Appellees Brief — Federal Communications Commission v. League of Women Voters of California

Office Supreme Court, U.S,

FIL Ee

No. 82-912 SEP 19 1933

IN THE

Supreme Court of the United States:

October Term, 1982

FEDERAL COMMUNICATIONS COMMISSION,

Appellant,

vs.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ef al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF FOR APPELLEES

LEAGUE OF WOMEN VOTERS

OF CALIFORNIA, ET AL.

Frepric D. WOOCHER

Lucas GUTTENTAG*

MARILYN O. TESAURO

Bitt LANN LEE

CARLYLE W. HALL, Jr.

JOHN R. PHILLIPS

Center for Law in the

Public Interest

10951 W. Pico Boulevard

Los Angeles, Calif. 90064

(213) 470-3000

Attorneys for Appellees

Of Counsel:

TRACY WESTEN *Counsel of Record

Parker & Son, Inc. Law Printers, Los Angeles. Phone 724-6622

TABLE OF CONTENTS

Page

IEE i dhittatasonssstadeccseastvecad denueensressousceeae l

REE UL lee A a ae RA he AR Fe 2

Noncommercial Broadcasting and Section 399 ...... 3

Ne cca ceadens seseeeouna 8

I SN 6 coca akc oceiubestscissovcdesepsshvyaes 10

INN Ais Lbieinsds nchdéuidanivch thdsessspadcuasevconenenie 13

1. Section 399’s Blanket Suppression of the Non-

Commercial Broadcasters’ Editorial Voice Vio-

lates the First Amendment Guarantees of Freedom

of Speech and Freedom of the Press ............. 13

A. Section 399 Suppresses Speech That Is En-

titled to the Fullest Protection in Our Con-

Stitutional Framework ................0.0eeeee 14

1. The Noncommercial Broadcaster’s Edi-

torial Opinions Lie at the Very Heart of

the First Amendment ..............sssec00 14

2. The *‘Special Character’’ of Broadcast-

ing Mandates the Maximization of the

Number and Diversity of Editorial View-

points, Not Their Suppression ........... 18

B. There Are No Compelling Government In-

terests to Justify Section 399’s Restraint on

Fey TORII. ckdcssccninavistsesstecsesbunes 20

1. The Articulated Congressional Desire to

Suppress Critical Editorial Comment Is

Not a Legitimate Government Interest

2. The Interests Asserted by the Govern-

ment Cannot Justify Section 399’s Ban

OE) BID cn cccccccoccesocccsesennnans 24

Page

a. The Alleged Interest in Preventing

CPB-Funded Stations From Propa-

gating Their ‘*Private’’ Viewpoints Is

Neither Legitimate Nor Compelling 24

b. The Alleged Interest in Preventing

CPB-Funded Stations From Becom-

ing Government Propaganda Organs

Is Far From Compelling .............. 31

C. Section 399’s Ban on Editorializing Is an

Irrational and Impermissible Response to Its

Purported ODjectives .........cccccecessccsoees 34

II. Section 399’s Discriminatory Suppression of the

CPB-Funded Broadcaster’s Editorial Opinions

Violates the Equal Protection Guarantees of the

First and Fifth Amendments ..................0055 40

III. Section 399 Unconstitutionally Conditions the

Receipt of a CPB Grant on the Broadcaster’s

Forfeiture of Its First Amendment Rights ..... 42

I ee eT daceaievadivadviaakool 47

iil

TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Board of Education, 431 U.S. 209

I as a i 29

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

NE RTE Nak cvaciksivdadosttivedereasuseatedecrncnstabseaars 31

Antonelli v. Hammond, 308 F.Supp. 1329 (D. Mass.

MEP Gapinindonshvscotsusssrhsders acnieladivesasoanadidaa 28

povnibn ie earaVEGsaeeseabhasdnneedtrbedeubinseerchi truiale 14, 20

Bazaar v. Fortune, 476 F.2d 570 (Sth Cir.), aff'd as

modified en banc, 489 F.2d 225 (Sth Cir. 1973) (en

banc), cert. denied, 416 U.S. 995 (1974) ............ 28

Bigelow v. Virginia, 421 U.S. 809 (1975) .............. 33

Buckley v. Valeo, 424 U.S. 1 (1976) ................004.

CBS, Inc. v. Democratic National Committee, 412 U.S.

|, ERR CARR Bete FAN 18, 19, 26, 27, 39

CBS, Inc. v. FCC, 453 U.S. 367 (1981) ..........ce0ee0 19

Carey v. Brown, 447 U.S. 455 (1980) ..... 13, 20, 38, 40

Central Hudson Gas v. Public Service Comm’n, 447

SP NT IPE saci acrid ceneisevssadcannedecepdecinamtons 36

Citizens Against Rent Control v. Berkeley, 454 U.S.

MUTINY nce Teinansh igatbudendus scubagedskeackesenciiiial 13

Civil Service Comm'n v. National Assoc. of Letter Car-

SER, ED TI BOD CII SD vccwsevincostavnisse oc cctsties 35

Community-Service Broadcasting of Mid-America, Inc.

v. FCC, 593 F.2d 1102 (D.C. Cir. 1978) (en banc)

sdabieddasebtvecupinantirasiondes 7, 20, 24, 27, 28, 38, 40

Consolidated Edison Co. v. Public Service Comm'n,

447 U.S. 530 (1980) oo... cece cece eens 13, 21, 24, 34

Dothard v. Rawlinson, 433 U.S. 323 (1977) ........... 25

EEOC v. Wyoming, 103 S.Ct. 1054 (1983) ............ 33

Evening Star Broadcasting Co. , 27 F.C.C.2d 216 (1971)

Pee suhdbteiensbabechihisasnsudisscdgiorsesstvectecess 19, 26

First National Bank of Boston v. Bellotti, 435 U.S.

NN ES passim

Frost & Frost Trucking Co. v. Railroad Comm'n, 271

ais Lact svsbacenscesevessasnenceuses 42, 43

Fullilove v. Klutznick, 448 U.S. 448 (1980) ........... 24

Gambino v. Fairfax County School Bd., 564 F.2d 157

(4th Cir. 1977), aff'g per curiam, 429 F.Supp. 731

acd ccc dndetadbategessenivibasvecevesousess 28

Gottfried v. FCC, 655 F.2d 297 (D.C. Cir. 1981), rev'd

on other grounds sub nom., Community Television

of Southern California v. Gottfried, 103 S.Ct. 885

halen el ob isscucctnestsdedasessucctteesspessnttnteses 27

Greater Boston Television Corp. v. FCC, 444 F.2d 841

(D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971)

OS ERE GUE Sa ee a a RET ee 17

Grosjean v. American Press Co., 297 U.S. 233 (1936)

heniiteirinet cca tiie tie) i ecglaeiadsseibckabésapasdbeane 14, 15

Hannegan v. Esquire, 327 U.S. 146 (1946) ....... 27, 43

Harris v. McRae, 448 U.S. 297 (1980) ...............64 45

In re Complaint of Accuracy in Media, Inc., 45 F.C.C.2d

5 A aS aa oe 37

Page

In re Editorializing by Broadcast Licensees, 13 F.C.C.

GUE incpncntiotanssesncns 8, 17, 31, 36, 37, 40, 42

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)

Siu dtccrebsak Pateadate +dhicnuuheomieatieaienecuntdesiataesauaond 18

Landmark Communications, Inc. v. Virginia, 435 US.

IEE cnitl ccclbuduiessiees vitecsebhpadakeasvoeausensienne 34

Mayflower Broadcasting Corp., 8 F.C.C. 333 (1940)

McDaniel v. Paty, 435 U.S. 618 (1978) ...... 31, 42, 44

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

GINNEEE ‘cpucinbuathasvanrincbsscndsshncadauentovenetentetn 13, 34

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

SOUP Sikcucdpursdesmmanstbeaiceasta sc naaebenabal 15, 21, 39

Mills v. Alabama, 384 U.S. 214 4 (1966) snaeih epee 15, 21

Miners Broadcasting Service, Inc., 20 F.C.C.2d 1061

GU Sokcisecnteghebosandeouabioscsessceescsnesnbichsstalmions 17

Minneapolis Star & Tribune Co. v. Minnesota, 103 S.Ct.

ERED. abides beeuncsccchiéseeresenpensnneicdeasnaenen 21

NAACP v. Button, 371 U.S. 415 (1963) ............... 36

NAACP v. Claiborne Hardware Co., 102 S.Ct. 3409

SNEED eittastacucighawecnénabtderesésnspetevuonapsqueusiineral 13

N.L.R.B. v. Fruit & Veg. Packers and Warehousemen,

ERs SIE Ue Ae CODOOD ccccccsvespseccecungveseiapepis 37

Knsdeiae cdehakintoddnnds sogasinconcauecseeseeeemesenmeiieennl 14

sevednecccovensebssesesenssucseceonsbabensneogen coetnensinians 14

New York Times Co. v. United States, 403 U.S. 713

GRBTED « ccccorccsercsccsconssecoccocessccssesecooepecoonsteaite 34

vi

Page

Perry v. Sindermann, 408 U.S. 593 (1972) ........ 42, 45

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)

osvhansscdécqavsdbecs b)cnnceedieebbetactacdtiaLianmnnne 40, 42

RKO General, Inc., 44 F.C.C.2d 149 (1969) .......... 17

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)

sins adinebusouiucxvmmeeivhceramboventalneal 14, 18, 19, 31, 40

Regan v. Taxation With Representation, 103 S.Ct. 1997

CTBEDD <ecedcessencsevsubsecnssbilsaebeaniane 12, 37, 44

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

CRUE ai.xussnidcccnscatdceeocenstesdenentavaiantetensiaaae 14

Schiff v. Williams, 519 F.2d 257 (Sth Cir. 1975) ..... 28

Schneider v. State, 308 U.S. 147 (1939) ................ 37

Sherbert v. Verner, 374 U.S. 398 (1963) ............... 43

Smith v. Daily Mail Publishing Co. , 443 U.S. 97 (1977)

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546

CORT ici skcnckcbordcunicnecunsdcuaeinseee 28

Speiser v. Randall, 537 U.S. 513 (1958) ..............4.

Spence v. Washington, 418 U.S. 405 (1974) ........... 37

Talley v. California, 362 U.S. 60 (1960) ............... 25

Thomas v. Collins, 323 U.S. 516 (1945) .......... 37, 43

Thornhill v. Alabama, 310 U.S. 88 (1940) ............. 14

United Mine Workers v. Illinois State Bar Ass’n, 389

Ce BaF COED asdsinchasctooneivunteineutbicsceuenen 31

United States v. Paramount Pictures, Inc. , 334 U.S. 131

SEITE ip sase VocunsuiccaddaseypansbeenCaskshasbedneniiaiaa 18

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) ...... 39

White v. New Hampshire Dept. of Employment Secu-

rity, 455 U.S. 445 (1982) 2.0... ccc ccceceeceeeeee ewes 1

vii

Page

Whitney v. California, 274 U.S. 357 (1927) ...... 18, 40

Widmar v. Vincent, 454 U.S. 263 (1981) .............. 28

Williams v. Rhodes, 393 U.S. 23 (1968) ............... 31

Writers Guild v. FCC, 423 F.Supp. 1064 (C.D. Cal.),

vacated on jurisdictional grounds, 609 F.2d 355 (9th

SEEUMIIE co0i dds dca ek ccuuibasvesteetanstaneqetobewuagpe 38

United States Constitution

PU III «on. dnawecocvccccccasenscospaccstececss passim

SEINE sch cpaveeseseveccaecooscccccevecccannee 12, 40

Statutes and Regulations

RE OUND, 115. ccssgencuhtnevnescsvecenchbevs 35

I, SEE gai ncscccendlonnvansnesedicesscsdsansanaate 46

NRE anc sdncnascspastanascesesscavecgendes hie

SS WU \nnscnbisandivecdvansscdivgssnnaayheeppestent 30

Public Broadcasting Act of 1967, Pub. L. No. 90-129,

81 Stat. 365 (codified at 47 U.S.C. §§ 390 et seq.)

(1967)

RP DMNIINT) Socsassesenccesceess)psoeadans 5, 6

nn censvessessconssaunons 6

BPE TA) coe siecsececccnsccceccncssnie cee 6

WUD) isn: cncccscccscccsncousssseosstats 6

ee ETT 6

ci iicadiziss weceabnament 6

47 UG.C. BOGENOMA) .00.000.0..0..0000ccccecansses 6

PO ee Ce) |) ae ree 6

Sa a ek. ete 6

47 U.S.C. § IDEKNBMA) .........0.0..ccscccccssececes 7

WR I oa... s.ccccacsgsscnsnscessndeiont 7

I I on iicecssscistnssecocesosonioh 7

47 U.S.C. § B9G(K)9) oo... ccc ccc cecc eee eee nee eeeneenes 30

Vill

Page

BT Meas BS SPE OIIED Sisccscvecsenavocecstesusoniees 7

Oe Rie EI) Sc ntncacvicecccdcavscnenveganns 23

EE CEE Ls on oss weuhawassaued Guacdasneeeate 6

I Ss dann ienccabcvdesseduncinntidasaveebenes 6

Oe cnn cnc tc cccvuescsscopceduevndesscceuns 7

UN: MELEE cobsncausachowsshcacsecehsscntsunsastes 7

ls cad da eetuunseuenesdaauneis 7

Internal Revenue Code

§ SO1(cN3) .....5..... ale cab a vapaountanal 44, 46

a suey acacia a ua liethgeienkpabs 44, 45

Te eh ed cncsauscetpudvnapnadenesaniatnaleh 46

Educational Television Facilities Act of 1962, Pub. L.

Sh PE ED voc cccsdcpasencdsncssucnesecveves 4

I I nn ae ins oo casa ncoesegdoanedaen 26

Miscellaneous

Advertising Age, Sept. 9, 1962 ...../..ccccssccsesesececes 27

Advisory Committee on Rules for Civil Procedure, Re-

port of Proposed Amendments to Rules of Civil Pro-

cedure for the District Courts of the United States, 5

Pe Ss MP CAO: esepsaccsovencccvecscsecsecssonee 2

E. Barnouw, The Sponsor: Notes on a Modern Potentate

ON a ie ee aa os Cet ccckastnadks. onlvenehs 3

1983 Broadcasting/Cablecasting Yearbook .......... 3, 4

J. Burke, An Historical-Analytical Study of the Legis-

lative and Political Origins of the Public Broadcasting

Act of 1967 (1972) (dissertation published by Uni-

te III «ina di cunscacstaneseséescsinesuscie 22, 23

Canby, The First Amendment and the State as Editor:

Implications for Public Broadcasting, 52 Texas L.

Se UIST cacuninnahseabichabectessansplenneoensiiins 33

Page

Carnegie Commission on Educational Television, Public

Television: A Program for Action (1967) (“‘Carnegie

Bi; B nsentsacdnnbesdgdeiladnsvnceteisesaduinesase sulla aiueaane 4, 5

Carnegie Commission on the Future of Public Broad-

casting, A Public Trust (1979) (*‘Carnegie II’’)

soduseweluanhcudvetusteapediiavaneiueuraseniarele 3, 5, 16, 41

Letter from Attorney General Benjamin R. Civiletti to

Senate Majority Leader Robert C. Byrd, October 11,

FURUTE cclinsbviheasininudssabosanescaus umboiieonsiachvaiaeaaen 9

113 Cong. Rec. (1967):

SR, PETES wastuntedans cuésevssnccereeqsadvesescadaupeaeel 22

IEE cca Rida deGnghhdsadesivekeadivtacescnseessensebbhaal 22

DA AIT Bika dc tvbinsd ividdnddcchusvvascdlinpaweGeaaeeeeee 22

PRE ciihuadcudedcecsisacheasippcdaaipeexcbanteomnaleel 36

SE EENID Ui dapcccnccasdcncadvuscchacanesesdsesdeaheeaee 22

MEIN a divdeastdusoecendacccbieoasesusta retsaieelone 21, 32

SND Kawenaccens dnendsasevvevacnchscesaieapualaeeal 36

CPB, Annual Report 1981 ...............0c08 6, 9, 26, 27

CPB, 1980-81 Comprehensive Community Service Grant

PROMI ca scivvonivancvescsesisivecdssecedsdstasecsasmeaeiene 7

CPB, Developing a National Resource: Annual Report

NOPD <ccctesssnnsucnauvininesossestdeushcsauanidumaebadiine 23

CPB, Inventory of Federal Funds Distributed to Public

Telecommunications Entities, FY 1981 (June 1983)

CPB, 1982 Public Broadcasting Directory ...........-.. 26

CPB, Public Broadcasting: The First 10 Years,’’ 8 CPB

Reports No. 24 (Nov. 7, 1977) ........cccceceeeeeeeees 23

CPB, Public Broadcasting Income: FY 1982 (Prelimi-

UND Ce TEED neni sccccnsncccosccaccacessccoscubeumbinn 26

CPB, Public Broadcasting 1969 ................cccceeeeees 23

Page

CPB, Public Telecommunications Audit Guide and Re-

quirements (June 1980) ...........ccccccseceeeeeeeeeeeees

T. Emerson, The System of Freedom of Expression

SANG tat ced nhgckussenschacekecsvartacusnenrrcetasacs

FCC, 1960 ‘Blue Book’’ Programming Statement, 25

Fed. Reg. 7295 (1960) ..........cccccccccccccccecsees 8,

F.C.C. News Release, Broadcast Station Totals for June

BD GOOD BG TSGSD ccnecccsccisccccicrccccscsccvseccencs

EG, PEED © Sc olen scedoUanavasndsaesnadderstoos l,

Fang & Whelan, Survey of Television Editorials and

Ombudsman Segments, 17 J. Broadcasting 363 (1973)

JaisnigihMinviacesiecn ieeussd Nb ata iiadadeus saamen apa cinns Gee

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

Hearings before the House Committee on Interstate and

Foreign Commerce on the Public Television Act of

1967, 90th Cong., Ist Sess. ............ccceeeeeeees 8,

H. Hoffman, Pacifica and the Idea of Freedom (1965)

CEE EEE EEE EEE

H.R. Rep. No. 1559, 87th Cong., 2d Sess. (1962) ....

H.R. Rep. No. 572, 90th Cong., Ist Sess. (1967) ....

Kalven, Broadcasting, Public Policy and the First

Amendment, 10 J. L. & Econ. 15 (1967) ............

Lindsey, Public Broadcasting: Editorial Restraints and

the First Amendment, 28 Fed. Com. B.J. 63 (1975)

Note, The Public Broadcasting Act: The Licensee Ed-

itorializing Ban and the First Amendment, 13 U. Mich.

J. of Law Reform 541 (1980) ............ccccceceeeeees

Notice of Proposed Rulemaking In re Repeal or Mod-

ification of the Personal Attack and Political Editorial

Rules, FCC Gen. Docket No. 83-484 (adopted May

BiRy GERD <ancccsscoccocscccccssssecseroccstsapeescetins 17,

33

22

18

24

xi

OMB, Budget of the U.S. Government, FY 1984 ..... 28

E. Routt, Dimensions of Broadcast Editorializing (1974)

FE ORES APES AR SAAB ER re ed PE YSAE SO A DEORE END SU 15

S. Rep. No. 222, 90th Cong., Ist Sess. (1967) .... 5, 23

Shiffrin, Government Speech, 27 U.C.L.A. L. Rev. 565

I ee gL os seh atdsacaiuuas 27

Stewart, ‘Or of the Press’’, 26 Hastings L. J. 631 (1975)

Toohey, Section 399: The Constitution Giveth and Con-

gress Taketh Away, 6 Educ. Broadcasting Rev. 31

PUIPME: ccisalsaese cdg rhchanasiles eimai te tkeaumnse ean 24

No. 82-912

IN THE

Supreme Court of the United States

October Term, 1982

FEDERAL COMMUNICATIONS COMMISSION,

Appellant,

vs.

LEAGUE OF WOME?! VOTERS OF CALIFORNIA, ef al.,

Appellees.

BRIEF FOR APPELLEES |

LEAGUE OF WOMEN VOTERS

OF CALIFORNIA, ET AL.

JURISDICTION

The jurisdiction of this Court rests on 28 U.S.C. § 1252. How-

ever, the Government's failure to have filed its notice of appeal

within the time prescribed by Supreme Court Rule 11.3 defeats

jurisdiction in this Court. The lack of jurisdiction resulting from the

Government’s premature, and thus invalid, filing of its notice of

appeal is fully discussed in appellees’ Motion to Dismiss or Affirm,

at 11-13.'

‘Appellees have little to add on the jurisdictional issue, although two

points raised in the Government’s Reply Memorandum merit brief re-

sponse. First, White v. New Hampshire Dept. of Employment Security,

455 U.S. 445 (1982), has no bearing on the instant question. There, the

Court held that a request for attorneys’ fees, filed four and one-half months

after the entry of a final judgment, did not constitute a ‘motion to alter

or amend’’ under Fed. R. Civ. P. 59(e). Here, the District Court awarded

attorneys’ fees in its judgment, following which the Government filed a

true Motion to Alter or Amend pursuant to Rule 59(e). As such, the motion

(footnote continued on following page)

eeceiabis

STATEMENT

Appellees brought this lawsuit to vindicate their rights to express

and receive the views of noncommercial broadcasters on issues of

public importance.’ The District Court agreed that the First Amend-

ment guarantees of freedom of speech and freedom of the press are

directly and unjustifiably violated by 47 U.S.C. § 399, which pro-

hibits ‘‘editorializing’’ by any noncommercial educational broad-

casting station that receives a grant from the Corporation for Public

Broadcasting. As the court found, § 399 outlaws speech that lies at

the very heart of the First Amendment, and the government interests

purportedly served by the statute are far too speculative to support

its abridgment of fundamental constitutional rights.

In somewhat paradoxical fashion, however, the Government ar-

gues that the ‘‘special history, character, and needs’’ of noncom-

mercial licensees actually demand the suppression of their editorial

suspended the finality of the judgment, rendering untimely and ineffective

the intervening notice of appeal to this Court.

Second, even though preliminary and final orders holding acts of Con-

gress unconstitutional are immediately appealable under 28 U.S.C. § 1252,

it does not follow that such an order may be appealed while a motion to

alter or amend is pending in the district court. Rule 59(e) was adopted in

order to ‘‘make . . . clear that the district court possesses the power’’ to

rectify its own mistakes. Advisory Committee on Rules for Civil Procedure,

5 F.R.D. 433, 476 (1946). This power exists whether the court’s ruling

is interlocutory or final. For reasons of judicial economy and comity, even

an appealable interlocutory ruling must nevertheless be ‘‘final,”’ in the

sense that the court is not still considering or reconsidering its decision.

Accordingly, the fact that jurisdiction in this case lies under 28 U.S.C.

§ 1252 does not affect the invalidity of the Government's attempt to appeal

while its motion to alter or amend was pending before the District Court.

"Appellee Pacifica Foundation is a nonprofit educational corporation that

owns and operates noncommercial broadcasting stations in five major mar-

kets. Pacifica was founded in 1949 with the explicit objective of providing

the public with access to a diverse range of opinions and ideas. See H.

Hoffman, Pacifica and the Idea of Freedom (1965). Appellee League of

Women Voters of California is a nonprofit, nonpartisan organization de-

voted to promoting political responsibility through the informed partici-

pation of citizens in self-government. Appellee Henry Waxman is a United

States Congressman and a listener and viewer of noncommercial broad-

casting. J.S. App. 6a.

saline

viewpoints in order to further First Amendment values. Appellees

therefore begin by reviewing the development and structure of non-

commercial broadcasting in this country, in order to demonstrate

that § 399 is antithetical not only to the tradition of freedom of

speech and a free press, but to the very role that noncommercial

broadcasting was designed to serve in our society.

Noncommercial Broadcasting and Section 399

In the beginning, there was noncommercial broadcasting — and

only noncommercial! broadcasting. In fact, the first four hundred

radio stations licensed in this country were all noncommercial.’

Many of them were operated by educational institutions: Some

broadcast adult education courses; others enlightened their com-

munities with a variety of programs; but none of these stations sold

air time.* The first commercial radio station (WEAF) was inaugu-

rated in August, 1922,° and in the decades that followed, broad-

casting attractcu a strong following. Although commercial stations

soon outnumbered their noncommercial counterparts, many non-

commercial stations endured, and their programming provided an

important alternative to sponsored broadcasting for millions of

Americans.°

*E. Barnouw, The Sponsor: Notes on a Modern Potentate 9-10 (1978)

(**Sponsor’’). The first radio station began broadcasting in 1919 from the

University of Wisconsin. S. Frost, Education's Own Stations 464 (1937).

*E. Barnouw, Sponsor 12.

‘Id. at 15.

*By 1945, noncommercial broadcasting had so established itself that the

Federal Communications Commission (FCC) decided to allocate 20 of the

100 frequencies on the new FM spectrum exclusively for noncommercial

educational use. /983 Broadcasting/Cablecasting Yearbook A-6 (**1983

Yearbook’’). Seven years later, the FCC made a similar assignment of

television channels to noncommercial stations in 242 communities. Car-

negie Commission on the Future of Public Broadcasting, A Public Trust

33-34 (197°) (‘Carnegie II’). Although a majority of the noncommercial

stations today are licensed to broadcast over these reserved frequencies,

many — including WNET in New York City, the largest noncommercial

television station in the country — operate on nonreserved channels. In

fact, over 125 noncommercial radio and television stations, including two

of appellee Pacifica’s stations, operate on nonreserved frequencies. /983

Yearbook B-336 to 368, C-79 to 81.

—

It was not until 1962 that the federal government provided any

financial assistance to noncommercial broadcasting. During their

first forty years, noncommercial stations had supported themselves

through private contributions and funding from state and local gov-

ernments and educational systems. Most wf the early stations had

been affiliated with colleges and universities, but the 1950s saw the

development of many noncommercial stations that were owned and

operated by private, nonprofit community organizations. Deriving

much of their income from donations, auctions, and foundation

grants, these stations had begun to broadcast programs of more

general cultural and educational interest.’ With the passage of the

Educational Television Facilities Act of 1962, Pub. L. No. 87-447,

76 Stat 64, Congress recognized the great potential of these stations

and attempted to stimulate their growth throughout the country by

authorizing the former Department of Health, Education and Welfare

(HEW) to distribute $32 million in ma:-hing grants over a five-year

period for the construction of noncommercial television facilities.

Thus, on the eve of the landmark 1967 Carnegie Report,” there

were already several hundred noncommercial broadcasters **pro-

vid{ing] a much needed source of cultural and informational pro-

gramming for all audiences .. . ."” H.R. Rep. No. 1559, 87th Cong..,

2d Sess. 3 (1962). No stations were operated by the federal gov-

ernment; indeed, they had received only minimal federal funding.”

Noncommercial licensees, like their commercial counterparts, op-

erated as independent journalistic entities vested with the broadest

discretion to determine the content of their broadcasts — a discretion

which they exercised to present informative, innovative, and some-

times controversial programs geared to the specific needs of their

community. Only the chronic underfinancing of noncommercial

broadcasting darkened its bright future.

"E. Barnouw, Sponsor 59-61.

‘Carnegie Commission on Educational Television, Public Television: A

Program for Action (1967) (“*‘Carnegie I°*).

"Federal assistance to the 124 noncommercial television stations then in

operation amounted to barely 5% of their cumulative historical financial

support (Carnegie |, at 21, 250 (Table II)), and the over 300 noncommercial

radio stations had received no federal support at all.

Ss oe

Against this background, the prestigious Carnegie Commission

recommended a significant increase in federal assistance to non-

commercial broadcasting, concluding that a well-financed educa-

tional broadcasting system was imperative in order to provide ‘‘all

that is of human interest and importance which is not at the moment

appropriate or available for support by advertising . . . ."’ Carnegie

/, at 1. The Commission called upon the federal government to

supplement the existing state, local, and private funding of non-

commercial broadcasting, so that it could realize its full potential

as a truly complementary alternative to the commercial system. /d.

at 227-34.

The Carnegie Report realized that an expanded federal role in

financing ‘‘public’’'® broadcasting would require that special care

be taken to preserve the two principles underlying the American

system of broadcasting: independent local stations serving the needs

of their community are the ‘‘bedrock’’ of the system; and the federal

government cannot be permitted to interfere with programming con-

tent. The Commission therefore recommended the creation of a

private, nongovernmental, nonprofit corporation to receive and dis-

burse funds for program production, to shield stations from gov-

ernmental or political pressures, and to provide leadership for an

expanded national interconnection system. /d. at 5, 36-41.

The Carnegie Report met with widespread approval, and its pro-

posals were the basis of the Public Broadcasting Act of 1967, Pub.

L. No. 90-129, 81 Stat. 365 (codified at 47 U.S.C. §§ 390 et seq.).

The Act reflected Congress’ acknowledgment of the tremendous

value of an expanded noncommercial broadcasting system in fur-

nishing a diversity of viewpoints on issues of public concern." Titles

"The Commission coined the term ‘‘public’’ television not to suggest

that noncommercial licensees may be subjected to greater government

controls than their commercial colleagues, but merely to ‘‘dramatize the

emphasis on programming for general enrichment and entertainment, as

well as for classroom instruction."’ Carnegie Il, at 35.

"'As the Senate Report concluded: ‘Particularly in the area of public

affairs your committee feels that noncommercial broadcasting is uniquely

fitted to offer indepth coverage and analysis which will lead to a better

informed and enlightened public.’ S. Rep. No. 222, 90th Cong., Ist Sess.

7 (1967). It is noteworthy that at the time the Senate Report was written,

the bill did not contain a ban on editorializing.

‘anil.

I and III of the legislation set aside over $38 million to continue

HEW'’s construction grants program for three more years and to

finance a study of instructional television. But the heart of the Act

was Title Il, which authorized $9 million to create and fund the

Corporation for Public Broadcasting (CPB), an independent, non-

profit private corporation that would disburse federal and other aid"?

to selected stations and other entities for the production anu/or ac-

quisition of educational programming.

Congress took great pains to ensure that the legislation established

no inroads on the local licensees’ autonomy. Two levels of safe-

guards were provided: CPB was insulated from the threat of gov-

ernment or political influence, and local stations were protected

from any possible coercion by CPB.'’ Perhaps most important, the

funding of local stations was removed entirely from the political

process. CPB grants to licensees must be made in accordance with

"CPB receives substantial funds from nonfederal sources. For example,

in February 1981, CPB was given $150 million by the Annenberg School

of Communications for the support of telecommunications technologies in

higher education. CPB, Annual Report 198], at 14.

"For example, the Act expressly declares that CPB was created *‘to

afford maximum protection from extraneous interference and control."’ 47

U.S.C. § 396(a)(7). To guarantee CPB’s independence from government

control, the Act provides that the Corporation **will not be an agency or

establishment of the United States Government"’ (§ 396(b)), and it pro-

hibits any federal agency or employee from exercising ‘‘any direction,

supervision, or control’’ over noncommercial stations, CPB. or any of its

grantees (§ 398(a)), or over ‘‘the content or distribution’’ of noncommer-

cial programs and services (§ 398(c)). To ensure that CPB remains free

from political influences, the Corporation is governed by a bi-partisan

board of directors (§ 396(c)(1)), none of whom can be employed by the

federal government (§ 396(c)(2)); no political considerations can enter into

its personnel actions (§ 396(e)(2)); and it may not contribute to or support

any political party or candidate (§ 396(f)). Furthermore, to protect the

autonomy of noncommercial! stations, CPB is prohibited from owning or

operating any broadcast station, network, interconnection system, or pro-

duction facility (§ 396(g)3)(A)), and from producing, scheduling, or dis-

seminating programs to the public ($ 396(g)(3)(B)). In addition, the Act

requires the Corporation to carry out its functions *‘in ways that will most

effectively assure the maximum freedom"’ of local stations from interfer-

ence with their program content (§ 396(g)1)(D)).

ov

pre-determined, nondiscretionary objective criteria.'* In short, the

Public Broadcasting Act established a framework that guaranteed

as fully as possible the freedom of local stations from government

or political influence. Congress relied upon procedural safeguards

to ensure that its funds would be spent as intended'’ and eschewed

even the slightest intrusion into the licensee's journalistic

independence.

But there was one significant exception. In a break from existing

law, FCC policy, and broadcasting practice, the Act for the first

time imposed restrictions on the content of the station’s programming:

No noncommercial educational broadcasting station may en-

gage in editorializing or may support or oppose any candidate

for political office.

47 U.S.C. § 399 (1967).'° Violation of § 399 is punishable by a

range of sanctions, including license revocation, denial of license

renewal, and imposition of criminal penalties for willful and know-

ing transgressions. 47 U.S.C. § 501.

The legislative history behind § 399 is sparse. Neither the Admin-

istration proposal nor the bill that had passed the Senate contained

any such restriction. Not until the House Committee was considering

its version did the issue of editorializing arise. Prior to 1967, all

“The Act specifies how CPB is to divide its appropriations between

television and radio, and between stations and program production entities

(§ 396(k)(3)(A)). Grants to individual licensees are then made pursuant to

a pre-determined ma:hematical formula based upon objective criteria such

as their market size and their share of the total non-federal funding sources

in preceding years. See *‘CSG Eligibility Criteria,’’ in CPB, /980-8/

Comprehensive Community Service Grant Review.

‘For example, noncommercial stations are subject to special require-

ments governing recordkeeping and audits (§ 396(1)(3)(B)), financial dis-

closure (§ 396(k)(5)), and open meetings (§ 396(k)(4)).

"In 1973, the editorializing ban was redesignated as § 399(a), when

Congress added a companion provision, § 399(b), which required non-

commercial broadcasters receiving federal funds to make audio recordings

of all broadcasts *‘in which any issue of public importance is discussed.”’

That provision was ruled unconstitutional in Community-Service Broad-

casting of Mid-America, Inc. v. FCC, 593 F.2d 1102 (D.C. Cir. 1978)

(en banc), and was subsequently repealed. returning § 399 to its original

enumeration.

saat

Stations — whether commercial or noncommercial — had been

permitted to editorialize freely.'’ Indeed, the FCC regarded edito-

rializing as an important aspect of the licensee’s obligation to broad-

cast ‘‘in the public interest."’ See Jn re Editorializing by Broadcast

Licensees, 13 F.C.C. 1246 (1949) (*‘Editorializing Report’’); Pro-

gramming Statement, 25 Fed. Reg. 7295 (1960). Yet in the House

deliberations, the right of noncommercial broadcasters to express

their own views suddenly came under attack. As Rep. William

Springer, § 399’s sponsor, explained, *‘There are some of us who

have very strong feelings because they have been editorialized

against.’’ Hearings Before the House Committee on Interstate and

Foreign Commerce on the Public Television Act of 1967, 90th

Cong., Ist Sess. 641 (‘‘House Hearings’’). When the Senate acceded

to the House’s addition of § 399, the ban on editorializing became

a part of the Act, and the over 500 noncommercial stations then

broadcasting — including hundreds that would never receive a penny

of federal aid — were barred from airing their viewpoints on all

public issues.

Proceedings Below

Appellees filed this action on April 30, 1979. The Department

of Justice, representing the FCC, responded by notifying the District

Court that it could not and would not attempt to defend the consti-

tutionality of § 399.'* The Senate, appearing as amicus curiae, then

"The permissibility of editorializing had briefly been placed in doubt

by the FCC's decision in Mayflower Broadcasting Corp., 8 F.C.C. 333,

339-41 (1940), which held that a broadcaster's advocacy of its own partisan

views to the exclusion of all others did not serve the public interest. Because

many viewed Mayflower as rejecting licensee editorializing, the FCC shortly

thereafter instituted a rulemaking and clarified that broadcaster editorial-

izing was not inconsistent with the public interest as long as an opportunity

was provided for the presentation of opposing viewpoints. /n re Edito-

rializing by Broadcast Licensees, 13 F.C.C. 1246 (1949).

“Attorney General Civiletti explained:

After careful consideration, we have concluded that Section {399}

violates the First Amendment guarantees of freedom of speech and

freedom of the press by restricting the ability of public broadcasting

stations to comment on matters of public interest. While not every

restriction on expression is necessarily unconstitutional, such restric-

tions must serve some compelling state interest. We have not been

a

obtained dismissal of the lawsuit for want of a justiciable contro-

versy. While an appeal from that decision was pending, the De-

partment of Justice under the new Administration reversed its po-

sition and announced that it would both enforce and defend the

challenged statute. The District Court therefore vacated its order of

dismissal and recalendared appellees’ motion for summary judg-

ment. Before argument could be heard, however, Congress amended

§ 399 to its present form, separating the prohibition against edito-

rializing from the ban on political endorsements and limiting its

scope to those stations that receive grants from CPB."’ Appellees

amended their complaint to reflect this change. challenging only

§ 399’s ban on public-issue editorializing.~°

able to identify any compelling governmental interest served by Sec-

tion [399] which would justify the statute's prior restraint on speech.

Furthermore, even if the Department of Justice could fashion an

argument that the statute serves a compelling government interest,

the statute would still be constitutionally defective on grounds of

overbreadth since public broadcasting stations receiving no federal

funds are covered. Finally, we have concluded that there are less

restrictive means to achieve the suggested purposes of the statute.

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

to support the laws enacted by Congress. Here, however, the De-

partment has determined, after careful study and deliberation, that

reasonable arguments cannot be advanced to defend the challenged

statute.

Letter from Attorney General Benjamin R. Civiletti to Senate Majority

Leader Robert C. Byrd, October 11, 1979 (J.A. 13-14).

"The current language of § 399 is sct out in Appendix A. The 1981

amendment was not, as the Government suggests, ‘‘of little practical sig-

nificance.’* Govt. Brief 26. It freed from § 399°s concededly unconsti-

tutional restrictions over 800 noncommercial stations that received no fed-

eral funds. See Letter from Atty. Gen. Smith to Sen. Thurmond (J.A. 15-

16). Of the 1374 noncommercial television and radio stations currently

broadcasting (FCC News Release, Broadcast Station Totals for June 1983

(June 16, 1983)), only 532 received CPB grants in 1981. CPB, Annual

Report 1981, at 4.

“Because the Government repeatedly refers to its purported interest in

preventing ‘‘electioneering’’ and *‘partisan’’ editorializing, it is worth em-

phasizing that the ban on political endorsements is not at issue here.

Appellee Pacifica does not contemplate endorsing candidates for political

office, and instead seeks only the freedom to express its views on issues

of public importance.

=_ =

On August 6, 1982, the District Court granted summary judg-

ment, declaring § 399's editorializing prohibition unconstitutional.

Finding that noncommercial broadcasters were entitled to the full

panoply of First Amendment protections, the court held that the

Government had failed to establish that § 399 was narrowly tailored

to serve a compelling interest. (J.S. App. 17a-18a.) In light of the

diverse funding sources of noncommercial stations, the safeguards

built into the system to ensure that noncommercial broadcasters

remain free of government control, and the fairness doctrine’s pro-

tection against one-sided presentation of controversial issues, the

court found no support for the asserted fear of government propa-

gandizing. (J.S. App. 12a-15a.) Sinilarly, the court concluded that

the alleged interest in fostering the balanced presentation of opinion

on CPB-funded stations was not sufficiently compelling to justify

§ 399's ban on protected speech. (J.S. App. 1Sa-17a.)

SUMMARY OF ARGUMENT

Section 399 categorically prohibits noncommercial broadcasters

that receive grants from CPB from expressing their views on public

issues. The statute violates fundamental First Amendment principles

by suppressing speech on the basis of its content. By its express

terms, § 399 discriminates among different types of speech and bars

expression of only one kind — opinions on issues of public im-

portance. Moreover, the statute prohibits only one class of speaker

— the CPB-subsidized noncommercial licensee — from commu-

nicating its views on these issues.

Section 399’s ban on editorializing strikes at the very heart of the

First Amendment. By prohibiting the broadcaster from expressing

its opinions on public issues, the statute muzzles one of the very

institutions that the Constitution selected to inform society and keep

it free. Section 399 not only denies the licensee the right to be heard,

but it infringes upon the paramount right of the public to receive

information from a diverse range of sources.

Nothing in the nature of broadcasting justifies anything but the

most stringent First Amendment scrutiny in assessing the consti-

tutionality of § 399. The central teaching of this Court's opinions

in the area of broadcast regulation is that the public's right to be

informed is best served by maximizing the number and diversity of

Viewpoints expressed over the airwaves. Section 399's censorship

of the broadcaster's editorial opinion has exactly the opposite intent

and effect. Nor does the ‘special character’’ of noncommercial

broadcasting require suppression of the licensee's views on public

issues. Indeed, as the FCC itself has long recognized, the station's

expression of its editorial opinion is an essential element in its ability

to fulfill what the Government itself asserts to be its intended societal

function: to educate, challenge, and at times disturb.

Because the CPB-funded noncommercial broadcaster's editorial

speech is fully protected by the Tirst Amendment, § 399 can be

upheld only if the Government demonstrates that it is the most

narrowly drawn restriction necessary to serve a compelling state

interest. Yet the two alternative justifications advanced by the Gov-

ernment are far from compelling, and the statute furthers those

purported objectives only marginally at best.

The asserted interest in preventing CPB-funded stations from

becoming outlets for the propagation of *‘private’’ viewpoints rests

on the erroneous premise that Congress ‘‘created’’ noncommercial

broadcasting and therefore can shape it in its own image by banning

the expression of any controversial views, But Congress did not

‘‘create’’ noncommercial broadcasting any more than it ‘‘created"’

the myriad other communicative enterprises that it subsidizes, from

the print media to commercial broadcasting. Moreover, there is no

basis for assuming that permitting noncommercial broadcasters to

editorialize will lead to the exploitation of their facilities for the

propagation of partisan ends. Further, § 399's ban on editorializing

bears no relevant correlation to its purported objective: on the one

hand, the statute suppresses editorials that cut across partisan lines

and pose no danger to the asserted interest; on the other hand, it

concededly permits partisan editorials by anyone other than the

licensee itself, and it does nothing to prevent bias from infusing any

other programming format.

Similarly, the purported interest in preventing noncommercial

broadcasting ‘rom becoming a vehicle for the dissemination of gov-

ernment propaganda is entirely speculative, and the editorializing

ban responds to that concern in an impermissible and irrational

manner. As the District Court found, CPB’s independent structure

and nondiscretionary grant-making procedures, the diversity of the

stations and their funding sources, and the fairness doctrine’s re-

a

quirement that coverage of public issues be balanced, combine to

ensure that the broadcasters will not be .ulnerable to any hypo-

thetical government attempt to influence their editorials. More fun-

damentally, to silence the broadcaster in order to eliminate the

theoretical possibility of government interference with the content

of its programming stands the First Amendment on its head. The

remedy for any feared imbalance in the marketplace of ideas is more

speech, not less speech. Finally, there is no rational relationship

between the asserted interest in preventing government propaganda

and § 399's ban on all licensee editorials, even those on local issues

having no bearing on the federal government.

Because § 399 applies selectively to only one type of broadcasting

facility and restricts the speech of only one speaker on one subject

matter, it also violates the First and Fifth Amendment guarantees

of Equal Protection, for none of the statute's discriminations is even

reasonably related to the purported interests behind its ban on ed-

itorializing. For example, editorializing by the licensee itself is

prohibited, while exactly the same opinions may be voiced by any-

one else the station lets on the air. If anything, however, these

individual opinions are more ‘‘private’’ than those of the noncom-

mercial licensee; and since the station is concededly free to select

who shall speak over its facility, there is no greater danger that the

licensee would espouse government propaganda than would its cho-

sen representative. Such irrational discriminations permeate § 399

and undermine the plausibility of the Government's alleged justi-

fications for the editorializing ban.

By requiring the noncommercial broadcaster to forfeit its right to

editorialize in order to receive a CPB grant, § 399 also violates the

principle that the government may not condition a public benefit on

the relinquishment of constitutional rights. Section 399s ban on

editorializing is very different from the limits on lobbying by tax-

exempt organizations upheld in Regan v. Taxation With Represen-

tation, 103 S.Ct. 1997 (1983). Section 399 does not merely provide

that Congress will not pay for the noncommercial broadcasters’

editorial speech; it flatly prohibits them from editorializing even

with their own private funds. Section 399 impermissibly forces the

=

noncommercial broadcaster to choose between retaining its right to

editorialize or receiving the CPB grant to which it is entitled for its

non-editorializing activities. The statute thus requires the broad-

caster to abandon a central element of its First Amendment rights

in order to receive its governmental benefit.

ARGUMENT

I. SECTION 399°S BLANKET SUPPRESSION OF THE NON-

COMMERCIAL BROADCASTERS’ EDITORIAL VOICE

VIOLATES THE FIRST AMENDMENT GUARANTEES OF

FREEDOM OF SPEECH AND FREEDOM OF THE PRESS.

Section 399 is a direct, government-imposed restraint on the non-

commercial broadcaster's freedom to express its views on issues of

public importance. The statute categorically proscribes speech oc-

cupying the “‘highest rung of the hierarchy of First Amendment

values.’* NAACP v. Claiborne Hardware Co., 102 S.Ct. 3409, 3426

(1982). Worse yet, § 399 selectively prohibits one class of speaker

— the CPB-subsidized noncommercial licensee — from commu-

nicating its opinions based solely on the content of that speech. See

First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-85

(1978) (‘‘Bellorti’*).*'

Accordingly, § 399°s ban on editorializing is presumptively un-

constitutional, and the burden rests squarely on the Government to

demonstrate that it is the most narrowly drawn regulation necessary

to further a compelling state interest. E.g., Citizens Against Rent

Control v. Berkeley, 454 U.S. 290, 294 (1981); Consolidated Edison

Co. v. Public Service Comm'n, 447 U.S. 530, 540 (1980). It is a

"The Government suggests that § 399 is not content-related because its

prohibition against editorializing is purportedly viewpoint-neutral. Govt.

Brief 41, 46. The identical argument was flatly rejected in Consolidated

Edison Co. v. Public Serv. Corom a, 447 U.S. 530 (1980), in which this

Court held unconstitutional a tate order barring utility companies from

including bill inserts that express ‘‘their opinions or viewpoints on con-

troversial issues of public policy.*’ /d. at 533. The Court there explained:

The First Amendment's hostility to content-based regulation extends

not only to restrictions on particular viewpoints, but also to prohi-

bition of public discussion of an entire topic.

Id. at $37-38. Accord, Carey v. Brown, 447 U.S. 455, 462 n.6 (1980);

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 518-19 (1981).

caine

burden that the Government cannot carry, for any legitimate interests

that § 399 allegedly serves are far from compelling, and its absolute

prohibition of editorializing is not the least restrictive means of

achieving those ends.

A. Section 399 Suppresses Speech That Is Entitled to the Fullest

Protection in Our Constitutional Framework.

1. The Noncommercial Broadcaster’s Editorial Opinions Lie at the

Very Heart of the First Amendment.

Preservation of the free flow of information has long been rec-

ognized as the core purpose of the First Amendment.” The vigorous,

open discussion of public issues plays a critical role in our repre-

sentative system of government. *‘[S}peech concerning public af-

fairs is more than self-expression; it is the essence of self-govern-

ment.’’ Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390

(1969) (**Red Lion’’) (quoting Garrison v. Louisiana, 379 U.S. 64,

74-75 (1964)). Yet it is precisely this ‘‘uninhibited, robust, and

wide-open’’ debate on public issues that § 399 restricts. See New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Moreover, in prohibiting the noncommercial broadcaster from

editorializing, § 399 silences one of the very institutions whose

freedom of speech ‘is a condition of a free society.’’ Associated

Press v. United States, 326 U.S. 1, 20 (1945); Bellotti, supra, 435

U.S. at 781. The media are the ‘‘eyes and ears’’ of the public,

seeking out the news, awakening interest in the conduct of govern-

ment, offering criticism and proposing changes, and engaging the

public in a ‘‘dialogue in ideas.’’ Nebraska Press Ass'n v. Stuart,

427 U.S. 539, 547 (1976); Grosjean v. American Press Co., 297

*E.g., Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940) (‘*The free-

dom of speech and of the press guaranteed by the Constitution embraces

at the least the liberty to discuss publicly and truthfully all matters of public

concern without previous restraint or fear of subsequent punishment’’),

Bellotti, supra, 435 U.S. at 776. The guarantees of freedom of speech and

of the press protect not only the individual's interest in self-expression,

but the societal interest in the attainment of truth. /d. at 777 n.12; Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980) (Brennan, J.,

concurring). 7

a

U.S. 233 (1936).”

Because the untrammeled freedom of the media to express its

views is so indispensable to its dual societal responsibilities as ed-

ucator and watchdog, this Court has not hesitated to strike down

any attempt to restrict what the media can say and what the public

can hear. Thus, in Mills v. Alabama, 384 U.S. 214 (1966), the

Court invalidated a law that, despite its benevolent purpose, had

the effect of prohibiting editorializing on the day of an election.

Concluding that it was ‘‘difficult to conceive of a more obvious and

flagrant abridgment of the constitutionally guaranteed freedom of

the press,’ the Court explained:

Suppression of the right of the press to praise or criticize

governmental agents and to clamor and contend for or against

change, which is all that this editorial did, muzzles one of the

very agencies the Framers of our Constitution thoughtfully and

deliberately selected to improve our society and keep it free.

384 U.S. at 219. See Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974).

Section 399 suffers from the same constitutional infirmities as

the statute in Mills. By denying the broadcaster the right to edito-

rialize, § 399 strips the station of one of its most effective means

of communicating with the public and contributing to the welfare

of the community. See E. Routt, Dimensions of Broadcast Edito-

rializing 9 (1974); Brief of Amici Curiae CBS, Inc., et al., at 3-5,

An editorial educates, explains, and often moves the public to action.

It is the vehicle by which the broadcaster can offer the product of

its study and suggest alternatives to current policies. Because it

represents the considered opinion of a respected institution, the

station's viewpoint deserves and receives high regard from the au-

dience. In addition, editorial opinion frequently provokes a re-

sponse, thereby creating a two-way flow of information that draws

“Indeed, it has been suggested that the Framers intended the press to

be a fourth institution outside the government, serving as a check on the

three official branches, and that the press clause was specifically included

in the Constitution to ensure that the government could not ‘‘convert the

communications media into a neutral ‘market place of ideas.’ '’ See Stewart,

Or of the Press,’ 26 Hastings '..J. 631, 636 (1975). Yet this is what

the Government has attempted to do under § 399.

pas

citizens into the acti, > affairs of their government. See Fang &

Whelan, Survey of Television Editorials and Ombudsman Segments,

17 J. Broadcasting 363, 370 (1973).”

Thus, contrary to the very premise of the Government's argument

— that editorializing is somehow incompatible with the ‘‘public

mission’’ of noncommercial broadcasting — the freedom to express

its institutional views on public issues is essential to the noncom-

mercial station’s ability to fulfill its intended societal function: *‘to

educate, broaden, challenge, enlighten, and at times disturb.’’ Govt.

Brief 15.*° Indeed, the importance of the broadcaster's editorial

opinion has long been acknowledged by the FCC itself, *‘the expert

body which Congre.. has charged to carry out its legislative policy.”’

“In particular, editorializing by noncommercial broadcasters would pro-

mote their value in providing *‘a diversity of educational, cultural, and

public affairs programming that commercial stations had failed to furnish.’’

Govt. Brief 15. Because the noncommercial station often serves a different

audience than the commercial station, its editorials are likely to address

issues that are of concern to its unique constituency, issues that may not

be fully discussed over the commercial airwaves. See Brief of Amicus

Curiae National Black Media Coalition, at 10-11. Section 399’s restraint

has therefore impeded noncommercial broadcasting’s efforts to assume the

role envisioned for it. As the Carnegie Commission concluded in its review

of noncommercial broadcasting as it entered the 1980s:

[T}here is one objective that public broadcasting must locate at its

center of its activity if it is ever to be considered a mature voice in

society. Public broadcasting must have a strong editorial purpose.

Without this strong editorial purpose expressed in diverse, even

controversial ways, and without an ability to construct a context for

understanding the events that occur around us and the meaning of

history, public broadcasting will never be taken seriously.

Carnegie Il, at 29-30 (emphasis in original).

*The Government consistently attempts to mischaracterize responsible

broadcast editorializing as the ‘‘exploitation’’ of station facilities ‘*to prop-

agate partisan ideological ends.’’ See, e.g., Govt. Brief 33-35. As ex-

plained more fully below, this misrepresentation of the noncominercial

broadcaster's editorial opinion is wholly at odds with history, reality, FCC

policy, and fundamental First Amendment values.

= =

FCC vy. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940).”

In its comprehensive review of editorializing by commercial and

noncommercial broadcasters, the Commission concluded that ‘“‘the

expression of editorial opinions by broadcast station licensees on

matters of public interest and controversy is consistent with their

obligations to operate their stations in the public interest.’’ Edito-

rializing Report, supra, 13 F.C.C. at 1246. One Commissioner even

noted that ** governmental prohibition of editorialization by licensees

. . constitutes an unconstitutional abridgment of free speech.”’ Id.

at 1262 (separate views of Commissioner Jones). Therefore, for the

past thirty-five years, the FCC has actively encouraged licensee

editorializing.*” In fact, while the Government was preparing its

brief to this Court, the FCC was reiterating that ‘‘licensee edito-

rializing should be encouraged and is no more subject to abuse than

other controversial issue programming.’* Notice of Proposed Rule

*This Court's decisions ‘have repeatedly emphasized that the Com-

mission's judgment regarding how the public interest is best served is

entitled to substantial judicial deference.’’ FCC v. WNCN Listeners Guild,

450 U.S. 582, 596 (1981). Consequently, it is significant that the FCC is

only the nominal appellant in this lawsuit. Tie FCC informed the District

Court that *‘no position is taken by the Commission on the constitutional

question presented in this case,"’ specifically noting that **|t)he arguments

advanced [by the Justice Department] in defense of Congress’ constitutional

power to enact § 399 do not necessarily reflect the positions taken by the

Commission in other areas of policy not mandated by § 399."’ Defendant's

Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion

for Summary Judgment |-2 n*.

"For example, in its 1960 Programming Statement, the Commission

included ‘‘editorialization by licensees’’ as one of the fourteen **major

elements usually necessary to meet the public interest, needs and desires

of the community."’ 25 Fed. Reg. 7295. The FCC enforces this policy by

taking the broadcaster's editorializing practices into account in license

renewal proceedings. E.g., Greater Boston Television Corp. v. FCC, 444

F.2d 841, 860 (D.C. Cir. 1970) (**There is a public interest in diversity

in policy areas lit by the lantern of editorial probes.’’); RKO General, Inc.,

44 F.C.C.2d 149, 219 (1969) (°*The [licensee's] policy of not presenting

editorials runs squarely athwart Commission policy. The Commission as-

sesses demerits for failure to editorialize.’*); Miners Broadcasting Service,

Inc., 20 F.C.C.2d 1061, 1061-62 (1970); Evening Star Broadcasting Co.,

27 F.C.C.2d 316, 332 (1971).

a Se

Making In re Repeal or Modification of the Personal Attack and

Political Editorial Rules, F.C.C. Gen. Docket No. 83-484, at 17

(adopted May 12, 1983) (°'/983 Proposed Rulemaking’’).

In sum, § 399 outlaws exactly that speech to which the First

Amendment gives the greatest protection, for it not only abridges

the licensee's right to express its views on important public issues

— a freedom *‘indispensable to the discovery and spread of political

truth’ (Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis,

J., concurring)) — but it also infringes upon ‘‘the right of the public

to receive suitable access to social, political, esthetic, moral, and

other ideas and experiences.’’ Red Lion, supra, 395 U.S. at 390.

Section 399 stifles the noncommercial broadcaster's editorial voice

not just on election day, but each and every day. Its constant and

categorical prohibition cannot be reconciled with the guarantees of

freedom of speech and tiie press.

2. The ‘‘Special Character’’ of Broadcasting Mandates the Max-

imization of the Number and Diversity of Editorial Viewpoints,

Not Their Suppression.

There can be no doubt that broadcasting falls within the First

Amendment's protection against governmental abridgment of free-

dom of speech and the press. See, e.g. United States v. Paramount

Pictures, Inc., 334 U.S. 131, 166 (1948); CBS, Inc. v. Democratic

National Committee, 412 U.S. 94, 133 (1973) (*CBS v. DNC’)

(Stewart, J., concurring) (‘Private broadcasters are surely part of

the press."’). Television and radio are today the primary source of

news and opinion for the majority of Americans. /983 Yearbook

A-2. *‘In terms of the role of free speech in the functioning of a

system of self-government, radio and television broadcasting have

taken the place of the stump and the soap box in 1791."’ Kalven,

Broadcasting, Public Policy and the First Amendment, 10 J. L. &

Econ. 15, 15 (1967).

To be sure, each medium of expression presents somewhat dif-

ferent First Amendment problems. Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 503 (1952). But as the District Court expressly found,

nothing in the ‘‘special character’’ of noncommercial broadcasting

**justiflies} the application of less stringent First Amendment stan-

dards in the present case."’ J.S. App. 10a-1 1a. In fact, this Court’s

decisions make clear that the government's ‘‘refusal to permit the

broadcaster to carry a particular program or to publish his own views

a

. . . would raise . . . serious First Amendment issues."’ Red Lion,

supra, 395 U.S. at 396.

The unifying principle in the area of broadcast regulation is that

structural limitations of the medium (e.g., spectrum scarcity) may

justify restricting the rights of licensees in order to preserve the

**paramount”’ rights of viewers and listeners. /d. at 390. But never

has this Court suggested that such a rationale could sustain a reg-

ulation preventing the broadcaster from airing its own opinions. The

First Amendment has always been invoked in the broadcasting con-

text to expand the number and diversity of views expressed over

the airwaves, not to limit the speakers and issues that may be dis-

cussed. See id. at 390-91; CBS, Inc. v. FCC, 453 U.S. 367, 395-

96 (1981). The fairness doctrine regulations were upheld in Red

Lion precisely because they were found to ‘‘enhance rather than

abridge the freedoms of speech and press’’ by promoting *‘the First

Amendment goal of producing an informed public capable of con-

ducting its own affairs.’’ 395 U.S. at 375, 392. Section 399’s

censorship of editorial opinion has exactly the opposite intent and

effect.

Furthermore, even when this Court has upheld government reg-

ulation deemed necessary to ‘‘preserve an uninhibited marketplace

of ideas’’ (id. at 390), it has always emphasized that ‘‘the broad-

casting industry is entitled under the First Amendment to exercise

‘the widest journalistic freedom consistent with its public [du-

ties].’ *’ CBS, Inc. v. FCC, supra, 453 U.S. at 395 (quoting CBS

v. DNC, supra, 412 U.S. at 110). For example, in Red Lion, the

Court specifically noted that there was ‘‘no question here’’ of **gov-

ernment censorship’’ or ‘‘refusal to permit the broadcaster . . . to

publish his own views.’* 395 U.S. at 396. Similarly, in upholding

a limited access requirement in CBS, Inc. v. FCC, supra, the Court

stressed that it ‘‘does not impair the discretion of broadcasters to

present their views on any issue or to carry any particular type of

programming.’’ 453 U.S. at 397. Accord, CBS v. DNC, supra, 412

U.S. at 121, 124 (obligation to accept editorial advertisements would

be inconsistent with our system of ‘‘private, independent broadcast

journalism”’ and would lead to *‘erosion of the journalistic discretion

of broadcasters in the coverage of public issues’’); see also FCC v.

Midwest Video Corp., 440 U.S. 689, 705 n.14 (1979).

, “oe

In sum, the Government's unsupported assertion that *‘this Court

has sustained important restrictions upon the right of all broadcasters

to editorialize’’ (Govt. Brief 31) could not be further from the truth.

Rather, ‘‘[The First Amendment] rests on the assumption that the

widest possible dissemination of information from diverse and an-

tagonistic sources is essential to the welfare of the public.’’ Asso-

ciated Press v. United States, supra, 326 U.S. at 20. That objective

is achieved by maximizing the number of voices heard over the air,

not by silencing those who do have access to the microphone.”

B. There Are No Compelling Government Interests to Justify

Section 399’s Restraint on Free Expression.

Because the noncommercial broadcaster's editorial speech is en-

titled to the full panoply of First Amendment protections, the Gov-

ernment must show that § 399’s ban on editorializing is necessary

to serve a compelling state interest and is narrowly drawn to achieve

that end. Carey v. Brown, 447 U.S. 455, 461 (1980). *‘Especially

where, as here, a prohibition is directed at speech itself, and the

speech is intimately related to the process of governing, ‘the State

may prevail only upon showing a subordinating interest which is

compelling,’ . . . ‘and the burden is on the government to show the

existence of such an interest.’ ’’ Bellotti, supra, 435 U.S. at 786.

The Government has offered two alternative justifications for the

statute, but they are far from compelling.” Indeed, the structure

“In any event, the ‘‘special character’’ of broadcasting cannot justify

§ 399, which prohibits editorial comment only by noncommercial licensees

and does not apply to commercial broadcasters. *‘Certainly spectrum scar-

city cannot be invoked to support a government attempt to penalize or

suppress speech, based on its general content, by some, but not all, broad-

cast licensees; scarcity hardly serves as a convincing justification where

only some licensees are subject to regulation.’’ Community-Service Broad-

casting, supra, 593 F.2d at 1111 n.21.

*T: e Government has apparently conceded that the concerns to which

§ 399 is allegedly addressed are not compelling. Having been unable to

persuade the District Court that those asserted interests are compelling,

the Government now argues that they are only ‘‘important.’’ Govt. Brief

21, 34, 35, 39. Thus, if the Court agrees that the broadcaster's editorial

opinions are entitled (o traditional First Amendment protections, the de-

cision below must be affirmed.

a

and legislative history of § 399 suggest that the statute was enacted

not to further any compelling government interest, but to further an

illegitimate congressional self-interest in suppressing potentially

critical editorial comment.

1. The Articulated Congressional Desire to Suppress Critical

Editorial Comment Is Not a Legitimate Government Interest.

The fundamental principle in First Amendment law is that the

government has no legitimate interest in limiting the free flow of

information. Thus, ‘when regulation is based on the content of

speech, governmental action must be scrutinized more carefully to

ensure that communication has not been prohibited ‘merely because

public officials disapprove the speaker's views.’ ’’ Consolidated

Edison Co. v. Public Service Comm'n, supra, 447 U.S. at 536

(quoting Niemorko v. Maryland, 340 U.S. 268, 282 (1951) (Frank-

furter, J., concurring in result)). See Minneapolis Star & Tribune

Co. v. Minnesota, 103 S.Ct. 1365 (1983).”°

Examination of the legislative history of § 399 in accordance with

this directive reveals that the statute may well have been enacted

for an illegitimate purpose, for the only rationale articulated by those

considering the provision indicates that it was intended to prevent

noncommercial broadcasters from being able to criticize congres-

sional policies and officials. in their editorials. The editorializing

ban was inserted by the House Committee ‘*{o]ut of abundance of

caution’ (H.R. Rep. No. 572, 90th Cong., Ist Sess. 20 (1967)),

despite the acknowledgment by its sponsor that ‘‘anyone who has

had any experience in the past 6 years knows there has not been

the slightest control of any kind exercised by the Federal Govern-

ment in making grants... . .’’ 113 Cong. Rec. 26407 (remarks of

“This Court has been especially wary of any governmental interference

in the editorial process, even when the intent behind legislation restricting

freedom of the press appears benign. See Miami Herald Publishing Co.

v. Tornillo, supra, 418 U.S. at 259 (White, J., concurring); Mills v.

Alabama, supra.

as

Rep. Springer).*’ What there had been, however, were some Con-

gressmen who were upset by noncommercial broadcasts that they

viewed as potentially damaging politically. Certainly, Representa-

tive Springer was quite explicit about why he wanted to add § 399:

he didn’t like commercial broadcasters taking positions on candi-

dates, and he wanted to ‘‘close this loophole’’ that could permit

noncommercial stations ‘o emulate their commercial counterparts.

113 Cong. Rec. 26387-8%. Similar fears of criticism were voiced

by his colleagues in the House.”

*'The House Committee Report incorrectly observed that ‘‘considerable

testimony’’ had been heard that no educational stations editorialized. In

fact, the Committee had heard from several witnesses who stated that

noncommercial stations had editoriaiized in the past and thought it im-

portant that they continue to do so. E g., House Hearings at 404 (Utah

Gov. Rampton); id. at 97 (HEW Secy. Cardner). The witnesses (including

the NAEB president cited in the Govi. Brief at 24) did say that noncom-

mercial broadcasters did not intend to invol\e themselves in partisan issues

such as candidate elections. See, e.g., id. at 97, 513. It is odd, therefore,

that the Government brief repeatedly refers to * vartisan’’ *‘electioneering”’

as the evil to be feared, inasmuch as the licensees do not wish to engage

in such activities and § 399’s provision on candidste endorsements would

fully protect against such concerns.

*E.g., 113 Cong. Rec. 26391 (Rep. Keith: ‘‘It is conceivable that [a

certain noncommercial television broadcast] could . . . have adversely

affected my candidacy for re-election.”’); id. (Rep. Joelson: **Those of us

in public office are in a position where newspapers, radio, or FV stations

can say anything they wish about us. . . . Therefore, the right uf edito-

rializing should be very, very carefully scrutinized."’); id. at 26399 (Rep.

McClure: **Witnesses before the committee not only saw public television

as a force for social good, but said it should and will crusade. Crusade

for what? I suppose that by the time | have finished this speech, it might

well be a crusade for my opponent in next year’s election.*’); id. at 26389

(Rep. Devine: **I understand that there is one educational TV station out

on the west coast that a bunch of ‘hippies’ are running. Someone has

suggested that it woud indeed be amazing to hear the type of analysis

they are making. . . . This is one of the areas in which we have had to

work very hard in order to try to provide some safeguards.”’).

Dean W. Coston, then Deputy Undersecretary of HEW and primary

drafter of the original legislation, candidly acknowledged the motivation

behind the addition of § 399:

=< =

Additional evidence that § 399 was not a response to legitimate

concerns over the possible effects of federal funding stems from the

fact that when enacted, and until its amendment fourteen years later

in response to this lawsuit, the prohibition applied to hundreds of

noncommercial broadcasters that received absolutely no federal aid.

See note 19, supra. Contrary to the Government's contention, Con-

gress was certainly aware that not all noncommercial broadcasters

would be receiving CPB funds.” Furthermore, other provisions of

the Act were directed not toward all noncommercial broadcasting

Stations, as was § 399, but only toward ‘‘each recipient of [CPB]

assistance,’’ thereby indicating both that Congress recognized that

not all stations would be receiving CPB grants, and that it knew

how to limit a restriction when it wanted to. See, e.g., 47 U.S.C.

§ 396(1)(3)(A), as enacted, Pub. L. No. 90-129, 81 Stat. 365 (now

§ 396(1)(3)(C)) (recordkeeping and audit requirements for recipients

of CPB grants).

It thus appears that § 399 was not the product of careful consid-

eration of the imminent dangers posed by licensee editorializing (cf.

I don’t know where you are going to get good public policy edito-

rializing if you can’t get it at the public sector. You certainly aren't

going to get it out of the commercial networks, nor do you get it

out of very many local commercial stations. So | think that was a

mistake, and | told Springer that I thought it was a mistake. I un-

derstand his point of view, and | understand his fears that this system

could be used to unseat certain members of Congress.

J. Burke, An Historical-Analytical Study of the Legislative and Political

Origins of the Public Broadcasting Act of 1967, at 209 (1972) (dissertation

published by University Microfilms).

“For example, the Senate Report acknowledges that some 183 noncom-

mercial television and 346 radio stations were then broadcasting (S. Rep.

No. 222, 90th Cong., Ist Sess. 2-3 (1967)), yet CPB’s annual reports

clearly reflect that only a fraction of those stations were receiving grants.

See, e.g., CPB, Public Broadcasting 1969, at 17, 21 (of the more than

425 noncommercial radio stations, only 73 stations and 15 satellite stations

qualified for support); CPB, Developing a National Resource: Annual

Report 1970 (*‘the limited resources of the Corporation prevent offering

a support grant program to all radio licensees’’). In fact, the first CPB

grant to a station (either TV or radio) was not made until 1969, two years

after the ban on editorializing was enacted. **Public Broadcasting: The

First 10 Years,’ 8 CPB Reports No. 24, at 2 (1977).

=

Fullilove v. Klutznick, 448 U.S. 448, 549-52 (1980) (Stevens, J.,

dissenting)), but was instead a last-minute political compromise

designed to win the support of reluctant Congressmen who may

have feared potential criticism from noncommercial broadcasters.

As one commentator concluded after reviewing the Act's legislative

history: ‘*[T]he purpose of Section 399 was clear: to prevent Con-

gress from creating a monster that might someday turn on its creator.

Therefore, to achieve its own self-protective ends Congress simply

legislated away a significant part of educational broadcasters’ right

of free speech.’’™

2. The Interests Asserted by the Government Cannot Justify Section

399’s Ban on Editorializing.

The Government does not contend that it would be permissible

for Congress to have enacted § 399 in order to suppress potential

criticism. Instead, the Government offers two contradictory justi-

fications for the prohibition against editorializing, arguing on the

one hand, that § 399 is needed to prevent the exploitation of non-

commercial stations for the propagation of ‘‘private’’ and ‘‘parti-

san’’ viewpoints, and alternatively, that the statute is needed to

prevent the propagation of ‘‘government’’ propaganda. These al-

leged concerns are entirely speculative, however, finding no support

in the record or reality, and they cannot therefore justify § 399's

wholesale abridgment of free speech. ‘‘Mere speculation of harm

does not constitute a compelling state interest.’ Consolidated Edi-

son Co. v. Public Service Comm'n, supra, 447 U.S. at 543.

a. The Alleged Interest in Preventing CPB-Funded Stations From

Propagating Their ‘‘Private’’ Viewpoints Is Neither Legiti-

mate Nor Compelling.

The first interest advanced by the Government is that § 399 is

necessary to ensure that noncommercial stations not be exploited

for the propagation of ‘‘private’’ and ‘‘partisan’’ viewpoints. Ac-

“Toohey, Section 399: The Constitution Giveth and Congress Taketh

Away, 6 Educ. Broadcasting Rev. 31, 34 (1972). The manifest unconsti-

tutionality and troubling legislative history of § 399 have not escaped the

attention of courts and other commentators. See, ¢.g., Community-Service

Broadcasting, supra, 593 F.2d at 1128 n.25 (Robinson, J., concurring);

Lindsey, Public Broadcasting: Editorial Restraints and the First Amend-

—

cording to this rationale, Congress supposedly intended to create

and finance a ‘‘special broadcasting system’’ devoted to ‘‘public,

not private, purposes.'’ Permitting noncommercial broadcasters to

editorialize, it is claimed, would seriously interfere with this *‘ public

mission,’ for the stations would become ‘‘inviting target|s) for

capture by private interest groups’’ who would then use them ‘‘to

propagate partisan ideological ends.’’** Not only is this purported

justification based on pure speculation, but it wrongly assumes that

government has a legitimate interest in prohibiting CPB-funded li-

censees from expressing their *‘private’’ views.

1. The Government's argument proceeds from the erroneous

premise that because Congress ‘‘created’’ noncommercial broad-

casting, it may therefore impose whatever restrictions it deems nec-

essary to ensure that the stations remain true to their ‘‘public mis-

sion."’ But Congress did not *‘create’’ noncommercial broadcasting

any more than it ‘‘created’’ commercial broadcasting. Noncom-

mercial broadcasting existed before the government ever began to

regulate the broadcast spectrum, and it endured and flourished for

almost fifty years without a penny of federal aid. Even today, the

federal contribution amounts to barely one-fifth of noncommercial

broadcasting’s income and is less than half the sum raised from

ment, 28 Fed. Com. B.J. 63, 81 (1975); Note, The Public Broadcasting

Act: The Licensee Editorializing Ban and the First Amendment, 13 U.

Mich. J. of Law Reform 541, 548-49 (1980).

“Govt. Brief 33-35. To the extent there was any meaningful consid-

eration given to § 399, nothing articulated in the legislative history supports

the proposition that the statute was thought necessary to prevent the prop-

agation of ‘‘private’’ views with taxpayer funds. Rather, this argument

appears to have been ‘‘fashioned’’ by Government attorneys seeking a

legitimate justification for § 399. See Letter from Atty. Gen. Civiletti to

Sen. Byrd, quoted in note 18, supra. A rationale that trails its implementing

legislation cannot be deemed compelling. See Talley v. California, 362

U.S. 60, 64 (1960). Indeed, the Government apparently did not consider

this alleged interest important enough to mention in attempting to defend

the statute in the District Court. The failure to have raised this argument

below is reason enough for this Court not to consider it (see Dothard v.

Rawlinson, 433 U.S. 323 n.1 (1977)), but in light of Congress’ failure to

have mentioned it either, this purported rationale surely cannot justify

§ 399’s ban on editorializing.

aT

wholly private, non-governmental sources.”

More important, the fact that the federal government now helps

to fund noncommercial broadcasting does not alter the essential

character of the medium as ‘‘a system of private broadcasters li-

censed and regulated by Government”’ in which ‘‘broad journalistic

discretion’’ in the discussion of public issues is left with the licensee.

CBS v. DNC, supra, 412 U.S. at 116, 105 (opinion of Burger,

C.J.); FCC v. Midwest Video Corp., 440 U.S. 689, 703 (1979).

Noncommercial broadcasting is not a domestic Voice of America.

Rather, it is simply a category comprising the over 1400 indepen-

dently operated broadcasting stations that are licensed to nonprofit

educational organizations.’’ The noncommercial broadcaster has as

great a right to express its ‘‘private’’ viewpoints as its commercial

counterpart has.

In fact, CPB grants to noncommercial broadcasters are but the

tip of the iceberg of the federal government's subsidization of com-

*CPB, Public Broadcasting Income: FY 1982 (Preliminary) (July 1983)

(CPB expenditures accounted for 20.5% of noncommercial broadcasting's

FY 1982 income; private sources supplied 40.9%). Moreover, only about

half of CPB’s contribution goes directly to noncommercial stations. See

CPB, Annual Report 1981], at 7-8 (only $96.1 million of CPB's 1981

appropriation of $162 million was distributed in operating grants to sta-

tions). Some stations, like KSJN-AM in St. Paul, Minnesota, receive as

little as $2,560 per year from CPB. /d. at 42.

The Government repeatedly attempts to overstate the federal contribution

by misleadingly merging all federal, state, and local tax-based assistance

into a single *‘government’’ category and citing only to those combined

data. See generally Brief of Amici Curiae PBS and NAPTS, at 11-15.

"See 47 C.F.R. § 73.621. It bears repeating that none of these 1400

Stations is owned or operated by the federal government. The majority of

CPB recipients are private, community-based educational corporations.

Most of the others are licensed either to private colleges and universities

or to publicly supported educational institutions. See CPB, /982 Public

Broadcasting Directory, at 18-50, 66-68 (in 1981, 319 (82%) of the 338

licensees receiving CPB grants were operated by private nonprofit edu-

cational foundations or institutions of higher learning). Even if the publicly

supported stations could be considered ** government-owned, "’ despite their

being operated by independent boards and commissions, there is no basis

for attributing the local and state involvement to the federal government,

as the Government's brief attempts to do.

= =

municative activities in this country. Virtually every medium is

infused with some form of direct or indirect support: Newspapers

and periodicals receive substantial postal subsidies (see Buckley v.

Valeo, 424 U.S. 1, 93 n.127 (1976)); commercial broadcasters

receive the value of their license (see Community-Service Broad-

casting, supra, 593 F.2d at 1120 n.43); all media receive significant

Subsidies in tax benefits and sizeable revenues from government

advertising. Congress today funds everything from education to

elections, from parks to playhouses. If the existence of such support

were deemed sufficient to justify restrictiny the recipients’ freedom

of speech, the First Amendment would soon become meaningless.”

“See CBS v. DNC, supra, 412 U.S. at 174 n.5 (Brennan, J., dissenting)

(license represents government subsidization of broadcasting); Gottfried v.

FCC, 655 F.2d 297, 312 & n.55(D.C. Cir. 1981) (license is **a commodity

of great value’’), rev'd on other grounds sub nom. Community Television

of Southern California v. Gottfried, \03 S.Ct. 885 (1983). See generally

Shiffrin, Government Speech, 27 U.C.L.A. L. Rev. 565, 624 n.279 (1980):

**The limited funds granted to public broadcasting stations are paltry com-

pared to the economic value of the spectrum given to many if not most

commercial broadcasters.'’ For example, a VHF station license recently

solé for $220 million. See Govt. Brief 29 n.59. In contrast, the entire CPB

appropriation for the preceding year was only $162 million. CPB, Annual

Report 198], at 4. The value of the federal postal subsidy is likewise

enormous. See Hannegan v. Esquire, 327 U.S. 146, 151 0.7 (1946) (sub-

sidy to Esquire Magazine estimated to be $500,000 a year in 1946). And

the amount of federal money disbursed to the media through government

advertising totalled over $189 million in 1981, almost twice the sum dis-

tributed directly to noncommercial stations by CPB. Advertising Age, Sept.

9, 1982, at 177.

“To take but one example of the far-reaching implications of appellant's

argument, the Government specifically analogizes support for noncom-

mercial broadcasting to that provided to many schools and universities,

contending that for both enterprises, involvement in ‘‘partisan ideological

controversies’’ would endanger the success of their mission. Govt. Brief

34-35. The Government obviously believes, therefore — and it follows

from the illogic of its argument — that it could impose a restriction similar

to § 399 on any university that received federal assistance (as virtually all

do), prohibiting that school from expressing its institutional Views on public

issues. As a result, such institutions would be barred from offering their

respected opinions to this Court as amici curiae in cases involving important

(footnote continued on following page)

ae

Courts have therefore rejected any argument that government

subsidization of expression provides a legitimate rationale for in-

terfering with its content. For example, government efforts to limit

the editorial discretion of state-subsidized publications have uni-

formly been rebuffed on First Amendment grounds.” This Court,

too, has repeatedly held that even though the government may not

have been obligated to create or support a forum for communication

in the first instance, once it has chosen to do so, any restrictions

imposed must conform to traditional First Amendment standards.

E.g., Widmar v. Vincent, 454 U.S. 263, 267 (1981); Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-58 (1975).*'

issues, even those that might uniquely affect the schools themselves. C/.,

e.g., Bakke v. Regents of California, 438 U.S, 265, 316-17 (1978) (opinion

of Powell, J.) (referring with approval to minority recruitment program

implemented by Harvard College and described in its amicus curiae brief).

It is ironic that amicus curiae Mobil Corporation argues that noncom-

mercial broadcasters should not have the right to use tax dollars to express

their views on public issues. The oil industry, of course, is one of the most

heavily subsidized in this country; the oil depletion allowance alone has

an estimated value of $3 billion in FY 1984. OMB, Budget of the U.S.

Government, FY 1984, at 5-38. Yet as its participation in this case dem-

onstrates, and as anyone who reads the local newspapers is aware, Mobil

freely propagates its ‘‘private’’ views with the support of these taxpayer

funds.

“See, e.g., Gambino v. Fairfax County School Bd., 564 F.2d 157 (4th

Cir. 1977), aff g per curiam, 429 F.Supp. 731 (E.D. Va. 1978); Schiff v.

Williams, 519 F.2d 257, 260-61 (Sth Cir. 1975); Bazaar v. Fortune, 476

F.2d 570, 574 (Sth Cir.), aff'd as modified en banc, 489 F.2d 225 (Sth

Cir. 1973), cert. denied, 416 U.S. 995 (1974); Joyner v. Whiting, 477

F.2d 456 (4th Cir. 1973). The prohibition against content interference

exists even where, unlike here, the government wholly funds an activity.

See, e.g., Antonelli v. Hammond, 308 F.Supp. 1329, 1337 (D. Mass.

1970).

“As the Court of Appeals for the D.C. Circuit concluded in rejecting

the very contention made by the Government in this case:

{Njoncommercial licensees are fully protected by the First Amend-

ment. Clearly, the existence of public support does not render the

licensees vulnerable to interference by the federal government with-

out regard to or restraint by the First Amendment.

Community-Service Broadcasting, supra, 593 F.2d at 1110.

‘nonin

Thus, there is no legitimate government interest in prohibiting

noncommercial broadcasters from expressing their ‘‘private’’ views

in order to preserve the medium for its intended *‘mission.’’ In fact,

as discussed above, the licensee’s expression of its ‘‘private’’ ed-

itorial opinions is perfectly compatible with its intended societal

function. Nor is there any legitimacy to the assertion that subsidizing

the noncommercial licensee’s editorial speech could lead to consti-

tutional problems.*’ As this Court held in Buckley v. Valeo, supra,

when financial assistance is provided not to abridge, but to facilitate

the exercise of free speech, the funding of private political views

does not violate the First Amendment rights of taxpayers who might

disagree with those views. See 424 U.S. at 90-93. Indeed, Buckley

specifically adverted to the subsidization of noncommercial broad-

casting as an example of an attempt to enhance First Amendment

values by promoting *‘a society in which ‘uninhibited, robust, and

wide-open’ public debate concerning matters of public interest would

thrive."’ /d. at 93 n.127 (citation omitted).*’

“Since § 399 prohibits noncommercial stations from editorializing even

with nongovernmental funds, the Government's attempt to justify the stat-

ute as necessary to guard against the use of public funds to pay for the

licensee's expression of its *‘private’’ views can readily be dismissed. See

also pp. 45-47, infra. More fundamentally, all views expressed on broad-

cast stations are ‘‘private.’’ A licensee can do nothing but air an aggregate

of ‘‘private’’ voices, and if taxpayers’ dollars help fund the broadcasting

entity, they inevitably aid in the expression of those ‘‘private’’ views. The

voice of the licensee itself, then, is but one of many such voices, and there

is no justification under this rationale for singling it out for exclusion.

“The Government's reliance on Abood v. Detroit Board of Education,

431 U.S. 209 (1977), is misplaced, for that case held only that an individual

could not be required *‘to contribute to the support of an ideological cause

he may oppose as a condition of holding a job as a public school teacher.”’

Id. at 235. It is quite different to assert that the government may not

support an endeavor with which some taxpayers may disagree. As this

Court noted in Buckley v. Valeo, supra, every Congressional appropriation

uses public money in a manner to which some taxpayers object. 424 U.S.

at 90-92. Furthermore, it is a giant leap from the remedy applied in Abood,

which did not infringe on anyone's right of free expression, to § 399’s

suppression of the broadcaster's editorial opinions. See Bellotti, supra,

435 U.S. at 794 n.34.

= =

2. In addition, there is no basis for believing that if noncom-

mercial stations were permitted to editorialize, they would be used

for the propagation of ‘partisan ideological ends.’ Noncommercial

broadcasters had been on the air for nearly fifty years before § 399

was enacted, without a single recorded instance of a station being

‘‘captured’’ by private, ideological interests. For at least forty of

those years, noncommercial broadcasters had been allowed to ed-

itorialize, and since 1962, they had been receiving federal funds

while doing so — all without any hint of a station’s exploitation

for partisan ends. And there was no reason to think that an increase

in federal aid to noncommercial broadcasting would somehow sud-

denly change things. In short, the alleged fear that permitting non-

commercial broadcasters to express their ‘‘private’’ opinions would

lead to the propagation of ‘‘partisan ideological ends’’ is simply

made out of whole cloth. Cf. Bellotti, supra, 435 U.S. at 789 (‘‘If

appellee’s arguments were supported by record or legislative find-

ings that corporate advocacy threatened imminently to undermine

democratic processes, . . . these arguments would merit our con-

sideration. . . . But there has been no [such] showing’’) (citation

omitted).

Further, even were it inclined to do so, a noncommercial broad-

caster could not use its station to propagate its own narrow view-

point. The Government conveniently ignores any mention of the

“lronically, noncommercial licensees are uniquely accountable to pub-

lic, rather than private, interests, and are the least likely to be ‘*captured’’

by narrow, private-interest groups. Not only must they serve the ‘‘public

interest, convenience, and necessity’’ as a condition of obtaining and

retaining their license (47 U.S.C. § 309), but they must satisfy additional

requirements designed to promote public accountability. For example,

noncommercial stations not affiliated with governmental entities must es-

tablish and consult with ‘‘community advisory boards’’ that review their

programming policies to ensure that the diverse needs and interests of the

community are being represented. 47 U.S.C. § 396(k)(9). Moreover, un-

like commercial broadcasters, noncommercial licensees are by the very

nature of their ownership ultimately responsible to some entity that rep-

resents the public. And because noncommercial broadcasters depend so

heavily upon the public for financial assistance and volunteer services,

they are not likely to alienate that public support by using the stations to

pursue their own ideological ends.

th cm

fairness doctrine, which — applicable to commercial and noncom-

mercial stations alike (see Accuracy in Media, Inc. v. FCC, 521

F.2d 288, 295 (D.C. Cir. 1975)) — mandates a balanced and fair

presentation of all controversial issues, thereby ensuring that the

broadcaster cannot present only one side of any issue. See Red Lion,

supra, 395 U.S. at 379-86; Editorializing Report, supra, 13 F.C.C.

at 1252-53.*° Thus, the fear of noncommercial broadcasting stations

being used for the propagation of the partisan ideological ends of

its management is entirely speculative, and § 399’s prohibition against

editorializing cannot be justified under this rationale. See McDaniel

v. Paty, 435 U.S. 618, 628 (1978).

b. The Alleged Interest in Preventing CPB-Funded Stations From

Becoming Government Propaganda Organs Is Far From

Compelling.

The second interest asserted by the Government is that § 399 is

necessary to prevent noncommercial broadcasting from becoming a

vehicle for the dissemination of government propaganda. If CPB-

funded stations were permitted to editorialize, the argument goes,

it would be impossible to prevent political considerations from in-

fluencing the distribution of federal aid, and the broadcasters would

inevitably air editorials favorable to those who hold the purse strings.

Govt. Brief 35-39. As the District Court concluded (J.S. App. 12a-

15a), however, this purported justification is also entirely specu-

lative and unfounded. See United Mine Workers v. Illinois State

Bar Ass'n, 389 U.S. 217 (1967); Williams v. Rhodes, 393 U.S. 23

(1968).

Certainly nothing in the record before Congress gave anyone

reason to fear that noncommercial broadcasters would suddenly

become subject to government control simply because they were

now to receive more federal assistance. As the sponsor of § 399

admitted, the government had been funding noncommercial stations

for several years and there had been no hint of either favoritism in

the distribution of those grants or interference with the broadcaster's

“The Government also fails to mention that the ‘‘other’’ provision of

§ 399, which is not being challenged in this case, prevents the noncom-

mercial broadcaster from injecting itself into partisan controversies and

elections.

ating

programming. 113 Cong. Rec. 26407 (remarks of Rep. Springer).

If anything, the additional safeguards built into the Public Broad-

casting Act made the possibility of government manipulation even

more remote, for under its elaborate dual-level funding system, there

is simply no way that a station's editorial policies can affect either

its eligibility for, or the amount of, a CPB grant; a station would

receive the exact same grant whether it praised or criticized the

‘“*government’’ in its editorials.

Any assertion that noncommercial broadcasting would respond

to government pressure by biasing its editorials and converting itself

into *‘a giant, government-controlled propaganda machine"’ must

likewise be dismissed as ‘‘necessarily wholly speculative.’’ Buckley

v. Valeo, supra, 424 U.S. at 93 n.126 (rejecting contention that

political parties receiving federal funds would be susceptible to

government influence). There is surely no historical support for the

Government's argument; there have never been any charges that

noncommercial broadcasting has adopted a **pro-government””’ slant

to its programming (see M. Yudof, When Government Speaks 124-

35 (1983)), and the diverse and pluralistic nature of noncommercial

broadcasters makes it virtually inconceivable that they would speak

with one voice on any issue, much less with the voice of the federal

government. /d. at 129-30. See generally Brief of Amici Curiae

PBS and NAPTS at 19-21. Cf. Bellotti, supra, 435 U.S. at 785

n.22 (*‘We know of no documentation of the notion that corporations

are likely to share a monolithic view on an issue such as the adoption

of a graduated personal income tax."’)*

“The Government argues for the first time on this appeal — and without

any support in the legislative history — that § 399 was also prompted by

congressional concern over possible interference by state and local gov-

ernments in the programming of their affiliated licensees. Even if this were

a concer, it could not justify restricting the speech of the over 200 CPB-

funded stations, including appellee Pacifica, that are privately owned and

operated, with no connection to governmental entities. Moreover, there is

no reason why the editorializing ban should be tied to the presence of CPB

funding if the perceived danger is the potential for manipulation by state

and local governments.

In addition, the suggestion that the federal government can silence the

voice of a state- or local-affiliated broadcaster under this rationale is very

Moreover, the alleged fear that a station would attempt to curry

favor with the government by biasing its editorial opinions makes

no intuitive sense. For who is the ‘‘government’’? And what is the

‘*pro-government’’ position? Is it the Administration’s? the Sen-

ate’s? the FCC’s? These different governmental actors and entities

will often disagree — indeed that disagreement is almost by defi-

nition what identifies an issue as appropriate for editorial comment

— leaving the broadcaster who wants to please the ‘‘government”’

with no clear choice. The safest option for the broadcaster seeking

to curry favor, then, is simply not to editorialize at all, so as not

to offend anyone.

Finally, as the District Court noted, there is another safeguard

that demonstrates the utter fallacy of the Government's argument.

The fairness doctrine and its specific manifestations in the personal

attack and political editorializing rules require the licensee to provide

a fair and balanced presentation of differing viewpoints, without

regard to its own particular opinions. Thus even if the station pre-

sents a ‘pro-government’ editorial, the opposing viewpoint will be

heard, as well. In sum, the District Court was manifestly correct in

concluding that the hypothetical fear of noncommercial broadcasting

Stations becoming government propaganda organs was entirely too

speculative to justify § 399’s prohibition against editorializing.“’

troubling. Surely, state and local governments retain the right to com-

municate their opinions on important public issues. A state *‘may seek to

disseminate information so as to enable its citizens to make better informed

decisions.’ Bigelow v. Virginia, 421 U.S. 809, 824 (1975). As long as

the government does not monopolize the airwaves, there is no constitutional

justification for prohibiting the expression of its views. See T. Emerson,

The System of Freedom of Expression 65\ (1970); Canby, The First Amend-

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

Texas L. Rev. 1123, 1127 (1974). Particularly where the local govern-

mental entity may wish to express its opposition to the policies of the

federal government, serious federalism concerns are raised by the latter's

suppression of the former's right to editorialize. See, e.g., EEOC v. Wy-

oming, 103 S.Ct. 1054, 1060-61 (1983).

“The Government suggests that the District Court erred in not deferring

to Congress’ judgment in this regard. However, where fundamental free

speech and press rights are infringed, courts have always conducted their

own exacting scrutiny of the asserted justifications and have imposed a

(footnote continued on following page)

=

C. Section 399’s Ban on Editorializing Is an Irrational and

Impermissible Response to Its Purported Objectives.

Even if there were some reason to fear that CPB-funded non-

commercial stations would propagate their own private views or

those of the ‘‘government’’ — and even if there were some legit-

imate government interest in preventing those views from being

expressed“ — § 399 still could not survive even the most minimal

First Amendment scrutiny, for there is ** ‘no substantially relevant

correlation between the governmental interest asserted and the [Gov-

ernment’s] effort’ to prohibit appell[ees] from speaking.’* Bellotti,

supra, 435 U.S. at 795 (quoting Shelton v. Tucker, 364 U.S. 479,

485 (1960)). If the prohibition on editorializing is truly aimed at

preventing the propagation of ‘‘private, partisan’’ viewpoints or

preventing noncommercial stations from becoming propaganda or-

gans, § 399 is not even rationally related to that end, much less is

it ‘a precisely drawn means"’ of achieving that objective. Consol-

idated Edison Co. v. Public Service Comm'n, supra, 447 U.S. at

540.

1. On the one hand, § 399 broadly prohibits editorializing on

all issues, not just those expressing partisan or *‘pro-government”’

heavy burden on the government to demonstrate the substantiality and

immediacy of the alleged harm. Cf. New York Times Co. v. United States,

403 U.S. 713, 730 (Stewart, J., concurring); id. at 732 (White, J., con-

curring). As this Court has admonished:

Deference to a legislative finding cannot limit judicial inquiry when

First Amendment rights are at stake... . Were it otherwise, the

scope of freedom of speech and of the press would be subject to

legislative definition and the function of the First Amendment as a

check on legislative power would be nullified.

Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843-44 (1978).

Accord, Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 519.

“Even if the Government were correct that Congress had enacted § 399

to ensure that stations not air ‘‘pro-government”’ editorials, the editorial-

izing prohibition would be no less illegitimate. Congress would still be

suppressing speech based on the speaker's viewpoint. Congress cannot

constitutionally bar stations from expressing their sincerely held beliefs

that the policies of the ‘‘government’’ are appropriate any more than it

could prohibit them from expressing ‘‘anti-government’’ sentiments.

wiftos

opinions.” The statute thus prevents the noncommercial broadcaster

from contributing to the public debate on the numerous issues of

interest to its community that neither have a partisan component nor

bear a. y relation to the federal government. For example, what is

the partisan perspective on child abuse? Is advocating a crackdown

on uninsured drivers a ‘‘pro-government’’ or ‘‘anti-government”’

issue? The subjects that are of the greatest concern to the com-

munities served by local stations are for the most part themselves

purely local, cutting across partisan lines and having little connection

to the federal government.” Section 399 thus impermissibly sweeps

within its ambit clearly protected speech that poses no danger to the

purported government interests. ‘‘Broad prophylactic rules in the

area of free expression are suspect. . . . Precision of regulation must

“The overbreadth of § 399 is but one way in which this statute differs

from the Hatch Act's limitation on the political activities of federal em-

ployees, and any attempt to draw support for § 399 by analogy to that

statute is misplaced. See 5 U.S.C. §§ 7324 et seq.; Civil Service Comm'n

v. National Assoc. of Letter Carriers, 413 U.S. 548 (1973). Whereas

§ 399 broadly suppresses all editorial expression, the Hatch Act narrowly

proscribes only ‘‘plainly identifiable acts of political management and

political campaigning’ (id. at 567), explicitly preserving the employee's

right ‘‘to express his opinion on political subjects and candidates.’’ /d. at

576. See 5 U.S.C. § 7324(b). In addition, the Hatch Act only covers

government employees; noncommercial stations are independent entities.

Finally, in upholding the Hatch Act, the Court emphasized that Congress

imposed those restrictions only after more than a century of experience

and experimentation with less restrictive alternatives had conclusively dem-

onstrated that they were needed to maintain the effective vperation of

government and to preserve the sanctity of the electoral process. 413 U.S.

at 564. In contrast, no such compelling interests or historical experience

justify § 399’s suppression of protected speech.

” A compilation of topics addressed in the editorials and replies appearing

on television station KNXT in Los Angeles during a random four-week

period in August, 1983 is set out in Appendix B. Only one of the eighteen

editorials had any relation to the federal government (and it certainly was

not ‘‘pro-government’’), and it would be difficult to identify a partisan

interest in many of the issues that were discussed. This finding is corrob-

orated by research surveying nationwide editorial practices. See, e.g., Fang

& Whelan, Survey of Television Editorials and Ombudsman Segments, \7

J. Broadcasting 363 (1973).

—

be the touchstone.’’ NAACP v. Button, 371 U.S. 415, 438 (1963).

On the other hand, if § 399 was really intended to prevent non-

commercial stations from propagandizing on behalf of their own or

the ‘‘government’s’’ viewpoint, it ‘‘provides only ineffective or

remote support for the government's purpose.’’ Central Hudson Gas

v. Public Service Comm'n, 447 U.S. 557, 564 (1980). For example,

§ 399 outlaws only the licensee’s editorial speech and imposes no

restrictions on any other aspect of the broadcaster’s public affairs

programming. Yet, as the FCC acknowledged over thirty years ago

in specifically rejecting the very argument now being proffered by

the Government in its name, the broadcaster that is determined to

propagate a particular viewpoint can icadily do so through myriad

other programming formats.*' As Congress was well aware when it

enacted § 399, these formats could much more easily be abused to

advocate subtly a particular editorial position. Editorials, in fact,

would be the least effective vehicle for propagandizing: An editorial

is the most fortiright expression of a station's position; it must be

clearly labelled as such; and it triggers most directly the obligation

to present contrasting viewpoints under the fairness doctrine. Indeed,

the FCC has held that expression of the licensee’s opinion may ‘‘be

actually helpful in providing and maintaining a climate of fairness

and equal opportunity for the expression of contrary views. Certainly

the public has less to fear from the open partisan than from the

*' Tt is clear that the licensee’s authority to determine the specific

programs to be broadcast over his station gives him an opportunity

. . » to insure that his personal viewpoint on any particular issue is

presented in his station's broadcasts, whether or not these views are

expressly identified with the licensee.

Editorializing Report, supra, 13 F.C.C. at 1252. In fact, it was in part

the recognition of this very point that led the FCC to reject a prohibition

against editovializing and to adopt the fairness doctrine as the means of

ensuring the balanced presentation of differing viewpoints on public issues.

Id, at 1252-53.

“In the House debate, for example, Rep. Watson explained:

Let them go ahead and editorialize. Give me the right to control

program content, and others can editorialize all they want to, but I

will influence the thinking of the American public more with the

programs or with people I have appearing on the programs.

113 Cong. Rec. 26392. Accord, id. at 26408-09 (remarks of Rep. Brown).

“ = =

covert propagandist.’ Editorializing Report, supra, 13 F.C.C. at

1254; accord, 1983 Proposed Rulemaking 17-18.

Moreover, the fact that § 399 has been interpreted to prohibit

‘‘only’’ the views of ‘licensees, their management or those speaking

on their behalf’’ (see Jn re Complaint of Accuracy in Media, Inc.,

45 F.C.C.2d 297, 302 (1973))°* merely highlights the irrationality

of the statute, for it means that the very same opinions that cannot

be expressed by the licensee could be broadcast if they were mouthed

by a station commentator, by a guesi being interviewed, or by a

person who simply walks in off the street. In fact, since the licensee

retains the discretion to select whomever it wishes to speak on its

station, the ban on licensee editorializing accomplishes nothing at

all — except to suppress the one voice that most rightfully should

be heard. Cf. Buckley v. Valeo, supra, 424 U.S. at 45 (limiting

interpretation of statute only undermines its effectiveness); Bellotti,

supra, 435 U.S. at 793 (prohibition’s underinclusiveness under-

mines plausibility of state’s purported interest); Smith v. Daily Mail

Publishing Co., 443 U.S. 97, 110 (1977) (Rehnquist, J., concurring)

(statute’s failure largely to achieve its purpose makes it difficult to

“The Government argues that this limiting interpretation means that

§ 399 ‘interferes only minimally’’ with freedom of speech, because it

does not prevent a licensee from expressing its views in any other medium

and because others are free to state their opinions on the station's facilities.

But it has long been settled that ‘‘one is not to have the exercise of his

liberty of expression in appropriate places abridged on the plea that it may

be exercised in some other place.’* Schneider v. State, 308 U.S. 147, 163

(1939). Accord, Spence v. Washington, 418 U.S. 405, 411 & n.4 (1974).

And as Justice Blackmun cogently observed last Term, *‘It hardly answers

one person's objection to a restriction on his speech that another person,

outside his control, may speak for him."’ Regan v. Taxation With Rep-

resentation, 103 S.Ct. 1997, 2005 (1983) (Blackmun, J., concurring).

More important, the First Amendment prohibits the minor, as well as the

major, abridgment of its precious freedoms. Thomas v. Collins, 323 U.S.

516, 543 (1945) (‘The restraint is not small when it is considered what

was restrained.’’); Near v. Minnesota, 283 U.S. 697, 721 (1931); N.L.R.B.

v. Fruit and Veg. Packers and Warehousemen, 377 U.S. 58, 80 (1964)

(Black, J., concurring) (*‘First Amendment freedoms can no more validly

be taken away by degrees than by one fell swoop.’’).

= =

take asserted state interest seriously).™

Likewise, § 399 restricts only the CPB-funded noncommercial

broadcaster, even though the opportunity for government interfer-

ence is just as great, if not greater, with respect to any of the other

communicative activities subsidized by the federal government. Even

in the broadcast medium, CPB funding is not the touchstone by

which the potential for government control should be measured. For

example, the threat of license nonrenewal (which hangs over com-

mercial and noncommercial stations alike) and the host of subtle,

yet powerful, ‘‘raised eyebrow’’ regulation practices, would provide

a much stronger, less visible — and hence more dangerous — wedge

for exerting leverage over editorial content than does the often min-

imal amount of direct CPB assistance.”

In short, the Government's argument proves too much and its

statute addresses too little. Even if there were some basis for the

Government's purported fears, § 399's ban on editorializing by non-

commercial licensees ‘‘does not provide an answer that sufficiently

relates to the elimination of those dangers.’’ Buckley v. Valeo,

supra, 424 U.S. at 45; accord, Carey v. Brown, supra, 447 U.S.

at 465 (apparent overinclusiveness and underinclusiveness of re-

striction undermines asserted state interest), Indeed, this Court's

statement in Bellotti, supra, 435 U.S. at 793, is just as applicable

here: ‘‘The fact that a particular kind of ballot question has been

singled out for special treatment undermines the likelihood of a

“The perversity of § 399 is that under the guise of preventing the prop-

agation of ‘‘private’’ viewpoints, the one entity that is most responsive

and responsible to the ‘public interest’’ is the only entity that cannot

express its opinions over the noncommercial station. Nor can the selective

exclusion of the licensee's viewpoint be justified on the ground that its

opinion might prove more persuasive than others aired over its facilities.

See Bellotti, supra, 435 U.S. at 790-91 (**the fact that advocacy may

persuade the electorate is hardly a reason to suppress it’’).

“See, e.g., Community-Service Broadcasting, supra, 593 F.2d at 1115-

16; Writers Guild v. FCC, 423 F.Supp. 1064, 1146 (C.D. Cal. 1976),

vacated on jurisdictional grounds, 609 F.2d 355 (9th Cir. 1976). Because

commercial broadcasters have much greater market shares, the government

would also have more incentive to influence their programming than that

of the less popular noncommercial stations. See M. Yudof, When Gov-

ernment Speaks, supra, at 125-26.

x =

genuine state interest in protecting shareholders. It suggests instead

that the legislature may have been concerned with silencing cor-

porations on a particular subject.”’

2. Finally, § 399’s means of addressing the purported fears of

broadcaster partisanship and government propagandizing is funda-

mentally at odds with the First Amendment. The statute suppresses

the licensee's views in advance of their expression, allegedly in

order to eliminate any possibility that the ‘‘privilege’’ of broad-

casting might be abused. But the First Amendment does not permit

the Government to restrain speech out of fear of its potential adverse

consequences. See generally Near v. Minnesota, 283 U.S. 697

(1931). If ever a noncommercial broadcasting station were to ignore

its fairness doctrine obligations and use its facility to propagate a

particular partisan or ‘‘pro-government’’ viewpoint, then that would

be the time to take remedial action, including, if necessary, revo-

cation of its license. The Government may not, however, prohibit

the broadcaster from speaking merely in anticipation of any such

remote occurrence. ‘‘It is precisely this kind of choice, between the

dangers of suppressing information, and the dangers of its misuse

if it is freely available, that the First Amendment makes for us."’

Virginia State Bd. of Pharmacy vy. Virginia Citizens Consumer

Council, 425 U.S. 748, 770 (1976); Bellotti, supra, 435 U.S. at

791-92.

In particular, to permit the government to silence the broadcaster

in order to prevent the hypothetical possibility of government in-

terference stands the First Amendment on its head. That Amendment

is premised on the principle that freedom of speech and a free press

are the most valuable defenses against government excesses, gov-

ernment suppression of speech is precisely the evil to be feared, not

the remedy to be applied. **Any other accommodation — any other

system that would supplant private control of the press with the

heavy hand of government intrusion — would make the government

the censor of what the people may read and know.’’ Miami Herald

Publishing Co. v. Tornillo, supra, 418 U.S. at 260 (White, J.,

concurring). Accord, CBS v. DNC, supra, 412 U.S. at 124-25.

Thus, the constitutionally permissible response to any fear that

the government's or the licensee's views might dominate the air-

waves is not to close down the broadcaster's editorial room, but,

as the fairness doctrine already requires, ‘‘to push the doors open

—

to all viewpoints.’’ Community-Service Broadcasting, supra, 593

F.2d at 1134 n.62 (Robinson, J., concurring). More speech, not

less speech, is the way of the First Amendment. See, e.g., Bellotti,

supra, 435 U.S. at 790-91; Red Lion, supra, 395 U.S. at 390,

Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J.,

concurring). If existing measures are deemed insufficient, the an-

swer lies in tightening the safeguards against government interfer-

ence and vigilantly enforcing the fairness doctrine, not in suppress-

ing the broadcasters’ views. ‘‘Freedom of the press cannot be

preserved, as Mr. Justice Frankfurter noted, by prohibitions cal-

culated ‘to burn the house to roast the pig.’ Butler v. Michigan,

352 U.S. 380, 383 (1957)."’ Joyner v. Whiting, 477 F.2d 456, 462

(4th Cir, 1973). As the appellant FCC itself concluded in rejecting

a call for a prohibition on licensee editorializing:

Assurance of fairness must in the final analysis be achieved,

not by the exclusion of particular views because of the source

of the views, or the forcefulness with which the view is ex-

pressed, but by making the microphone available, for the pre-

sentation of contrary views without deliberate rest.ictions de-

signed to impede equally forceful presentation.

Editorializing Report, supra, 13 F.C.C. at 1253-54.

Il. SECTION 399’S DISCRIMINATORY SUPPRESSION OF THE

CPB-FUNDED BROADCASTER’S EDITORIAL OPINIONS

VIOLATES THE EQUAL PROTECTION GUARANTEES OF

THE FIRST AND FIFTH AMENDMENTS.

Because § 399 discriminates with respect to the speech it permits

in the same medium of expression, the Equal Protection component

of the First and Fifth Amendments **mandates that the legislation

be finely tailored to serve substantial state interests, and the justi-

fications offered for any distinctions it draws must be carefully

scrutinized.’’ Carey v. Brown, supra, 447 U.S. at 461-62; Police

Dept. of Chicago v. Mosley, 408 U.S. 92, 98-99, 101 (1972). In

particular, when the Government selectively prohibits one category

of speech or class of speaker, it bears a heavy burden of justifying

those exclusions. *'In the realm of protected speech, the legislature

is constitutionally disqualified from dictating the subjects about which

persons may speak and the speakers who may address a public

issue."’ Bellotti, supra, 435 U.S. at 784-85.

a

Section 399 violates this fundamental principle of equality. The

Statute applies to only one type of broadcasting station; it restricts

the free expression of only one speaker on that station; and it pro-

hibits speech in only one form and on only one subject. Yet none

of these discriminations can be shown to be even reasonably related

to the purported government interests behind the ban on editorializing.

For example, communications media that receive federal subsi-

dies other than CPB grants are permitted to editorialize, even though

they are no less susceptible to government influence and no less

likely to espouse ‘‘private’’ viewpoints. See Community-Service

Broadcasting v. FCC, supra, 593 F.2d at 1123 n.52. Noncom-

mercial stations that receive no CPB monies often receive discre-

tionary funding from diverse federal entities such as the National

Endowment for the Arts or the Departments of Commerce and

Education; commercial broadcasters receive federal subsidies in

other forms, including their valuable license at no cost, the print

media are likewise heavily subsidized through reduced postal rates

and tax exemptions; more generally, the federal government sub-

sidizes individuals and organizations ranging from universities to

oil companies; yet only the CPB-funded broadcasters (whose grants

pass through an elaborate mechanism precisely to ensure their in-

sulation from government interference) are prohibited from express-

ing their own views.

Section 399’s restraint of speech is even less defensible when the

exact scope of the restriction is examined, for it prohibits only

editorials presented on behalf of the station management. Opinions

may be voiced by anyone else, even though such persons are no

less likely to express ‘‘private’’ viewpoints or to espouse *'pro-

government’’ positions, particularly since the licensee retains the

authority to decide whom to let on the air. Similarly, the statute

bans only editorials and does not address the multitude of other

“See CPB, Inventory of Federal Funds Distributed to Public Telecom-

munications Entities, FY 198] (June 1983) ($32 million distributed dis ectly

to noncommercial licensees through twenty different federal programs).

Much of this money — such as NTIA’s new facilities’ construction grants

— went to stations that did not receive CPB grants. See Community Service

Broadcasting v. FCC, supra, 593 F.2d at 1120 & n.42; Carnegie Il, at

122.

a we

programming formats, such as news commentary, interviews, and

documentaries, that would be at least as attractive as vehicles for

propagandizing or propagating partisan views. As the FCC itself

has explained, the licensee editorials prohibited by § 399 are ‘‘just

one of several types of presentation of public issues’’ and are not

*‘intrinsically more or less subject to abuse than any other program

devoted to public issues.’’ Editorializing Report, supra, 13 F.C.C.

at 1253.

Moreover, § 399 bars all editorial expression by all CPB-funded

Stations, including those editorials concerning purely local or non-

governmental issues for which it would be impossible even to iden-

tify a partisan or federal interest. The denial of First Amendment

rights cannot be founded upon the presumption of partiality and

vulnerability to government influence that underlies § 399. See Po-

lice Dept. of Chicago v. Mosley, supra, 408 U.S. at 100-01 (se-

lective prohibition of nonlabor picketing held unconstitutional be-

cause government may not distinguish among speakers and subject

matters *‘on such a wholesale and categorical basis’’); McDaniel v.

Paty, supra, 435 U.S. at 645 (White, J., concurring).

In sum, § 399 lacks the precision of regulation mandated by the

First Amendment and the Equal Protection Clause. In only one

selective context — that of overt editorializing by CPB-funded non-

commercial broadcasters — is the existence of a partial federal

subsidy deemed to necessitate the abridgment of freedom of speech

and the press. And within that context, no effort is made at indi-

vidualized inquiry, with the result that speech posing absolutely no

danger to the asserted government interests is subject to § 399's

overbroad prohibitions. Under the Equal Protection guarantee, then,

§ 399 cannot stand.

Ill. SECTION 399 USCONSTITUTIONALLY CONDITIONS THE

RECEIPT OF A CPB GRANT ON THE BROADCASTER’S

FORFEITURE OF ITS FIRST AMENDMENT RIGHTS.

Section 399 also violates the principle that the government may

not condition the receipt of a public benefit on the relinquishment

of constitutional rights. Perry v. Sindermann, 408 U.S. 593, 597

(1972); Speiser v. Randall, 357 U.S. 513, 518 (1958); Frost &

Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 593-94

(1926). While the government may be under no obligation to provide

a benefit in the first place, **[i}t is too late in the day to doubt that

sles

the liberties of religion and expression may be infringed by the

denial of or placing of conditions upon a benefit or privilege.”’

Sherbert v. Verner, 374 U.S. 398, 404 (1963). Because § 399

requires the noncommercial licensee to forfeit its right to editorialize

with its own funds in order to receive a CPB grant. ‘‘[o}nly the

gravest abuses, endangering paramount interests,’’ can justify the

Statute’s infringement upon the station's exercise of its First Amend-

ment liberties. /d. at 406 (quoting Thomas v. Collins, supra, 323

U.S. at 530).

That § 399 places a condition on the receipt of a CPB grant cannot

be denied. All commercial broadcasters, and all noncommercial

broadcasters that do not receive grants from CPB, are free to speak

out on issues of public importance. But in distributing financial aid

to noncommercial stations through CPB grants, the Government has

placed the noncommercial broadcaster in the position of having to

choose between retaining its right to editorialize (as it did before

§ 399 was enacted) or receiving federal aid; it cannot do both. *‘In

reality, the [grantee] is given no choice, except a choice between

the rock and the whirlpool, — an option to forego a privilege which

inay be vital to his livelihood or submit to a requirement which may

constitute an intolerable burden.’’ Frost & Frost Trucking Co. v.

Railroad Comm'n, supra, 271 U.S. at 593.°’

This Court has repeatedly condemned any such governmental

attempt to use the power of its purse to ‘produce a result which

{it} could not command directly."’ Speiser v. Randall, supra, 357

U.S. at 526. For example, in Sherbert v. Verner, supra, the Court

invalidated an unemployment insurance law that required recipients

to work in violation of their religious convictions, holding that the

"The alarming implications of such a coercive use of governmental

largesse in subsidizing the communications media were recognized in Han-

negan v. Esquire, supra, 327 U.S. at 155-56 (citations omitted):

We may assume that Congress . . . need not open second-class

mail to publications of all types. . . . But grave constitutional ques-

tions are immediately raised once it is said that the use of the mails

is a privilege which may be extended or withheld on any grounds

whatsoever... . Under that view the second-class rate could be

granted on condition that certain economic or political ideas not be

disseminated.

—44—

State could not force an applicant ‘‘to choose between following

the precepts of her religion and forfeiting benefits, on the one hand,

and abandoning one of the precepts of her religion in order to accept

work, on the other hand.*’ 374 U.S. at 404. Accord, Speiser v.

Randall, supra (tax exemption conditioned cn signing loyalty oath);

McDaniel v. Paty, supra (holding of public office conditioned on

surrendering ministry). Here, too, the noncommercial broadcaster

must abandon a central element of its First Amendment rights in

order to receive the governmental benefit.

The Governmert relies upon the recent decision in Regan vy.

Taxation With Representation, 103 S.Ct. 1997 (1983) (“7TWR"’),

to claim that § 399 does not abridge the noncommercial broad-

casters’ free speech, but merely provides that the federal government

will not subsidize their editorials. Far from supporting the Govern-

ment’s contention, however, 7WR only confirms the constitutional

defects of § 399.

In upholding a limitation on ‘‘substantial’’ lobbying by tax-ex-

empt organizations, the Court in TWR specifically noted that under

the dual provisions of § S501(c)(3) and § 501(c)(4) of the Internal

Revenue Code, any organization could segregate its lobbying ac-

tivities from its nonlobbying activities by establishing two parallel

operations (one under each of the two Code provisions), and by

“McDaniel vy. Paty, supra, is particularly apposite, for the State argued

there that its prohibition on clergy holding public office was necessary to

protect against the possibility that clergymen would unduly promote their

sectarian interests. Finding no persuasive support for the fear that cler-

gymen would be unfaithful to their public duties, this Court rejected the

asserted rationale and held that the clergy-disqualification provision un-

constitutionally conditioned the right to seek office on surrender of the

right to be a minister. As Justice Brennan stated in concurrence:

[GJovernment may not as a goal promote ‘‘safe thinking’’ with re-

spect to religion and fence out from political participation those, such

as ministers, whom it regards as overinvolved with religion. .

The antidote which the Constitution provides against zealots who

would inject sectarianism into the political process is to subject their

ideas to refutation in the marketplace of ideas.

435 U.S. at 641-42. Similarly, the antidote which the Constitution provides

against broadcast licensees who may espouse ‘‘private’’ or ‘*pro-govern-

ment’’ viewpoints is to subject their ideas to refutation in the marketplace.

—

doing so, could both lobby and receive the full benefits of tax

deductibility for its nonlobbying activities. In other words, the Court

explained, Congress had not forced the organization to forfeit its

right to lobby in order to qualify as tax-exempt, but had merely

chosen not to pay for its lobbying activities out of public monies.”

As the three concurring Justices pointed out, the availability of the

§ 501(c)(4) affiliate option is critical to the decision in TWR, for it

enables the charitable organization simultaneously both to lobby and

to receive the government subsidy to which it is entitled for its

nonlobbying activities, /d. at 2004-05 (Blackmun, J., concurring).

No such option exists for the noncommercial broadcaster under

§ 399,

Section 399 simply does not fit the mold of 7WR, since it does

not merely provide that Congress will not pay for the noncommercial

broadcasters’ editorializing, but instead prohibits them from edi-

torializing even with their own private funds. Cf. id, at 2001 n,7

(distinguishing CARC vy. Berkeley, supra, because the ordinance

invalidated in that case had unconstitutionally limited individuals’

expenditure of their own money on political speech). In contrast to

the Internal Revenue Code, § 399 does not permit a noncommercial

station to editorialize with its own funds while still receiving gov-

ernment subsidies to support its non-editorializing activities.”

“The Court analogized the situation in TWR to that in Harris v, McRae,

448 U.S. 297, 317 n.19 (1980), where it had explained that the govern-

ment’s refusal to provide Medicaid benefits to fund abortions was per-

missible, but an attempt to withhold a// Medicaid benefits from an oth-

erwise eligible candidate simply because she had exercised her right to

have an abortion would be impermissible. See 103 S.Ct. at 2003; id, at

2004 n.* (Blackmun, J., concurring). Section 399 does precisely what the

Court in Harris v. McRae said would be unconstitutional: It would withhold

all CPB grants from an otherwise eligible station simply because that station

wished to exercise its right to editorialize,

“In fact, the instant case presents just the situation that the concurring

Justices emphasized would be unconstitutional under Speiser v, Randall,

supra, and Perry v, Sindermann, supra — where a statute ‘does not merely

deny a subsidy for [exercising a constitutional right],’* but ‘‘deprives an

otherwise eligible organization of [a subsidy] for all its activities, whenever

one of those activities is [exercising the constitutional right)."’ See 103

S.Ct. at 2004 (Blackmun, J., concurring). The Government's attempt to

draw support from the concurring opinion in TWR is laughable. The sug-

gestion that § 399 is nevertheless valid because Pacifica would be free to

(footnote continued on following page)

—_— =

Indeed, the fact that Congress did not establish or approve any

mechanism by which CPB-funded noncommercial broadcasters could

continue to editorialize with nonfederal money lays bare the fallacy

of the Government's contention that § 399 was enacted simply to

ensure that the government does not pay for the stations’ editorial-

izing. If that had been its intent, Congr.ss could easily have spec-

ified, as it does in myriad other contexts, that no portion of a CPB

grant may be used to support that particular activity (/.¢., edito-

rializing). See id. at 2002 (Congress could validly grant funds on

condition that none of the money be used for lobbying); 18 U.S.C.

§ 1913. See generally Brief of Amicus Curiae ACLU at 23. In fact,

CPB itself imposes such activity-specific limitations on its grants,

and noncommercial stations maintain separate accounts in order to

segregate the restricted funds they receive, not only from CPB but

from a variety of different sources. See generally CPB, Public

Telecommunications Audit Guide and Requirements (June 1980).

Nor is it without significance that § 399 is phrased as an express

prohibition against editorializing by a CPB-funded noncommercial

station, and that the penalty for its violation is not the withdrawal

or repayment of the federal assistance, but direct sanctions against

the station potentially leading to revocation of its license and im-

position of criminal penalties.”' This, too, undermines the plausi-

editorialize on any unsubsidized station while continuing to operate a

subsidized one is as ridiculous as asserting that the San Francisco Examiner

could be prohibited from editorializing because its parent, the Hearst Cor-

poration, can express its views in its Los Angeles paper, the Herald Ex-

aminer. And it would hardly comfort the readers in San Francisco to know

that the residents of Los Angeles were receiving a full range of editorial

viewpoints,

"The contrast between § 399's ban on all editorializing and § S01(c)(3)'s

prohibition against ‘‘substantial lobbying’’ with federal subsidies is strik-

ing. As the Government explained in its brief in 7WR, the Internal Revenue

Code permits an organization, through election under § SO01(h), to spend

up to 30% of its exempt-purpose funds for lobbying activities and still

qualify for § SO1(c)(3) status. **The statute therefore represents a consid-

ered accommodation, to the extent consistent with the aims of the exempt

organization Provisions, of the First Amendment values inherent in leg-

islative advocacy.’’ TWR, Brief for Appellants 38-39 n.20. By contrast

§ 399 contains no accommodation whatsoever of the First Amendment

values inherent in either the noncommercial broadcaster's right of free

expression or the public's interest in preserving a free marketplace of ideas.

a 2

bility of the Government's characterization of the statute, Instead,

particularly when viewed in conjunction with § 399's imprecise fit

and disturbing legislative history, these factors strongly suggest that

the statute was designed to achieve just what it has produced — the

complete suppression of noncommercial broadcasters’ opinions on

issues of public importance. This, then, is precisely the ‘‘very dif-

ferent case’’ referred to in TWR (see 103 S.Ct. at 2002; id. at 2004

(Blackmun, J., concurring)), the case in which the Court has con-

sistently held that it is unconstitutional to condition the conferral of

a government benefit upon the surrender of First Amendment rights.

CONCLUSION

For the above reasons, the judgment of the District Court should

be affirmed.

Respectfully submitted,

Frepric D. WoocHER

Lucas GUTTENTAG*

MARILYN O, TESAURO

BILL LANN Lee

CARLYLE W. HALL, JR.

JOHN R. PHILLIPS

Center for Law in the

Public Interest

Attorneys for Appellees

Of Counsel:

TRACY WESTEN *Counsel of Record

OCTOBER 1983.

APPENDIX A

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 re-

ceives a grant from the Corporation [for Public Broadcasting]

under subpart C of this part may engage in editorializing. No

noncommercial educational broadcasting station may support

or Oppose any candidate for political office.

July 29th and

August Ist

August Ist

and 2nd

August 2nd

and 3rd

August 4th

and Sth

August Sth

and Sth

August Sth

and 8th

August 8th

and 9th

August | Ith

and 12th

a, oe

APPENDIX B

Editorials Broadcast by

Station KNXT, Los Angeles

August 1-August 26, 1983

Uninsured Motorists: Putting on the Brakes — Sup-

ports proposed state bill that would impose additional

fine on uninsured motorists receiving traffic citations.

Arson Watch — Announces station’s *‘anti-arson

month,’’ summarizing scheduled programming aimed

at increasing public awareness of the crime of arson.

Campaign Reform: Local Election Fund-Raising Laws

— Urges Los Angeles City Council's Charter and

Elections Committee to reform election fund-raising

laws, limiting the amount of money that can be raised,

setting time limits, and reducing the potential for con-

flicts of interest on the City Council.

Reply to an Editorial on Airport Free Speech; Emmett

C. McCaughey, Airport Board Commissioner — States

that in restricting location of First Amendment activ-

ities to sidewalks in front of terminals at Los Augeles

International Airport, Board of Airport Commission-

ers is properly reconciling needs of travelers and

speakers.

Hunters and Wildlife: Putting up the Bans — Urges

Park Service Advisory Commission to uphold present

ban on hunting in Cheeseboro Canyon, a part of Sania

Monica Mountains Recreation Area in Los Angeles.

Reply to an Editorial on Cheeseboro Canyon to Be

Kept Off Limits to Hunters; Bob McKay, Private Cit-

izen — Urges that hunting and related consumptive

uses be rermitted in Cheeseboro Canyon.

Re;!y to an Editorial on Community Colleges; Todd

Jones, Past Student President, Long Beach City Col-

lege — Argues that proposed community college tu-

ition of fifty dollars per semester is reasonable and

necessary.

Community College Funding: Overriding the Gov-

ernor’s Veto — Decries Governor's cut in funding of

community colleges as pushing the neediest out of a

system ostensibly intended to overcome their disad-

vantages through education.

August | 2th

and 15th

August 15th

and 16th

August 15th

and 16th

August 16th

and 17th

August 18th

and 19th

August 19th

and 22nd

August 22nd

and 23rd

August 23rd

and 24th

August 24th

and 25th

August 25th

and 26th

a

Reply to an Editorial on Campaign Finance Reform;

Walter Zelman, Common Cause — Emphasizes need

for campaign reform at local level.

Pound Seizure: Deja Vu — Speaks out against pro-

posed state bill banning use of pound animals for

medical research; but recommends strengthening of

rules governing permissible treatment of lab animals.

Reply to an Editorial on Bus Bill; Sabrina Schiller,

Coalition for Clean Air — Agrees with KNXT’s po-

sition against proposed state bill that would permit

purchase by Southern California Rapid Transit District

of polluting buses; recommends legislation to phase

in buses that use clean-burning fuels.

Reply to an Editorial on Animals for Medical Re-

search: Gretchen Wyier, Fund for Animals —- Urges

support for state bill banning use of pound animals

for medical research.

Arson: Squashing the Firebugs — Stresses need for

a local coalition of government agencies, police, fire-

fighters, and insurance companies to fight arson.

The Metropolitan Water District: Growing at Your

Expense — Takes stand against local water district's

proposed rate increase.

The FBI Probe of EPA: Pulling Punches? — Ques-

tions objectivity of FBI probe of EPA's delay in fund-

ing the cleanup of local Stringfellow Acid Pits.

Orange County's Environmental Mis-Management

Agency -— Criticizes Orange County Environmental

Management Agency's choice of more expensive al-

ternative means of installing water pipeline.

Re-Dedicating Resources to Child Abuse: Los Angeles

County — Supports Los Angeles County Supervisor's

proposal for a new County Department of Child Abuse

to investigate child beatings.

Drunk Driving Schools: Pass or Fail? — Supports

drunk driving school as an alternative to jail for first-

time offenders, but emphasizes need for quality-con-

trol monitoring of schools.