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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 364

## Text

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 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0013%3A06. Public record. Not legal advice.