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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0013%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief for the United States
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 364

## Text

No, 82-912

In the Supreme Court af the H 5

OCTOBER TERM, 1983

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT
Vv.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

REPLY BRIEF FOR THE
FEDERAL COMMUNICATIONS COMMISSION

Rex E, LEE
Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
PAUL M. BATOR
Deputy Solicitor General
SAMUEL A. ALITO, JR.
Assistant to the Solicitor General
Department of Justice

Washington, D.C. 20530
(202) 633-2217

EEN AAC

TABLE OF AUTHORITIES

Cases: Page
Adickes v. S.H. Kress & Co., 898 U.S. 144................ 18
Be Ys FOO, GG Wi ilie B corccecteesecscteresnecessncnncestons 16
Carey V¥V. Brown, 447 U.S. 466 .......cccccccccccccscssccscccceee 17, 18
Complaint of Accuracy in Media, Inc., In re, 45

NS OR ARCS RU AG. | SERS ler cB eke sear OTL One 9
Consolidated Edison Co. Vv. Public Service Comm'n,

SE tas I Leiectichaseicstandaslensdipchentbesbickeneckcstibtedantiananbii 9
FCC vy. National Citizens Committee for Broad-

I Tie I pacendiscsncicteesectebnesaicicalennendeseicteesiee 18
McDaniel V. Paty, 485 U.S. 618 ...............cccceeeseeeeeeees 18
Miami Herald Publishing Co. v. Tornillo, 418 U.S.

RL gt MIELE IS ee ee ee cer ROE 6
Perry v. Sindermann, 408 U.S. 598 .00.000....0..000000.. 18
Police Department Vv. Mosley, 408 U.S. 92 0.000... 17, 18
Ramsey Vv. Mine Workers, 401 U.S. 302 0.0000... 18

Red Lion Broadcasting Co. v. FCC, 895 U.S. 367... 6,11
Regan Vv. Taxation With Representation, No, 81-

ee RS Rea ne Sr 18, 19
Sherbert V. Verner, 874 U.S. 898 ............cccccccscsesereseee 18
Speiser Vv. Randall, 857 U.S. 518 .............ccccccceeeseeees 18
Tilton V. Richardson, 408 U.S. 672 ..........0000.ccccccececee 20

Constitution, statutes and regulations:
Tavs ant INI I i 6, 7, 11, 18, 20
Internal Revenue Code (26 U.S.C. & Supp. V):
Re EO | Fa ae NC 2,19
ety UE UF GED ciao sescicissocsnsdtnonsiuceneaconsioees 19

Public Broadcasting Act of 1967, 47 U.S.C. (&
Supp. V) 890 et seq.:

47 U.S.C. (Supp. V) 396(g) (1) (A) on... 2
III oa snccrss tons consents dacreneeitcceeuaies 2
Ro IY octets sciscsodeccnbietearcemasauseds pennies passim
RR Sc aaeiees 19
I eens 10
eI IIIIPIIIT <ssc.csor cscs gu sconcusccibasseansesunbebiiebandcvenceudio 10
47 C.F.R. Pt. 78:
Econ aT erent 19
eae 8

II

Miscellaneous : Page
E. Barnouw, The Image Empire (1970) «0.00.00... 3
CPB, 1982 CPB Public Broadcasting Directory...... 8,4
Carnegie Commission, A Public Trust (1979)........ 4,14
Carnegie Commission, Public Television—A Pro-

Pe ” )__, Pa retennRen ue U ye Oneiaths 4
Comment, The Legal Problems of Educational Tele-
vision, 67 Yale L.J. 689 (1958) .............. eee 4
113 Cong. Rec. (1967):
I dad anes saltcclocscasveiicknionsianinstnidphecaseebannants 12
a danhemnneehsiaennbalion 12
= _ ORs ail idasseaaten 12
ERISA A SS Ol AO eae Rn ORR A 12
i BE I CRIP TD oni cecencctseeiecnnts ocsncoccencnce 5
N.Y. Times:
ST ON a a hae 15
I 15
ABER E eeR ero enR Ae se 15
Og! Be ae ee vat eee 15
BINT vaccacicccicnctuscdasececkicemecntiobelasonmicetedsies 15

ie Me BITTE ciecnindieconiecapsinoig-snecotintebsateisewiooansctaninen 15

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-912
FEDERAL COMMUNICATIONS COMMISSION, APPELLANT
Vv,
LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

REPLY BRIEF FOR THE
FEDERAL COMMUNICATIONS COMMISSION

I

A. Appellees’ brief paints a false picture of public
broadcasting and distorts the role of Section 399 as one
constituent element in public broadcasting’s public char-
ter. Appellees’ fundamental thrust is to portray public
broadcasting as an industry essentially no different from
the ordinary private print media, existing—except for
the receipt of small amounts of public assistance—in
the identical atmosphere of “journalistic independence”
(Br. 7).’ Section 399 is then portrayed as an isolated, ill-
motivated, crudely restrictive (and unnecessary) incur-
sion into the ‘“untrammeled freedom” (Br. 15) of these
“independent journalistic entities” (Br. 4) to broadcast
what and how they see fit.

In fact, this picture is quite false, an empty abstrac-
tion. As our opening brief explained (Gov’t Br. 9-21, 28-
82), Section 399 is one element in an intricate and special
universe—institutional, financial, regulatory, and legal—
that is quite inapposite to the ordinary print media. This
is a universe in which no one may publish at all without
a license from the government granted in return for the
legally enforceable undertaking to operate for the public

1 “Br.” refers to appellees’ brief.
(1)

2

interest, convenience and necessity. Broadcasters, unlike
other journalistic entities, must take account of the needs
of their local communities; must give coverage to public
affairs; must, in doing so, be “fair” in reflecting differ-
ing viewpoints; and must afford a right to reply to per-
sons who have been attacked and candidates who have
been opposed. In the case of public broadcasting, these
“independent journalistic entities’ must themselves be
either government entities or nonprofit organizations.
They may not sell or accept advertising (including politi-
cal advertising) ; are subject to special rules of financial
disclosure, accounting, and employment practices; and
are obligated to broadcast programming which is “pri-
marily designed for educational or cultural purposes” (47
U.S.C. 397(9)). The public broadcasting system is to
achieve “strict adherence to objectivity and balance in all
programs or series of programs of a controversial nature”
(47 U.S.C. (Supn. V) 396(g) (1) (A)) ; may not endorse
or oppose political candidates; and—in the case of the
vast majority of public stations that are tax-exempt—
must refrain from “propaganda” and “influenc[ing] leg-
islation” (26 U.S.C. 501(¢) (3)). See Gov’t Br. 16-17.

Why does this elaborate regulatory universe exist?
What justifies its restrictive elements? The explanation
lies, as we showed in our opening brief, in the fact that
public broadcasting as we know it today was not simply
a product of the private sector, an industry differing only
technologically from the print media. Public broadcasting
is the product of a substantive national commitment to
foster and support special broadcast services of a sort
not provided by the private sector. In the case of the
print media (and even in the case of commercial broad-
casting), the notion of a national undertaking to achieve
an animating substantive end is quite foreign. But pub-
lic broadcasting in its present form exists because of a
public decision that we needed it and wanted it.

This public commitment is manifested by public sup-
port: special provisions giving sustenance to and protect-
ing broadcasters qualified to render the special broadcast
services the private sector could not provide. When it

became apparent that noncommercial organizations could
not successfully compete with commercial firms, the fed-
eral government reserved special channels exclusively for
=——~ noncommercial use atid thereby insulated public broad-
casting from t arsh competition of the commercial
world Whew became apparent that private financial
support of noncommercial broadcasting was seriously and
chronically deficient, government furnished large sub-
sidies. Grants were first provided for the construction
of public broadcasting facilities; more important, since
1967 virtually every public station has also received a
steady stream of major government aid to support all
aspects of station operations. Additional assistance comes
in the form of critical tax subsidies. State and local gov-
ernments and their instrumentalities, which own fully
two-thirds of all public stations,* have also provided im-

* Appellees disparage the importance of these reservations (Br.
3 n.6). It is clear, however, that without the reservations vir-
tually all available VHF television stations in major cities would
have been occupied by commercial broadcasters. See Gov't Br.
12-13 & nn.17, 20. In fact, only 15 (about 5%) of a total of
over 290 public TV stations operate on nonreserved channels. Of
these, 4 are VHF stations and 11 are UHF stations. Only 4 of the
15 operate in major markets (channels 13 and 31 in New York City,
ch. 17 in Buffalo, and ch. 9 in Kansas City, Mo.). The remainder
are: ch. 65 in New Haven, Conn., ch. 47 in Peoria, Ill., ch. 49 in
Muncie, Ind., chs. 29 and 31 in Paducah and Owensboro, Ky., ch. 6
in Sedalia, Mo., ch. 12 in Cheyenne, Okla., chs. 49 and 30 in Colum-
bia and Rock Hill, S.C., and chs. 6 and 46 in Harlingen and Killeen,
Texas. See 47 C.F.R. 73.606; CPB, 1982 CPB Public Broadcasting
Directory 66-68. It should also be pointed out that in New York City,
where no VHF reservation was made, commercial stations did oc-
cupy all available VHF stations. In order to create a noncommercial
VHF outlet for New York City, extraordinary efforts had to be
made; eventually, in 1962 a noncommercial group was allowed to buy
—for 5.75 million—a commercial station assigned to Newark, N.J.!
See the account in E. Barnouw, The Image Empire 199-200 (1970).

3 Appellees’ statistics (Br. 26 & n.37) regarding the ownership
of public broadcasting stations are incorrect or misleading. The
figure of 1400 stations includes radio stations ineligible for CPB
grants. These are stations that operate “only part-time, at very low

4

portant subsidies. Direct government assistance now
totals 59% of public television income and 67° of public
radio income. See Gov’t Br. 11-21. The primitive educa-
tional broadcasting of the 1950s has grown into the pub-
lic broadcasting system of today due in very large meas-
ure to this governmental support.‘

power, or with a very low budget.” Carnegie Commission, A Public
Trust 40 (1979). As noted in our opening brief (at 20-21 & nn.43-
45), two-thirds of all public television stations and nearly three-
fifths of the eligible public radio stations are licensed either to state
or local governments, state-appointed authorities or commissions, or
public colleges and universities. (In 24 states, all public TV stations
are licensed to such governmental licensees.) Thus, it is not true that
“{t}he majority of CPB recipients are private, community-based ed-
ucational corporations” (Br. 26 n.87). Appellees assert that 82%
of the public stations receiving CPB grants were operated in 1981
by “private nonprofit educational foundations or institutions of
higher learning” (ibid.) We are unable to replicate the arithmetic
that produced this figure. Even on its face the statement obscures
the fact that the overwhelming majority of university and college
licensees are public institutions operated by state or local govert-
ments or their instrumentalities (e.g., boards of regents). See CPB,
1982 CPB Public Broadcasting Directory 18-50, 66-68.

* Attempting to minimize the importance of federal support for
public broadcasting, appellees state (Br. 25) that public broadcast-
ing “flourished for almost fifty years without a penny of federal
aid.” But the Carnegie Commission writing in 1967 took a very
different view: “[L]ocal stations, as they are now constituted, are
inadequate for the ends they must serve. There are not enough of
them. Those that exist are inadequately staffed, inadequately
equipped, and inadequately financed. Deficiencies affect the entire
system; even the few stations that provide leadership for educa-
tional television wage a daily struggle for survival.” (Carnegie
Commission, Public Television—A Program for Action 383 (1967).)

Appellees point (Br. 3) to the fact that hundreds of noncommer-
cial stations were begun in the early days «* radio. More instruc-
tive, however, is the fate of these stations. By 1934, “[mJost * * *
had encountered insuperable financial difficulties and discontinued
operation.” Comment, The Legal Problems of Educational Televi-
sion, 67 Yale L.J. 639, 642 (1958).

Appellees repeatedly suggest (see Br. 8, 9 n.19, 23, 41) that a
significant segment of public broadcasting does not receive funds
from the Corporation for Public Broadcasting. But as we made
clear in our opening brief (at 26), at last count all public television

5

What we have here, then, is a complex and sophisti-
cated compact between the public and private sectors.
The limits placed on public broadcasters are important
constituents of an affirmative goal, not extraneous re-
strictions on the freedoms of ordinary “independent jour-
nalistic entities.” They are designed to assure that the
public broadcast system will achieve the ends for which it
was created, Government and private contributors rightly
expect that public stations will remain true to their pub-
lie mission, that they will adhere to high standards of
program content, that they will not duplicate what is
aired on commercial! stations, and that they will serve all
segments of the public rather than seeking to promote a
narrow set of private goals.

Similarly, Section 399 is not, as appellees suggest, a
superfluous encumbrance appended to public broadcasting
for base motives. Rather, it is an integral element of
public broadcasting’s public charter. It helps to ensure
that public stations remain “public” and serve their in-
tended purpose. The use of public stations to further
partisan political and ideological ends would be a breach
of public broadcasting’s compact with the government
and the people. Congress has repeatedly expressed its
judgment that public broadcasting can fulfill its public
purposes only if it refrains from electioneering and edi-
torializing. Allowing such practices, in Congress’s view,
would invite government pressure; would unfairly devote
public moneys to the propagation of private views; would
place an official imprimatur on certain views while dis-
favoring others; and would jeopardize the broad public
support that public broadcasting requires. As Senator
Hollings put it when he opposed amendment of Section
399 in 1978, “if we allow editorializing or sponsorship
of political candidates, it could be the death knell of pub-
lie broadcasting.” 124 Cong. Rec. 30059 (1978).

stations and 90% (i.¢., all but 24) of the eligible public radio sta-
tions received such aid. Those radio stations ineligible for CPB aid
are small, low power, part-time operations. See Gov't Br. 18 & n.838,
26 & n.54.

6

B. Appellees play a coy game of hide-and-seek with
this institutional and regulatory universe surrounding
public broadcasting. They are careful never explicitly to
challenge its validity. (In fact, when they argue that
Section 399 is unnecessary, restrictions on broadcasters
such as the fairness doctrine—restrictions that would
plainly be invalid as applied to ordinary “independent
journalistic entities” —come leaping out of the closet to
demonstrate that Section 399 is superfluous. | But the
First Amendment standard used by appellees to test the
“editorializing” part of Section 399—that the govern-
ment must’ “demonstrate that [the prohibition] is the
most narrowly drawn regulation necessary to further a
compelling state interest” * (Br. 13), and that the govern-
ment must eschew any restriction that constitutes “the
slightest intrusion into the licensee’s journalistic inde-
pendence” (Br. 7)—plainly casts doubt on restrictions

5 As set out in our opening brief (at 30-32), Red Lion Broadcast-
ing Co. v. FCC, 395 U.S. 367 (1969) authoritatively rejects the
assertion that the conventional “compelling state interest” test is
apposite for broadcasting. Appellees attempt to distinguish Red
Lion (Br. 18-20) by contending that the fairness doctrine does
not limit a broadcaster's right to “air{) its own opinions” (Br. 19)
and thus does not restrict the right to speak. This very contention
was rejected in Miami Herald Publishing Co. Vv. Tornillo, 418 US.
241 (1974), where it was argued that a statute requiring a news-
paper to print replies by political candidates it had criticized or
attacked did not “amount to a restriction of {the paper’s) right to
speak” because the paper was not precluded from saying anything
it wished (418 U.S. at 256). The Court wrote (ibid.) : “Compelling
editors or publishers to publish that which ‘ “reason” tells them
should not be published’ * * * operates as a command in the same
sense as a statute or regulation forbidding [the paper) to publish
specified matter.”

Appellees (Br. 18-19) rely upon the statement in Red Lion (395
U.S. at 396) that “refusal to permit the broadcaster to carry &
particular program or to publish his own views * * * would raise
more serious First Amendment issues.” (Appellees (Br. 18-19)
delete the word “more” from this statement.) However, under
Section 399, a public station is free to express ali views, but like
other speakers whose opinions are entitled to equal weight. and
respect, it cannot describe any particular view as the “official” view
of “the station.”

7

such as the fairness doctrine, the “right to reply” rule,
and the “no propaganda” rule.

The point is vividly illustrated by appellees’ stance
with respect to the portion of Section 399 that forbids
public broadcasters—-unsubsidized or subsidized—from
“support|ing|] or oppos|ing] any candidate for political
office.” Appellees’ suit as originally framed attacked Sec-
tion 899 in its entirety. However, in the district court,
appellee Pacifica eventually disclaimed any intention to
endorse political candidates. This enables Pacifica now
to claim piously that the “ban on political endorsements
is not at issue here” (Br. 9 n.20). Apparently conceding
our principal point—that it is legitimate for Congress to
act to preserve the nonpartisan nature of public broad-
casting—they then use the existence of this ban to show
that Congress’s fear of partisanship was unfounded be-
cause this provision of Section 399 “would fully protect
against such concerns” (Br. 22 n.31). But if appellees
are also correct in their assertion that, “{b]y prohibit-
ing the broadcaster from expressing its opinions on pub-
lic issues, the statute muzzles one of the very institutions
that the Constitution selected to info: society and keep
it free” (Br. 10), surely the point must apply a fortiori
to the broadcaster’s opinicus on who should be elected to
public office. If “the untrammeled freedom of the media
to express its views is * * * indispensable to its dual
societal responsibilities as educator and watchdog” (Br.
15)—and applies in an undifferentiated way to public
broadca.ters—why isn’t it “indispensable” to leave the
broadcaster ‘“untrammeled freedom” to give “its views”
on the central question of democracy: who should be
elected? In fact, it is clear that the First Amendment
theory deployed by appellees to invalidate the ban on
“editorializing” in Section 399 must apply to invalidate
the special ban on editorializing for or against candi-
dates.°

*It is equally clear that appellees’ protestations with respect to
the latter prohibition are wholly tactical, good for this day and this
lawsuit only.

8

The point illustrates the central problem of appellees’
submission in this Court. They invent a system of public
broadcasting consisting of “independent journalistic en-
tities” possessing ‘“untrammelled freedom” to do what-
ever management wishes—except for the isolated and
crude restriction on editorializing. At the same time they
dismiss this restriction as unnecessary by positing the
existence of a pervasive regulatory structure—designed
for the ‘momentarily) valid purpose of maintaining a
public broadcasting system that is fair and nonpartisan—
forgetting that this structure is also quite inconsistent
with the broadcaster’s “untrammeled freedom.” They
go on to disparage the public’s contribution to public
broadcasting in order to obscure the fact that that con-
tribution has a substantive purpose—to create a special
sort of broadcasting that otherwise would noi exist. And
this point has to be obscured so that the so-called “re-
strictions” on public broadcasters—among them Section
399’s ban on editorializing and electioneering—will not
be seen for what they are: affirmative elements neces-
sary to the existence of that sort of broadcasting. The
point of the restrictions—‘“you may not operate for
profit”; “you may not advertise”; “you must be ‘cultural’
and ‘educational’’’; “you may not become a partisan
voice”—is not to restrict the independence of “independ-
ent journalistic entities,” but to help create—to conjure
forth—a sort of institution that the public could not
otherwise have.

Our central submission is that Section 399 must not
be viewed in isolation, in the abstract. Its meaning, and
thus its validity, must be assessed in the context of the
special sort of institution that is public broadcasting—
publicly fostered and publicly funded in order to achieve
public purposes. In that context, prohibiting public li-
censees from partisan electioneering and editorializing
and from giving an official imprimatur to selected pri-
vate views and opinions makes eminent sense and in no
way prejudices the public interest in having access to
any and all views and opinions on all issues of general
concern.

9

II

Appellees grossly overstate the impact of Section 399
(e.g., Section 399 “suppress[es] speech on the basis of
its content” * and “infringes upon the paramount right
of the public to receive information from a diverse range
of sources” (Br. 10) ; Congress acted on the premise that
it “can shape [noncommercial broadcasting] in its own
image by banning the expression of any controversial
views” (Br. 11)). In fact, Section 399’s prohibition is
both modest and sensible. It prohibits public stations
from stating or otherwise indicating that a particular
view is “the official opinion of the licensee or its man-
agement” (In re Complaint of Accuracy in Media, Inc.,
45 F.C.C.2d 297, 302 (1973)). It merely precludes them
from saying, “this editorial represents the views of this
station or its management.” *

What Section 399 prohibits—the official endorsement
of a particular viewpoint by the management of a public
station—would, in the context of public broadcasting,
often be confusing and misleading. One portion of the
audience would assume that a “public” station’s views
were those of the federal, state, or local government.
Others would think that the station was a wholly inde-
pendent authority. In a particular case, each view could
be dramatically wrong. Few viewers or listeners under-
stand who “runs” their local public station, the outside

7To say that the ban on editorializing “suppress[es} speech on
the basis of its content” constitutes a play on words. Section 399
does regulate certain forms of speech; but it is not content-related
in the sense that it places restrictions upon the expression of a
particular “viewpoint” or discussion of a particular “topic.” Con-
solidated Edison Co. Vv. Public Service Comm'n, 447 U.S. 530, 537-
538 (1980). Section 399 does not single out ideas or viewpoints for
favorable or unfavorable treatment. It merely says that the man-
agement or owners of the stations may not endorse any particular
idea or opinion as the “official” idea or opinion of “the station.”

® As appellees ac.-nowledge (Br. 37), “the very same opinions that
cannot be expressed by the licensee could be broadcast if they were
mouthed by a station commentator, by a guest being interviewed,
or by a person who simply walks in off the street.”

10

forces that influence management’s expressed views, or
how and why management came to be given the oppor-
tunity to use the public airwaves and public funds to
express those views.

Amicus ACLU argues (Br. 22) that “[t]he audience
could be protected from any confusion over whether edi-
torials by noncommercial broadcasters are expressions of
governmental views by a disclaimer to the contrary, ac-
companying each editorial.”* But due to government
ownership and funding of many stations, such a blanket
disclaimer could be highly misleading. On the other
hand, an accurate explanation of the intricate relationship
between a public station and government would be com-
plicated and confusing. Section 399’s prohibition of edi-
torializing eliminates audience confusion by simpler
means and without imposing an appreciably greater re-
striction upon a licensee’s expression. Instead of requir-
ing a public station to explain its relationship with gov-
ernment, the broadcaster may present any and all views—
including his own—but without an official endorsement.
The views can then attract whatever interest or follow-
ing they merit.’° That seems the very essence of a free
marketplace of ideas.

Appellees suggest (Br. 19) that Section 399—unlike
the fairness doctrine—limits what a licensee may say

* Cf. 47 U.S.C. 317(a), (c) (broadcast station must make diligent
effort to learn and must announce true sponsor of paid broadcast).

10 There is no inconsistency between Section 399 and the FCC’s
encouragement of editorializing by commercial stations (compare
Br. 16-18, 36-37). Because commercial stations are privately owned
and not dependent upon government subsidies, they are far less
susceptible to government influence. Since they must make a profit
to survive, they do not offer a publicly-funded target for those inter-
ested in propagandizing. And since commercial stations are sus-
tained by private revenue, no one can legitimately complain that his
tax dollars are being used to subsidize the commercial broadcast-
er’s partisan opinions. Furthermore, commercial stations have not
been fostered and protected to serve as a community resource in the
same way as their noncommercial! counterparts. Finally, the public
understands that commercial stations are private institutions and
can weigh their editorials accordingly.

11

rather than insuring access to a wide variety of views.
In fact Section 399 serves the same purpose as the fair-
ness doctrine: it promotes equal access for all viewpoints.
Appellees state (Br. 37) that the station management’s
voice is “the one voice that most rightly should be heard.”
Why? This Court made it clear in Red Lion Broadcast-
ing Co. Vv. FCC, 395 U.S. 367, 389 (1969), that “as far as
the First Amendment is concerned those who are licensed
stand no better than those to whom licenses are refused.”
Is the management of a public station entitled to a prefer-
ence because it has received the further benefit of broad-
casting on a special reserved frequency and is thereby
protected from the competition of the commercial world?
Or because the public station receives and in most in-
stances depends upon public funds? *

Finally, we reiterate one further point. Section 399
does not “suppress” the publishing of the information
that the management of Pacifica endorses a particular
viewpoint. Section 399 leaves Pacifica exactly where all
other citizens are—free to propagate its endorsements in
all media except the subsidized public radio stations of
which it happens to be the trustee. Indeed, it can edi-
torialize to its heart’s content even on its stations, if
only it is willing to forego the federal trough. Given
Pacifica’s characterization of federal aid as being of
neglible importance (“barely one-fifth of noncommercial
broadcasting’s income and * * * less than half the sum
raised from wholly private, non-governmental sources”
(Br. 25-26) ), refusing Corporation for Public Broadcast-
ing grants should not represent a major sacrifice.

III

In our opening brief, we argued that Congress pro-
moted First Amendment values by fostering and sustain-

11 Appellees assert (Br. 12) that Section 399 is unconstitutional
because “[t)he remedy for any feared imbalance in the marketplace
of ideas is more speech, not less speech.” In the present context,
this is an empty slogan. Since there can be but one official “sta-
tion” viewpoint on an issue, how can the remedy be more speech?
Every view cannot be “official.”

12

ing an independent public broadcasting system. With
detailed references to the legislative history, we showed
(Br. 21-28) that Congress designed Section 399 to pro-
tect the independence of that system. More specifically,
we explained (Br. 33-40) that Section 399 was designed
to serve a variety of important interests: discouraging
the capture of public stations by narrow partisan or
ideological groups; protecting the central mission of these
stations—providing the public with a diverse and ex-
cellent programming unavailable on the commercial air-
waves—from the embroilments attendant on the propaga-
tion of partisan ideological and political ends; protecting
against the use of public stations for guvernment propa-
gandizing; and preventing the use of taxpayer money ‘to
promote private views.

Ignoring our discussion of the legislative history, ap-
pellees (Br. 21-24; see also CBS Br. 28-29) respond that
Section 399 was enacted solely for the “illegitimate pur-
pose” of protecting incumbents against editorial criti-
cism. The “evidence” adduced for this ugly charge (Br.
22 & n.82) consists of four statements in the debates.
Two of these turn out to have been made by representa-
tives who voted against Section 399 and the Public Broad-
casting Act; the other two are innocuous.'* Surely this

12118 Cong. Rec. 26417 (1967) (votes of Reps. Devine and
McClure).

18 Ropresentative Springer (113 Cong. Rec. 26387-26388 (1967) )
expressed his opposition to political endorsements by noncommercial
stations, a practice appellees purport not to defend. Representative
Keith (118 Cong. Rec. 26391 (1967)) was making the valid point
that an administration film promoting its legislative program could
have been used against opposing congressmen. The broadcasting of
such federal government propaganda on public stations is just the
mischief that Section 399 was properly designed to prevent.

Appellees’ argument is not bolstered by its citation of secondary
sources and a lower court opinion that rely on these same state-
ments (Appellees’ Br. 24 n.84; see also CBS Br. 29 n.57; ACLU
Br. 21 n.11).

CBS cites three additional statements (Br. 29 n.56), including
two by members of Congress who did not support the bill (113
Cong. Rec. 26417 (1967) (vote of Rep. Moss) ; 118 Cong. Rec. 12992

13

is an inadequate basis for impugning the motives of the
hundreds of members of Congress from both political par-
ties who enacted Section 399 in 1967, who voted to retain
it in 1978, and who gave it its current form in 1981.

A. When they finally turn to the actual reasons that
animated Congress in enacting, retaining, and amending
Section 399, appellees urge this Court cavalierly to dis-
miss Congress’s concerns on the ground that these were
“entirely speculative” and find “no support in the rec-
ord” (Br. 24). We take this to mean that Section 399

(1967) (remarks of Sen. Thurmond) ). The third, which is unobjec-
tionable, is discussed in vur opening brief (at 22 n.46). (See also
ACLU Br. 21 n.11 citing same statement.) CBS seems to suggest
(Br. 29 n.57) that any expression of congressional concern about
controversial editorials on public stations was illegitimate. But
there would be good cause for concern if such editorials evidenced
capture of public stations by narrow ideological groups or if such
editorials resulted from political interference. And the use of tax-
payers’ money to pay for any such editorializing is certainly grounds
for misgivings.

14 Appellees’ other major argument (Br. 31 & n.45, 33) concedes
that Congress’s concerns were real but asserts that they were—
apparently unbeknownst to Congress—already taken care of by the
fairness doctrine and by Section 399’s ban on political endorsements.
We have already commented (see pages 6-8, supra) on the ironies
created by such tactical deployment of legislative and administra-
tive measures that are plainly invalid under appellees’ own sug-
gested First Amendment standards. In any event, we do not think
it appropriate for the courts to do what the court below did—that
is, to make its own ad hoc judgment about what exact “mix” of
remedies is appropriate to avert the evils apprehended by the legis-
lature. Congress was quite reasonable in concluding that the fair-
ness doctrine is not a substitute for the command of Section 399
that publicly funded public stations not give official endorsement to
particular views or to particular candidates.

Appellees also reiterate the suggestion (Br. 6-7, 32) that Con-
gress’s concerns in 1967 were misplaced because Congress had
already solved the problem of political influence on public broad-
casting by insulating the Corporation for Public Broadcasting from
politics. In fact, Congress was prescient in regarding that insula-
tion as insufficient. In 1979 the Carnegie Commission concluded:
“Since the federal government legislated operating support for pub-
lic broadcasting in 1967 the industry has witnessed episode after

14

is unconstitutional unless it is shown that the evils ad-
dressed by Section 399 had already occurred. But no
such absurd rule exists. Congress in 1967 was setting on
foot a new and costly public enterprise. Of course it was
“speculating” about risks to be avoided and evils to be
guarded against. That is what Congress is paid to do.
In this case these risks and evils related to matters with
which elected officials are all too familiar: the use of
money to influence and the attraction of money for those
ready to be influenced. Broadcasting is an especially in-
viting and valuable target for such influence. Public tele-
vision and radio stations are powerful tools in the politi-
cal arena. Two thirds of these stations are actually
owned by agencies of state and local government; 59%
of public TV income and 67% of public radio income
comes from direct government grants. The “speculation”
that, in the absence of Section 399, decisionmaking with
respect to what editorial positions to take and what can-
didates to endorse could be strongly (and, what’s worse,
invisibly) affected by the federal, state and local govern-
ment officials exercising these powers and holding these
purse-strings—or by fear of them—is powerfully plausi-
ble. The converse ‘“speculation”—that the funding proc-
ess would be politicized if recipients engage in partisan
ideological and political editorializing—is equally realis-
tic. Abuses have, in fact, been documented.**

episode seerning to justify the fears of interference expressed by
many stations when federal support was first proposed.” Carnegie
Commission, A Public Trust 101 (1979).

15 See Gov't Br. 24, 36-37 & n.66.

Appellees descend to the argument that fear of government influ-
ence makes no “intuitive sense” (Br. 33) because stations wishing
to ingratiate themselves with government will find it difficult to
figure out what is the correct government “line” or which govern-
ment unit to please. This is like saying that bribery is no problem
as long as the bribers’ instructions are ambiguous or as long as
there are lots of people of different views passing out bribes.

Appellees maintain (Br. 82 n.46) that preventing state and local
government from influencing the editwrial positions of public sta-
tions was not one of the purposes of Section 399. The legislative

15

Nor should the concern that public TV and radio could
become an inviting target for “capture” by ideologically
and politically partisan groups be casually dismissed.’
Appellees assert that no such capture had been “recorded”
(Br. 30) (recorded how? where?) before Section 399 was
enacted. But Section 399 was enacted at the very time
when the country was first committing itself to the propo-
sition that noncommercial broadcasting should become a
strong, publicly supported and massively financed enter-
prise. Congress’s “speculation” that this commitment
would make public broadcasting a new and seductive
target was surely not frivolous.

B. In answering our contention that Section 399 is
also justified because it prevents the use of tax dollars
to subsidize private propagandizing, appellees argue that
“every medium is infused with some form of direct or
indirect [federal government] support” and that “[i]f
the existence of such support were deemed sufficient to
justify restricting the recipients’ freedom of speech, the
First Amendment would soon become meaningless” (Br.
27). But appellees misconceive our submission. We do
not suppose that the existence of government “support”

history of Section 399 shows that this was a clear congressional
concern (see Gov't Br. 24-25 & n.53).

The assertion that Section 399 seeks illegitimately to “silence”
the voice of state and local government (Br. 32 n.46; see also PBS
Br. 18 n.18) is absurd. We agree that state and local government
officials “retain the right to communicate their opinions on im-
portant public issues” (Br. 33 n.46). Section 399 in no way narrows
that right. What it prohibits is the use of a public station to en-
dorse such an opinion (or such an official) as “the” opinion (or can-
didate) of “the station.”

16 Some might conclude from published accounts that Pacifica’s
licensees themselves are hardly nonpartisan. See N.Y. Times,
Feb. 28, 1977, at 26, col. 1; N.Y. Times, Feb. 22, 1977, at 62, col. 1;
N.Y. Times, Feb. 12, 1977, at 1, col. 1; N.Y. Times, Mar. 24,
1975, at 34, col. 1; N.Y. Times, June 12, 1971, at 35, col. 6; N.Y.
Times, Sept. 4, 1969, at 95, col. 3. These accounts in any event
indicate that Pacifica’s licensees have never been inhibited by
Section 399 from the robust presentation of controversial views.

16

in any form automatically creates a right in the govern-
ment to “suppress” the recipient’s freedom of speech.
Nor do we argue that tax funds unfairly “subsidize” the
private views of any person who is supported—for in-
stance through welfare or social security— by federal
funds. We make only a narrow—but important—point.
When Congress, in order to increase the diversity of the
media, commits federal funds to the support of special
forms of broadcasting that the private sector cannot pro-
vide, it has a special responsibility to assure that it is
the aim of diversity that is served, and that tax dollars
will not be captured to propagate a narrow range of pri-
vate viewpoints. Public broadcast stations are a scarce
and powerful resource. Most listeners can receive only
one public TV station (see Gov’t Br. 18 n.36). In the
circumstances we believe that Congress was completely
justified in concluding that it would be most unfair to
devote a listener’s tax dollars to the support of that sta-
tion only to have that station use its privileged position
to propagate as “official” a position with which that lis-
tener disagrees.’’

C. Appellees’ final onslaught on the purposes of Sec-
tion 399 (Br. 34-40) consists of a litany of complaints
that the statute either prohibits too much or too little.
Thus Section 399 is said to be too broad because it “pro-
hibits editorializing on all issues, not just those express-
ing partisan or ‘pro-government’ opinions” (Br. 34-35) —
ignoring the fact that a statute prohibiting only “pro-
government” editorials would plainly be void as both

17 The situation of the viewer is completely different from the
person who dislikes the editorial position of a magazine that enjoys
low postal rates; that person can easily shift to another magazine
that enjoys the same benefit and whose editorial position he prefers.

When the federal government supports political candidates
through the Presidential Campaign Fund, the funds are widely
distributed so that the “scheme involves no compulsion upon indi-
viduals to finance the dissemination of ideas with which they dis-
agree.” Buckley v. Valeo, 424 U.S. 1, 91 n.124 (1976).

17

content-related and vague.'* On the other hand, Section
399 is attacked as underinclusive because it “outlaws only
the licensee’s editorial speech and imposes no restriction
on any other aspect of the broadcaster’s public affairs
programming” (Br. 36; emphasis in original) —ignoring
the fact that under appellees’ own analysis any statute
that was broader than Section 399 in regulating propa-
gandizing would be a fortiori unconstitutional.’® Finally,
appellees complain (Br. 38) that Section 399 is under-
inclusive because its prohibition on editorializing applies
only to stations that receive CPB funds—ignoring the
fact that unsubsidized stations are clearly less susceptible
to government influence than subsidized ones.”

In fact, no statute could survive appellees’ method of
analysis, which (under the guise of least restrictive al-
ternative analysis) simply invites the Court to engage in
an illegitimate ad hoe second-guessing of the details
of the regulatory scheme Congress adopted.*"

18 Appellees themselves acknowledge that such a statute would be
unconstitutional (Br. 34 n.48).

19In fact, the line drawn by Congress in limiting the prohibition
to official “editorializing” is wholly sensible. The fairness doctrine
can guarantee that many views will be represented on a station, but
cannot manufacture more than one “official” view. If an “official”
station view is to exist at all, it cannot be “balanced” or “objective”
or “unbiased.”

20 We repeat that there are no public television stations and only
24 full-service public radio stations that receive no CPB funds.

Appellees’ suggestion (Br. 41 n.56) that the 24 full-service sta-
tions not subsidized by CPB funds in fact receive significant fund-
ing from other federal sources is not supported by the sources
they cite or by anything else in the record.

21 For the same reason, appellees’ equal protection attack (Br.
40-42) —which largely replicates the recital of over- and underinclu-
sivenesses just discussed——is without merit.

Appellees’ equal protection argument relies on Carey v. Brown,
447 U.S. 455 (1980), and Police Department v. Mosley, 408 U.S.
92 (1972). Those cases concerned laws restricting expression
based upon its subject matter. In both cases, the Court struck
down provisions prohibiting nonlabor picketing. In Carey the Court
stated (447 U.S. at 461; emphasis added) that the statute “ac-

18

IV

In our opening brief, we argued (at 42-47) that Sec-
tion 399 is a valid exercise of Congress’s Spending Power.
We noted that the statute permits public stations to edi-
torialize but withholds subsidies from stations that do so.

Relying on Perry v. Sindermann, 408 U.S. 593 (1972),
Speiser Vv. Randall, 357 U.S. 513 (1958), and similar
cases, appellees maintain (Br. 42-47) that Section 399
impermissibly conditions the receipt of a benefit on the
relinquishment of a constitutional right. As we explained
in our opening brief (at 45-46), however, this case does
not “fit{] the Speiser-Perry model” (Regan v. Taxation
With Representation, No. 81-2338 (May 23, 1983)
(“TWR”), slip op. 5).** In those cases, the benefits did
not operate as a subsidy of the recipients’ expression.”

cord{ed] preferential treatment to the expression of views on one
particular subject.” In Mosley the Court observed (408 U.S. at 95;
emphasis added) that “[t}he central problem with [the] ordinance
is that it describes permissible picketing in terms of its subject
matter.” For this reason, the Court concluded (Carey, 447 U.S. at
461-462) that the laws had to be “finely tailored to serve substan-
tial state interests, and the justifications offered for any dis-
tinctions * * * [had to be] carefully scrutinized.” See also Mosley,
408 U.S. at 98-99, 101. Section 399, on the other hand, does not
draw distinctions based upon subject matter. It merely proscribes
the official endorsement of views by the management of publicly
funded noncommercial stations.

Since the district court did not decide the Equal Protection issue
(see J.S. App. 18a-20a), this Court need not address it. Ramsey v.
Mine Workers, 401 U.S. 302, 312 (1971); Adickes v. S.H. Kress &
Co., 898 U.S. 144, 147 n.2 (1970).

22 Neither appellees nor their amici have even attempted to dis-
tinguish the Court’s unanimous decision in FCC v. National Citi-
zens Committee for Broadcasting, 436 U.S. 775 (1978), which held
that cases like Perry and Speiser do not apply to content-neutral
laws (See Gov't Br. 46).

23 Nor was there any trace of government subsidy involved in
McDaniel v. Paty, 435 U.S. 618 (1978) (see Br. 44 n.58) (statute
prohibiting clergy from serving as delegates to state constitutional
convention unconstitutional because it conditions the right to be a
delegate on relinquishment of right to free exercise of religion), or
in Sherbert v. Verner, 374 U.S. 398 (1963) (see Br. 43) (unconsti-

19

Even more important, the restrictions held unconstitu-
tional had no functional relationship to the affirmative
purposes being served by the government funding. Here,
on the other hand, Section 399 is part of a substantive
system necessary to achieve the goals to be promoted by
the government’s funding.

In our opening brief ‘at 43-45), we argued that this
case is governed by Regan v. Taxation With Representa-
tion, supra. Appellees assert (Br. 44-45) that TWR is
distinguishable because there an organization receiving
tax benefits under Section 501(c) (3) of the Internal Rev-
enue Code, 26 U.S.C. 501(c) (3), was not required to give
up those benefits in order to engage in “substantial” lob-
bying. Such an organization, appellees note, could create
an affiliate under Section 501(c) (4), 26 U.S.C. 501(¢) (4),
to carry on those activities. Appellees appear to argue
that the present case differs from TWR because here
Pacifica cannot operate two public radio stations (one
subsidized station barred from editorializing and one non-
subsidized station free to editorialize) in each city in
which it now has a license.

But in fact—and even on this highly attenuated read-
ing of TWR—Section 399 does not prevent Pacifica from
taking any editorial position on any issue in any com-
munications medium. It is free to editorialize in print,
to buy time on commercial stations, or to broadcast edi-
torials on any of its existing stations that do not receive
CPB funds. Moreover, Pacifica is not legally barred
from operating a second, unsubsidized, noncommercial
station in the cities where it now has outlets. See 47
C.F.R. 73.240(b), 73.636(b) (ownership of multiple non-
commercial FM or television stations in same area not
barred). Of course, in order to obtain additional licenses,
Pacifica would have to show that any proposed station
would serve the public interest, convenience, and neces-
sity (47 U.S.C. 309(a)) and would have to satisfy all
other licensing requirements. But Pacifica has no First
Amendment right to obtain a new license.

tutional to deny unemployment benefits to those who refuse on
religious grounds to work on Saturdays).

20

Appellees argue (Br. 46) that in exercising its Spend-
ing Power Congress can do no more than prohibit the
direct use of federal funds to subsidize editorializing.
They therefore suggest that Congress has no legitimate
right to object so long as the relatively small sums needed
to pay the direct incremental costs of producing and
broadcasting editorials are raised from other sources.
This argument makes no sense as economics or law. Fed-
eral operating funds are unrestricted and infuse the en-
tire operation. Without those funds, there might be no
staff members to write, edit, or deliver an editorial; no
station support staff; no popular programs to attract an
audience or stimulate private contributions; and no
studio, antenna, or broadcast facilities. Thus, there can
be no doubt that, absent Section 399, the federal govern-
ment would be providing a significant subsidy for edi-
torializing.* The government should not be forced to
choose between abandoning assistance for public broad-
casting and subsidizing editorializing by those groups or
persons who happen to have control of public stations.

CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.
REx E. LEE
Solicitor General

RICHARD K. WILLARD
Acting Assistant Attorney General

PAvt M. BATOR
Deputy Solicitor General

SAMUEL A. ALITO, JR.
Assistant to the Solicitor General
JANUARY 1984

2 The Court has held that use of a federally funded building for
sectarian instruction or religious worship constitutes federal aid to
religion even if the direct costs of such use (heat, lighting, etc.)
are paid from private funds. Tilton v. Richardson, 403 U.S. 672
(1971). The same principle is applicable here.

W ©. 8. coveenment pamtine orice, 1963 420014 223

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0013%3A07. Public record. Not legal advice.