contested

provision of Section 399, it is necessary to look no further

than this Court’s recent, unanimous decision in Regan vy.

Taxation With Representation, No. 81-2338 (May 23, 1983)

(“TWR”), holding that Section 501(c)(3) of the Internal

Revenue Code (26 U.S.C.) does not abridge the First

Amendment. Section 501(c)(3) withholds tax exempt status

from a nonprofit organization if a “substantial part” of its

activities are devoted to “carrying on propaganda, or other-

wise attempting, to influence legislation.” Equating the tax

exemption granted by that provision to “a cash grant to the

organization of the amount of tax it would have to pay on

its income” (TWR, supra, slip op. 3-4), the Court explained

(id. at 4) that Section 501(c)(3) simply expressed Con-

gress’s choice not “to subsidize lobbying as extensively as

* * * other activities that non profit organizations under-

take to promote the public welfare.”

The Court rejected the argument that “the prohibition

against substantial lobbying by § 501(c)(3) organizations

imposes an ‘unconstitutional condition’ on the receipt of tax-

deductible contributions” (TWR, supra, slip op. 5). The

Court acknowledged that “the government may not deny a

benefit to a person because he exercises a constitutional

right,” but explained (iid.):

The Code does not deny TWR the right to receive de-

ductible contributions to support its nonlobbying activ-

ity, nor does it deny TWR any independent benefit on

account of its intention to lobby. Congress has merely

refused to pay for the lobbying out of public monies.

This Court has never held that Congress must grant a

benefit such as TWR claims here to a person who

wishes to exercise a constitutional right.

- *

* x *

Congress has not infringed any First Amendment

rights or regulated any First Amendment activity.

Congress has simply chosen not to pay for TWR’s

lobbying.

ment was in connection with a federally-financed activity. Insofar as

Section 399 applies to stations licensed to government-affiliated enti-

ties, CSC is directly controlling.

The reasoning of TWR is applicable to the present case.74

In neither case did Congress prohibit the exercise of First

Amendment rights. In both cases, Congress simply decided

not to subsidize private partisanship.”®

Appellees have argued (Mot. to Dismiss or Affirm 16;

emphasis in original) that Section 399 is unconstitutional

because it “does not * * * simply restrict the manner in

which the noncommercial broadcaster may spend the grant

it receives” but “imposes an outright restraint on what the

broadcaster may do or say with any of its funds.” This ar-

gument was implicitly rejected in TWR and has no greater

validity here. The tax exemption provided by Section

501(c)(3) and CPB’s unrestricted grants both benefit all as-

pects of the subsidized organizations. CPB community

service grants are used “to produce or purchase programs,

hire production staff, buy equipment or make other capital

improvements, provide training, promote programs or fi-

nance fund-raising activities” (CPB, Annual Report 1981,

at 7).7° Without these grants, there might be no staff mem-

74 The concurring opinion in TWR also supports the constitutionality

of Section 399. The concurrence was based upon the fact that a non-

profit organization “may use its * * * § 501(c)(3) organization for its

nonlobbying activities and may create a § 501(c)(4) affiliate to pursue

its charitable goals through lobbying” (concurring slip op. 2).

Pacifica—which owns five stations—is free to editorialize on any

unsubsidized station while continuing to operate a subsidized one.

Moreover, unlike Section 501(c3), which applies to lobbying or prop-

agandizing by any means, Section 399 applies only to broadcasting. It

does not prevent Pacifica from editorializing in any other medium.

7 To be sure, Section 501(c3) withholds a tax subsidy only if a non-

profit organization engages in “substantial” propaganda activities,

whereas 47 U.S.C. (Supp. V) 399, as amended by the Public Broad-

casting Amendments Act of 1981, Pub. L. No. 97-35, Title XII, Section

1229, 95 Stat. 730, withholds federal funding if a noncommercial broad-

casting station engages in any editorializing. However, the principle of

TWR would just as clearly apply if the statute withheld tax exempt

status from any organization that engages in any lobbying. In enacting

such a law, Congress would have “simply chosen not to pay for [the or-

ganization’s) lobbying” (slip op. 5).

™ Appellees have argued (Mot. to Dismiss or Affirm 16 & n.9) that

CPB grants do not count as federal subsidies. However, those funds

are appropriated from the Treasury (47 U.S.C. (Supp. V) 396(k), as

amended by Pub. L. No. 97-53, Title XII, Section 1227, 95 Stat. 727),

and the mere fact that they pass through the CPB does not prevent

bers to write, edit, or deliver an editorial; no station sup-

port staff; no popular programs to attract an audience for

the editorial or stimulate private contributions; and no stu-

dio, antenna, or other broadcast facilities. As in the case of

the tax exemption, the only way to prevent federal funds

from subsidizing the activities that Congress wished not to

subsidize (lobbying in the case of Section 501(c)(3); editori-

alizing in the case of Section 399) is to ban a subsidized or-

ganization from engaging in the activities.

Appellees have also argued (Mot. to Dismiss or Affirm

17) that Section 399 places an unconstitutional condition

upon the receipt of CPB funds. But like TWR, the present

case is readily distinguishable from those in which the gov-

ernment denied a person a benefit because he exercised a

constitutional right. Two such cases—Speiser v. Randall,

357 U.S. 513 (1958), and Perry v. Sindermann, 408 U.S.

593 (1972)—were mentioned in TWR (slip op. 5), and they

serve to illustrate the distinction. In Speiser, taxpayers

were denied a property tax exemption for honorably dis-

charged veterans because they refused to sign a declaration

stating that they did not advocate the forcible overthrow of

the government. In Perry, a state college professor was al-

legedly denied reemployment because he criticized the

Board of Regents. Only in the most strained and artificial

sense could it be said that the law in Speiser prevented

government subsidy of taxpayer speech (i.e., the refusal to

sign the required declaration). Similarly, in Perry, reten-

tion of the professor could not be deemed a state subsidy of

the teacher’s criticisms of the Board.77

Congress, in the exercise of its Spending Power, from specifying how

they shall be spent. Cf. CBS, Inc. v. Democratic National Committee,

supra, 412 U.S. at 149-150 (Douglas, J., concurring). To hold otherwise

would bring down the entire structure of the Public Broadcasting Act,

which specifies in some detail how those grants are to be used. See 47

U.S.C. (Supp. V) 396(k), as amended by Pub. L. No. 97-53, Title XII,

Section 1227, 95 Stat. 727; H.R. Conf. Rep. No. 97-208, 97th Cong.,

lst Sess. 892-894 (1981). Whether CPB grants constitute “federal fi-

nancial assistance” within the meaning of certain federal statutes (e.g.,

20 U.S.C. 1681(a); 29 U.S.C. (Supp. V) 794; 42 U.S.C. 2000d) is not

relevant here (compare Mot. to Dismiss or Affirm 16 n.9).

7 In this regard, appellees’ hypothetical (Mot. to Dismiss or Affirm

17-18) is entirely different from that in our jurisdictional statement (at

10 n.10). The government could not prohibit outside research by a

Speiser and like cases are distinguishable in another crit-

ical respect, as this Court noted in FCC v. National Citi-

zens Committee for Broadcasting, supra, 436 U.S. at

800-801. In that case regulations, prospectively barring

newspapers from obtaining broadcast licenses in the same

community, were attacked on the ground that they “uncon-

stitutionally condition{ed] receipt of a broadcast license

upon forfeiture of the right to publish a newspaper” (id. at

800). Rejecting this argument for a unanimous Court, Jus-

tice Marshall pointed out (id. at 801; emphasis added) that

Speiser and related cases were inapposite because there

denial of a benefit “was based solely on the content of con-

stitutionaliy protected speech,” whereas the challenged

regulations were “not content related.” Here, of course,

Section 399 prohibits all editorializing, without regard to

content.

Finally, in Speiser and similar cases, the restrictions on

speech bore little relationship to the purpose for the gov-

ernment funding; their only aim was to limit expression. In

Speiser, the purpose of the tax exemption was presumably

to reward veterans, an objective unrelated to the desirabil-

ity of signing the prescribed declaration. And in Perry v.

Sindermann, supra, the purpose of employing the teacher

was to provide instruction for students. Restricting speech

that did not interfere with the performance of that task ob-

viously did not serve that purpose. Here, by contrast, as

we have shown, Congress has consistently determined that

the prohibition against editorializing by CPB-funded sta-

tions is integral to the purposes it sought to achieve in

creating and subsidizing a public broadcasting system.

Section 399, in sum, does not prevent any person or or-

ganization from engaging in any form of expression. “Con-

gress has simply chosen not to pay for [public broadcasting

college professor who received a small grant to conduct research in a

particular area because, assuming that he properly performed the re-

search called for in the grant, the government would not be financing

his other work any more than it would be financing his private life.

However, to take a hypothetical more analogous to Section 399, if the

government gave him access to a federally financed laboratory for the

purpose of doing the grant research, it could legitimately insist that he

not use the facility for printing political propaganda pamphlets.

stations’ editorializing)” (TWR, supra, slip op. 5). This

Court should “again reject the ‘notion that First Amend-

ment rights are somehow not fully realized unless they are

subsidized by the State’” (id. at 5, quoting Cammarano v.

Unite.’ States, 358 U.S. 498, 515 (1959) (Douglas, J., con-

curring)).78

CONCLUSION

The judgment of the district court should be reversed.

Respectfully submitted.

Rex E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

ANTHONY J. STEINMEYER

MICHAEL JAY SINGER

Attorneys

JUNE 1983

78 There are many other valid statutes based on the same principle.

For instance, Congress has prohibited the unauthorized use of federal

funds for lobbying (18 U.S.C. 1913), even though lobbying is protected

by the First Amendment. Congress has also prohibited the Interna-

tional Communication Agency (the successor of the United States I1-

formation Agency and the Voice of America) from disseminating infor-

mation within this country (22 U.S.C. (Supp. V) 1461), despite the fact

that such a restriction would certainly violate the First Amendment if

applied to a private news organization. And 2 U.S.C. 44lc prohibits

government contractors from making political contributions during the

life of the contract even though the First Amendment protects a citi-

zen’s right to make such contributions (see Buckley v. Valeo, 424 U.S.

1, 22-23 (1976)).

APPENDIX

1. The First Amendment to the Constitution provides in

pertinent part:

Congress shall make no law * * * abridging the

freedom of speech, or of the press * * *.

2. 47 U.S.C. (Supp. V) 399, as amended by the Public

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

Title XII, Section 1229, 95 Stat. 730, provides:

No noncommercial educational broadcasting station

which receives a grant from the Corporation [for Pub-

lic Broadcasting] under subpart C of this part may en-

gage in editorializing. No noncommercial educational

broadcasting station may support or oppose any candi-

date for political office.

ATTACHMENT A

(Appendix to Defendant's Supplemental Memorandum on

Amendment of Section 399 (Sept. 14, 1981).

CENTER FOR LAW

IN THE PUBLIC INTEREST

10203 Santa Monica Boulevard

Fifth Floor

Los Angeles, California 90067

Telephone: (213) 879-5588

July 13, 1981

Mr. Andrew Tashman, Esq.

Special Litigation Counsel

Civil Division, Federal Programs Branch

Department of Justice

Washington, DC 20530

re: League of Women Voters v. FCC

Civ. No. 79-1562-MML (Px)

Dear Andrew:

Enclosed is a copy of our Supplemental Memorandum in

Support of Motion for Summary Judgment.

Due to the fact that Pacifica’s Director is out of town this

month, I am having some problems getting the detailed

funding figures that you had requested. Moreover, Pacifica

is reluctant to release any more financial information than

is absolutely necessary. Pacifica’s chairman, Peter Franck,

has agreed to reveal the following facts: In fiscal year 1981,

between 20-25% of Pacifica’s gross operating budget comes

from CPB grants. This is a higher percentage than ever be-

fore; the percentage of the budget derived from CPB funds

has increased a little bit each year. Pacifica has also ob-

tained funds under the National Telecommunications and

Information Agency's facilities program. (For the record,

NTIA was part of HEW until about two years ago when it

I would very much appreciate your sending a copy of

your reply brief by express mail to Peter Franck at the

same time you send us a copy. He is leaving the country on

July 24th and would like the opportunity to review your pa-

pers before leaving. His address is:

~_* * &

Thank you, and I’ll talk to you soon.

Very truly yours,

Alletta d’A. Belin

Ad’AB:pmk

Enclosure

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.