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

‘ig No. 82-912.

In the

Supreme Court of the United States.

Ocroser Term, 1983. : i :

- FEDERAL COMMUNICATIONS COMMISSION, 7

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LEAGUE OF WOMEN VOTERS OF CALIFORNIA, erat. =

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+, Brief on Behalf of the American Civil Liberties Union,

Table of Contents.

Interest of Amicus ACLU

Statement of the case

Summary of argument

Argument

I. Section 399 unconstitutionally imposes govern-

mental censorship of private speech

A. Section 399 censors privately financed, private

speech

B. The incursion on first amendment rights can-

not be justified by the government's role in pub-

lic broadcasting

C. If federal grants can carry strings controlling

the se of nonfederal funds, as in section 399, no

first amendment freedoms can survive the mod-

ern regulatory environment

Il. Section 399’s censorship of speech lacks substan-

tial or important governmental interests and fails

to employ available less restrictive means

A. The government has failed to demonstrate

weighty interests served by section 399

B. The government has failed to use readily avail-

able, less restrictive means to achieve its ends

Conclusion

Table of Authorities Cited.

CASES.

American Communications Ass'n v. Douds, 339 U.S.

382 (1950)

oO won =

1]

ii TABLE OF AUTHORITIES CITED.

Assoc. Press, Inc. v. United States, 326 U.S. 1 (1945) 20

Buckley v. Valeo, 424 U.S. 1 (1976) 5, 18

Columbia Broadcasting System v. Democratic Nat'l

Comm., 412 U.S. 94 (1973) 5, 10, 10n, 16

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

447 U.S. 529 (1980) 8, 11, 22

Everson v. Board of Education, 330 U.S. 1 (1947) 23

FCC vy. National Citizens Cornmittee for Broadcasting,

436 U.S. 775 (1978) 17

First National Bank of Boston v. Bellotti, 435 U.S. 735

(1978) 5, 13, 20, 21

Fowler v. Rhode Island, 345 U.S. 67 (1945) 8n

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

U.S. 683 (1926) 6

Hannegan v. Esquire, Inc., 327 U.S. 145 (1946) 16, 21

Harris v. McRae, 448 U.S. 297 (1980) 7

Haverford College v. Reeher, 329 F. Supp. 1196 (E.D.

Pa. 1977) 14

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

2d 297 (1973) 5n, 7

Keyishian v. Board of Regents of the University of the

State of New York, 385 U.S. 589 (1967) 15

Meyer v. Nebraska, 262 U.S. 390 (1923) 15

Mills v. Alaba:ina, 384 U.S. 214 (1966) 5

Minneapolis Star & Tribune Co. v. Minn. Comm'ner

of Revenue, 103 S.Ct. 1365 (1983) 7,17

NAACP vy. Claiborn Hardware, Co., 102 S. Ct. 3409

(1982) 5

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 5, 20

Perry v. Sindermann, 407 U.S. 593 (1972) 6

TABLE OF AUTHORITIES CITED. ili

Pickering v. Board of Education, 391 U.S. 563 (1968) 6,

14, 15n

Police Dep't v. Mosley, 408 U.S, 92 (1972) 8n, 22

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) 5,

10, 15, 16, 17

Regan v. Taxation With Representation, 51 U.S.L.W.

4583 (1983) 6n,7

Roemer v. Board of Public Works, 426 U.S. 736 (1976) 23

Speiser v. Randall, 357 U.S. 513 (1958) 6

Sweezy v. New Hampshire, 354 U.S. 234 (1957) 15

Thomas v. Collins, 323 U.S. 516 (1945) 21

Tilton v. Richardson, 403 U.S. 672 (1971) 17n, 23

United Mine Workers v. Illinois Bar Assoc., 389 U.S.

217 (1967) 18

United States v. AT&T, Western Electric Co., Inc.,

and Bell Telephone Laboratories, Inc., Civ. No. 74-

1698 (D.D.C. dismissed by stipulation Jan. 8, 1982) 13

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

(1948) 1]

U.S. Civil Service Comm'n v. National Ass'n of Letter

Carriers, 413 U.S. 548 (1973) 18n

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) 13, 20,

22, 24

STATUTES.

United States Constitution, First Amendment passim

7U.S.C.A. § 36la-c 12

7 U.S.C.A. § 427 12

7U.S.C.A. § 427i 12

iv TABLE OF AUTHORITIES CITED.

7U.S.C.A. § 2011, et seq. 12

12 U.S.C.A. § 1395 12

12U.S.C.A. § 1701s 12

12U.S.C.A. § 1701x 12

12U.S.C.A. § 1706e 12

12U.S.C.A. § 1709 12

12U.S.C.A. § 1715k 12

12 U.S.C.A. § 1811, et seq. 12

12 U.S.C.A. § 2701, et seq. 12

20 U.S.C.A. § 1070 14

20 U.S.C.A. § 1071 14

20 U.S.C.A. § 2722 14

21 U.S.C.A. § 301, et seq. 12

26 U.S.C.A. § 104 12

26 U.S.C.A. § 105 12

26 U.S.C.A. § 213 12

26 U.S.C.A. § 613 (1982) 13

29 U.S.C.A. § 1001 12

39 U.S.C.A. § 101 et seq. 13

42 U.S.C.A. § 247 12

42 U.S.C.A. § 301, et seq. 12

42 U.S.C.A. § 601, et seq. 12

42U.S.C.A. § 1382 12

42 U.S.C.A. § 1395 12

42 U.S.C.A. § 1751, et seq. 12

47 U.S.C.A. §11 13

47 U.S.C.A. § 154 (0) 13

47 U.S.C.A. § 301 10, 13

TABLE OF AUTHORITIES CITED.

47 U.S.C.A. § 309

47 U.S.C.A. § 396(g)(3)

47 U.S.C. § 315(a)

47 U.S.C. § 390, et seq.

47 U.S.C. § 396(a)(1), (7)

47 U.S.C. § 396(a)(7)

47 U.S.C. § 396(b)

47 U.S.C. § 396(b-g)

47 U.S.C. § 396(c)(1)

47 U.S.C. § 396(g)(1)(A)

47 U.S.C. § 396(k)(9)(B)

47 U.S.C. § 399

47 U.S.C. § 399(a)

47 C.F.R. §§ 73.1910, 73.1920, 73.1930 (1982)

LecisLaTive History.

113 Cong. Rec. 26391 (1967)

113 Cong. Rec. 26392 (1967)

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

(Aug. 31, 1967)

1967 U.S. Code Cong. & Ad. News 1799

OTHER AUTHORITIES.

y

13

9

5n, 10, 22

9

9, 23

19n, 23

Stephen M. Barro, Federal Education Goals and

Policy Instruments, in Symposium on the Federal

Interest in Financing Schooling (M. Timpane ed.

1978)

Broadcasting (June 25, 1979)

15

24

vi TABLE OF AUTHORITIES CITED.

Canby, The First Amendment and the State Editor:

Implications for Public Broadcasting, 52 Tex. L.

Rev. 1123 (1974)

T. Emerson, The System of Freedom of Expression

(1970)

Executive Office of the President, Office of Manage-

ment and Budget, Budget of the United States Gov-

ernment, Fiscal Year 1984

Karst, Equality as a Central Principle in the First

Amendment, 43 U. Chi. L. Rev. 20 (1975)

Reich, The New Property, 73 Yale L. J. 733 (1964)

Tannenbaum and Hurst, The AT&T Agreement: Re-

organization of the Telecommunications Industry

and Conflicts with Illinois Law, 15 John Marshall L.

Rev. 463 (1982)

Toohey, Section 399: The Constitution Giveth and

Congress Taketh Away, 6 Educ. Broadcasting Rev.

31 (1972)

Van Alstyne, The First Amendment and the Suppres-

sion of Warmongering Propaganda in the United

States, 31 Law & Contemp. Prob. 530 (1966)

Wright, Money and the Pollution of Politics: Is the

First Amendment an Obstacle to Political Equality?

82 Colum. L. Rev. 609 (1982)

24n

21

13

8n

ll

13

2in

24n

21

No. 82-912.

In the

Supreme Court of the United States.

Ocroser TERM, 1983.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLANT,

v.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, et At.

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA.

Brief on Behalf of the American Civil Liberties Union,

as Amicus Curiae.

Interest of Amicus ACLU.

The American Civil Liberties Union is a nationwide non-

partisan organization of over 250,000 members, dedicated to

preserving and protecting the fundamental rights of the people

of the United States. Foremost among those liberties are the

freedoms of speech and of the press, and the ACLU has been

active in this and other courts in defense of those freedoms

against laws limiting the flow of information the First Amend-

ment was enacted to secure.

2

The law at issue here substantially abridges First Amend-

ment rights by withholding from the American people editori-

als which certain broadcasters wish to broadcast at private ex-

pense. More importantly, the theory relied on by the United

States to support the prohibition would enable the government

to infringe protected freedoms on the basis of acceptance of

any government benefit, no matter how small. Because the

law challenged here is such a direct infringement of and threat

to constitutional rights, as the Ninth Circuit recognized and as

the Department of Justice had previously understood, we sub-

mit this brief amicus curiae. *

Statement of the Case.

Appellees' initiated this lawsuit to protect their respective

First Amendment rights to express and to receive the views of

noncommercial broadcasters on issues of public interest and

importance.

The District Court ruled that 47 U.S.C. sec. 399 directly

violates these fundamental rights by banning speech clearly

protected by the First Amendment. The Court concluded that

this invasion of First Amendment freedoms is unsupported by

any compelling governmental interest. This appeal ensued.

' Appellees include the League of Women Voters of California, a non-prof-

it, non-partisan organization whose purpose is to promote political responsi-

bility through the informed and active participation of citizens in the

democratic process; appellee Pacifica Foundation, a non-profit, non-govern-

mental, educational corporation owning and operating noncommercial

educational broadcasting stations in five major United States markets; ap-

pellee Henry Waxman is a United States Congressman who regularly listens

to and views noncommercial radio and television broadcasts.

* Letters from the parties consenting to the filing of this brief are being

lodged with the Clerk.

3

Summary of Argument.

In banning editorializing by broadcasters receiving grants

from the Corporation for Public Broadcasting, 47 U.S.C. sec.

399 censors private speech. The provision does not merely de-

cline governmental subsidy for broadcaster editorials; it ac-

tually forbids the use of nonfederal monies for such editorials

once the broadcaster receives a federal grant. This incursion

on First Amendment freedoms cannot be justified by the fed-

eral government's involvement in public broadcasting. If

First Amendment freedoms can be bypassed by the simple as-

sertion of such governmental presence, few First Amendment

rights would survive in the modern environment of pervasive

governmental interaction with the private sector. In effect,

the government’s theory sanctions censorship by the carrot

rather than by the stick.

Although First Amendment limits on governmental regula-

tion differ in the broadcasting context from other arenas,

broadcast regulations still must satisfy the Constitutional re-

quirements of weighty governmental interests and means care-

fully tailored to minimize the intrusion on protected freedoms.

No such weighty governmental interests have been demon-

strated to defend 47 U.S.C. sec. 399; asserted fears of undue

governmental influence on broadcaster editorials and fears of

partisan expression by broadcasters lack foundation. More-

over, considerably less intrusive measures are available to

achieve the government's interests.

Argument.

I. Section 399 UNCONSTITUTIONALLY IMPOSES

GOVERNMENTAL CENSORSHIP OF PatvATE SPEECH.

By banning broadcaster editorializing, Section 399(a) cen-

sors private speech. The provision does not merely decline

4

governmental subsidy for broadcaster editorials; it actually

forbids the use of nonfederal monies for such editorials once

the broadcaster receives a federal grant. This incursion on

First Amendment freedoms cannot be justified by government

involvement in the creation and shape of public broadcasting.

If First Amendment freedoms can be bypassed on the basis of

such governmental presence, few First Amendment rights, if

any, would survive in the modern environment of pervasive

governmental interaction with the private sector.

A. Section 399 Censors Privately Financed,

Private Speech.

Public broadcasting in this country is neither federally

owned nor federally operated, as it is in some countries. In-

stead, noncommercial, educational broadcasting stations are

owned and operated by private nonprofit organizations, such

as Appellee Pacifica Foundation; private colleges and univer-

sities; public colleges and universities; local school boards, and

state and municipal broadcasting authorities. By forbidding

editorializing by any noncommercial educational broadcaster

receiving a federal grant from the Corporation for Public

Broadcasting, Section 399 silences the views of private and

nonfederal licensees, like the Pacifica Foundation, and pre-

cludes the use of private and nonfederal funds to produce and

broadcast such editorial views. Section 399 does not simply

place conditions on the use of federal funds; it uses the pres-

ence of federal funds to inject governmental control over the

recipient broudcaster’s ability to editorialize, using any other

funds. Thus, Section 399 forces noncommercial broadcasters

to forego non-federally financed editorial expression once their

stations receive federal grants, no matter how small, for other

purposes.

The editorial expression censored by Section 399 lies at the

heart of First Amendment. As this Court has repeatedly de-

5

clared, the First Amendment most centrally affirms the demo-

cratic commitment to free and open debate over public issues

and policies. NAACP v. Claiborn Hardware, Co., 102 S.Ct.

3409, 3423 (1982); First National Bank of Boston v. Bellotti,

435 U.S. 735, 783 (1978); Mills v. Alabama, 384 U.S. 214,

218-219 (1966); New York Times v. Sullivan, 376 U.S. 254,

270 (1964) (“central meaning of the First Amendment” is a

“profound national commitment to the principle that debate

on public issues should be uninhibited, robust, and wide

open”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (“The first

amendment affords the broadest protection to political expres-

sion”). Section 399 silences editorials — the expressed views of

the editor. Congress has thus prevented public broadcasting

stations from fulfilling their role as “private journalists,” con-

sistent with their trusteeship over the airwaves, Columbia

Broadcasting System v. Democratic Nat'l Comm., 412 U.S.

94, 110-111 (1973), and Congress has deprived the audience of

the expression about public affairs that the audience has a

right to receive. Red Lion Broadcasting Co. v. FCC, 395 U.S.

367, 390 (1969). This outright curtailment of expression is not

mitigated by the continued rights of others besides the broad-

caster to express their views over the air.’ Indeed, as this

Court has declared, “serious First Amendment issues” would

be raised if a broadcaster is refused to permit “to carry a par-

ticular program or to publish his own views.” Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 396 (1969) (emphasis

added).

*The broadcaster receiving federal funds may air the views of others,

labeling those views as editorials and making rebuttal time available, con-

sistent with the Fairness Doctrine, see 47 U.S.C. sec. 315(a), so long as the

broadcaster assures that “the surrounding facts and circumstances of any

such aired views do not indicate that such views are represented or intended

as the official opinion of the licensee or its management.” [n re Complaint of

Accuracy in Media, Inc., 45 F.C.C. 2d 297, 302 (1973).

6

Such serious First Amendment issues are raised by Section

399, despite the Government's effort to characterize this

governmentally induced waiver of constitutionally protected

speech merely a Congressional “determin[ation] that it will

not subsidize editorializing.” Brief for the United States, FCC

v. League of Women Voters of California, at 42. Section 399

is not a refusal to subsidize noncommercial broadcaster editor-

ializing; it is a refusal to permit it.°

Section 399 conditions federal funds not simply on restric-

tions as to their usage, but on the broadcaster's waiver of con-

stitutionally protected expression, financed by other sources.

Thus, Section 399 abrogates the rule that the government may

not use its powers to grant or withhold benefits to infringe on

fundamental freedoms. Pickering v. Board of Education, 391

U.S. 563, 568 (1968); Speiser v. Randall, 357 U.S. 513, 518

(1958); Frost & Frost Trucking Co. v. Railroad Comm'n, 271

U.S. 583, 593-594 (1926). Even where the government may

deny a benefit, it may not do so because of an impermissible

reason, such as a desire to suppress disfavored speech. See

Perry v. Sindermann, 407 U.S. 593, 597 (1972). Nor may the

government use its power to grant a benefit to deprive private

parties of their constitutional rights. Speiser v. Randall, 357

U.S. 513, 518 (1948). And yet Section 399 seeks to deploy the

federal grants process to deprive noncommercial broadcasters

of their protected freedom to express views on public issues;

the provision is not merely a governmental refusal to subsidize

that expression.

*The government is not entirely free to refuse to subsidize the exercise of

private rights; where that refusal effectively denies those rights, constitu-

tional protections may well arise. Regan v. Taxation With Representation,

51 U.S.L.W. 4583, 4587 (1983) (Blackmun, J. concurring) (Congress may

decline to accord tax-exempt status for organization that lobbies but may not

preclude alternate channels for that protected First Amendment activity).

-

Even for noncommercial broadcasters having associations

with local or state governments — broadcasters like public

universities, municipal authorities, or school boards — Section

399 amounts to a greater governmental denial that a mere

refusal to subsidize broadcaster editorials. Instead, Section

399 prevents these broadcasters from editorializing with the

use of nonfederal funds, once the broadcasters accept a federal

grant from the Corporation for Public Broadcasting. Through

Section 399, the federal government has leveraged its financial

contribution to public broadcasting, however small a fraction

of the broadcaster's budget, into control over that entire

budget. Private monies and state and local monies alike are

restricted from editorial use by the broadcaster receiving a

federal grant. Private editorial speech and public — but non-

federal — editorial views alike are affirmatively denied air-

time and denied to the audience. Section 399 is not merely a

refusal by the government to remove obstacles “not of its own

creation;” the provision “place{s] obstacles in the path” of

broadcasters’ freedom of speech. Harris v. McRae, 448 U.S.

297, 316 (1980). See also Regan v. Taxation with Representa-

tion, 51 U.S.L.W. 4583, 4586 (1983).

Only noncommercial broadcasters can be blocked by this

obstacle. Commercial broadcasters retain the right to editori-

alize, as do editors of newspapers and magazines. Thus, non-

commercial broadcasters as a group of speakers are selectively

denied the right to address audiences on “public issues.” In re

Complaint of Accuracy in Media, Inc., 45 F.C.C.2d 297, 302

(1973). Such differential treatment of expressive media bur-

dens the First Amendment. Minneapolis Star & Tribune Co.

v. Minnesota Comm'ner of Revenue, 51 U.S.L.W. 4315,

4317-4318 (March 29, 1983) (in this respect, Section 399, as a

regulation “curtail[ing] expression of a particular point of

view on controversial issues of general interest is the purest ex-

ample of a ‘law abridging the freedom of speech, or of the

8

press.’ A regulation that denies one group of persons the right

to address a selected audience on ‘controversial issues of public

policy’ is plainly such a regulation.’ Consolidated Edison

Co. v. Public Service Comm'n, 447 U.S. 529, 2338 (1980) (Ste-

vens, J., concurring).*

If the Congressional goal were simply to avoid subsidizing

the editorial speech of broadcasters, far less intrusive means

are available. Separate accounting for the federal and non-

federal funds is already a technique routinely used to secure

legitimate government purposes elsewhere, consistent with

Constitutional guarantees. See infra at 31. Section 399 in

contrast extends the thumb of governmental support onto the

entire broadcast activities of public stations receiving a federal

grant, and at minimum violates the constitutional prohibition

against overbroad restrictions on fundamental freedoms.

B. The Incursion on First Amendment Rights Cannot

be Justified by the Government's Role in

Public Broadcasting.

The Government argues that the public nature of public

broadcasting involves a commitment to a form of public

broadcasting that justifies the Congressional ban on broadcast-

er editorializing. Brief for the United States, FCC v. League

of Women Voters of California, No. 82-912, at 6-7, 9-22,

33-34. Thus, the government claims that public broadcasting

is “the product of a national commitment, financed by gov-

ernment,” Brief for the United States at 6, and the kind of

public broadcasting the Government wants does not include

‘The differential treatment of noncommercial and commercial broadcast-

ers in this regard also may present a violation of the guarantee of Equal Pro-

tection. See Police Dep't v. Mosley, 408 U.S. 92, 95 (1972); Fowler v. Rhode

Island, 345 U.S. 67 (1945). See generally Karst, Equality os a-Central Prin-

ciple in the First Amendment, 43 U. Chi. L. Rev.:20 (1975).

9

broadcaster editorials. This argument mistakes both the ac-

tual nature of the public broadcasting endorsed by Congress

and the scope of Congressional power in this area.

First, the kind of public broadcasting endorsed by the Con-

gress is nonfederal, decentralized, and directed by the expres-

sive freedoms and creative judgments of private groups and

local and state agencies. Congress sought to promote the

educational and cultural uses of broadcasting, with maximum

freedom from interference regarding program content. See 47

U.S.C. sec. 396(a)(7) (1970). Congress specifically rejected

public broadcasting premised on federal management and

ownership. Rather than producing a public broadcasting

system to its own specifications, Congress approved decentra-

lized control, with private and nonfederal ownership. Public

Broadcasting Act of 1967, Pub.L. No. 92-129, 47 U.S.C. (&

Supp. V) sec. 390 et seq. See also 47 U.S.C.A. sec.

396(k) (9) (B) (role of community advisory board).

Indeed, Congress so wanted to shield noncommercial public

broadcasting from the demands of even a beneficient federal

government that it created the nonprofit, government-chart-

ered Corporation for Public Broadcasting to insulate stations

from government pressure while channeling federal funds to

those stations. 47 U.S.C. (& Supp. V) 396 (b-g). Declaring

that diversity in programming depends on “freedom, imagina-

tion, and initiative,” Congress directed the Corporation for

Public Broadcasting to “afford maximum protection from ex-

traneous interference and control.” 47 U.S.C.A. sec. 396(a)

(1), (3) (7) (West Supp. 1979). Entrusted with raising and

disbursing funds and encouraging the creation of new non-

commercial stations, the Corporation is itself prohibited from

owning or operating a public telecommunications system, and

from producing or distributing programs. 47 U.S.C.A. sec.

396(b), (c) (1), (g) (3) (West Supp. 1979). Most of the pro-

gramming is to be developed by local stations. The conception

10

of public broadcasting adopted by Congress, then, is a concep-

tion of private and nonfederal initiative freed from the fetters

of commercial pressures, and assisted by the federal govern-

ment but shielded from its control.

Accordingly, Section 399 cannot be defended on the possi-

bility that Congress could have created a federally owned and

operated broadcasting network like Britain's BBC.* It is just

this possibility that Congress rejected. Moreover, the par-

ticular conception of public broadcasting chosen by Congress

preserved private and decentralized initiative and freedom, a

conception incompatible with federal prescriptions about

what kinds of expression can be aired.

Moreover, the Government's assumption that Congress may

avoid First Amendment restrictions by asserting governmental

involvement in the design and regulation of a broadcast system

is patently refutable by the example of commercial broadcast-

ing. There too Congress governs and supervises the allocation

of the airwaves; there too the federal government grants and

revokes licenses; there too the Government is inextricably in-

volved with private broadcast activities; and indeed, there too

the Government has provided enormous economic subsidy

through its provision of valuable licenses for the exclusive use

of the public air waves. See generally 47 U.S.C. sec. 301,

315(a)(FCC licensing and equal time rules). But the First

Amendment remains a vital and powerful limit on what the

federal government may regulate in the commercial broadcast

setting, and the same must be true with public broadcasting.

Columbia Broadcasting System, Inc. v. Democratic Nat'l

Comm., 412 U.S. 94 (1973); Red Lion Broadcasting Co. v.

* Nor is it clear that either a federally owned and operated broadcast net-

work would survive First Amendment scrutiny. See Columbia

System, Inc. v. Democratic Natl Comm., 412 U.S. 94, 149-150 (1973)

(Douglas, J., concurring) (even if Public Broadcasting were considered a

governmental agency, First Amendment strictures would apply). Certainly

this issue is not presented to the Court here.

ll

FCC, 395 U.S. 367, 390 (1969); United States v. Paramount

Pictures, Inc., 334 U.S. 131, 166 (1948). Just as the regulatory

necessity of scarcity cannot be used to silence private First

Amendment rights of commercial broadcasters, governmental

involvement in public broadcasting cannot be used to bypass

First Amendment constraints. The degree of governmental

involvement in public broadcasting can no more justify gov-

ernmental censorship of public broadcaster views than govern-

mental involvement in private broadcasting can justify censor-

ship of private broadcaster views. Nor may governmental

restriction on protected expression by private parties be upheld

simply because of “the special interests of a government in

overseeing the use of its property.” Consolidated Edison Co.

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

C. If Federal Grants Can Carry Strings Controlling the

Use of Nonfederal Funds, as in Section 399, No First

Amendment Freedoms Can Survive the Modern Regula-

tory Environment.

If Section 399’s prohibition of public broadcaster editorial-

izing is Constitutional because of “[p]ublic broadcasting’s en-

tanglements with and dependence on government,” Brief for

the United States, at 18, there will be no limit to similar cur-

tailments of fundamental freedoms in the modern social en-

vironment of private individuals’ and organizations’ entangle-

ments and dependence on government.

It has been nearly twenty years since the classic Yale Law

Journal article demonstrated the dependence of all Americans

on varied forms of governmental support and benefits. Reich,

The New Property, 73 Yale L. J. 733 (1964). Since that time,

the pervasiveness of governmental involvement in productive

activity and daily life has only increased, and the typical

American's life is enmeshed with government services and as-

sistance.

12

Just in the area of housing, Federal Mortgage Insurance,

12 U.S.C.A. sec. 1709, federal home improvements loans, 12

U.S.C.A. sec. 1715K, the Emergency Homeowners’ Relief

Fund, 12 U.S.C.A. sec. 2701 et seq., and the Urban Home-

steading Program 12 U.S.C.A. sec. 1706e provide security and

enable individuals and families to find and maintain their

homes. Federal regulation of banks protects bank mortgages

as well as individual savings. See 12 U.S.C.A. sec. 1811, et

seq. Millions of people rely on each of these programs or de-

pend on federal rent supplements for low-income families,

12 U.S.C.A. sec. 1701s, and federally-subsidized public hous-

ing, 12 U.S.C.A. sec. 1701x.

Similarly, health, nutrition, and personal income in this

country now involve so much governmental support that no

individual is independent of federal assistance of some kind.

There are the well-known assistance programs, like Medicaid

and Medicare, 42 U.S.C.A. sec. 1395, Food Stamps, 7 U.S.C.A.

sec. 2011 et seq., Aid to Families with Dependent Children, 42

U.S.C.A. sec. 601 et seq.; School Lunch and School Breakfast

Programs, 42 U.S.C.A. sec. 1751, et seq.; and Supplemental

Social Security Income, 42 U.S.C.A. sec. 1382. But govern-

ment entanglement in food and medical care is even more

penetrating, given Federal regulation under the Federal Food,

Drug, and Cosmetic Act, 21 U.S.C.A. sec. 301, et seq., fed-

erally-supported nutrition research, 7 U.S.C.A. sec. 36la-c;

427, 427i, tax subsidies for personal medical expenses, 26

U.S.C.A. sec. 104, 105, 213, and preventive health services

programs, 42 U.S.C.A. sec. 247. Federal involvement in basic

income supports span Social Security, 42 U.S.C.A. 301 et seq.,

government pensions, and federally regulated private pen-

sions, under the Employee Retirement Income Security Act,

29 U.S.C.A. sec. 1001.

Federal regulation and assistance to private industry takes

the form of tax subsidies, direct loans, and loan guarantees.

13

Executive Office of the President, Office of Management and

Budget, Budget of the United States Government, Fiscal Year

1984, 5-2 to 5-6, 6-16 to 6-20. The 1984 estimates of federal

assistance for commerce and housing through the tax structure

is $115.6 billion. Jd. at 5-64. Many industries, like the oil in-

dustry, receive massive injections of government assistance,

through such devices as the oil depletion allowance. See

26 U.S.C.A. sec. 613 (1982). The estimated value of this al-

lowance to the oil industry in 1984 is $3.0 billion. Surely no

effort has been made to curtail the speech of these commercial

enterprises given the extent and entanglement of government

support. Indeed, private commercial speech has been bol-

stered by Constitutional protection in recent years, First Na-

tional Bank of Boston v. Bellotti, 435 U.S. 756 (1978); Virginia

State Board of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748 (1976), and both the press and broad-

cast forums regularly include expressions by such companies as

Mobil and Xerox.

Another area inextricably entwining governmental support

and private activities is communications. Federal regulation of

telephone services has recently occupied the attention of federal

courts and Congress as well as the Federal Communications

Commission. See United States v. AT & T, Western Electric

Co., Inc., and Bell Telephone Laboratories, Inc., Civ. No.

74-1698 (D.D.C. dismissed by stipulation Jan. 8, 1982); Tan-

nenbaum and Hurst, The AT&T Agreement: Reorganization of

the Telecommunications Industry and Conflicts with Illinois

Law, 15 John Marshall L. Rev. 463 (1982). Public mail service

remains a central form for private communication, see 39

U.S.C.A. sec. 101 et seq. The Federal government licenses

broadcast services, 47 U.S.C.A. sec. 301, 309, and coordinates

communication systems. 47 U.S.C.A. sec. 11, 154(0).

Still another area enmeshed with governmental assistance is

education. Federal grants to improve basic skills training in

14

local schools, 20 U.S.C.A. sec. 2722, federally insured student

loans for college and university students, 20 U.S.C.A. sec.

1071, basic educational opportunity grants, 20 U.S.C.A. sec.

1070, and federal grant support and tax subsidies for colleges

and universities are essential to the educational opportunities

for individual students and centrally important to the con-

tinued existence of these institutions for learning.

According to the Government's reasoning in this case, the

fact of government involvement in each of these areas could

supply a basis for waiving First Amendment and other funda-

mental freedoms even where private funds are used to exercise

those freedoms. The dependency of individuals, groups, and

institutions on federal assistance cannot be denied; the deep

involvement of the government in structuring and maintain-

ing health, education, communication, and income services is

obvious. If the sheer presence of federal support or subsidy

can supply the basis for curtailing individual freedoms, even if

other financial sources are available to enable their exercise,

then there is no corner of contemporary society in which in-

dividual freedom can withstand assault.

Until now, the courts have held careful check on the degree

to which government support may carry strings that paralyze

constitutional freedoms. In the academic context, even where

the government is the employer, the free speech of teachers re-

tains constitutional protection. Pickering v. Board of Educa-

tion, 391 U.S. 563 (1968). The academic freedom of students

also has remained protected even where the students depend

upon government aid. Haverford College v. Reeher, 329

F. Supp. 1196 (E.D. Pa. 1977) (striking state statute requiring

college to report student violations of campus rules for purpose

of withdrawing state scholarship aid).°

*Here the academic freedom hypothetical in the Government's brief if

anything supports appellees. The Government concedes that “The govern-

15

The mere fact of governmental support cannot supply a

basis for controlling individual freedom; only weighty state in-

terests, carefully pursued, may be used to justify intrusion on

such freedoms. See Keyishian v. Board of Regents of the Uni-

versity of the State of New York, 385 U.S. 589 (1967); Sweezy

v. New Hampshire, 354 U.S. 234 (1957); Meyer v. Nebraska,

262 U.S. 390 (1923). The federal government has generally

heretofore hewed this line in establishing controls for federal

grants that essentially protect the rights of grant recipients

while assuring accountable use of the federal funds. Stephen

M. Barro, Federal Education Goals and Policy Instruments, in

Symposium on The Federal Interest in Financing Schooling, at

229 (M. Timpane ed. 1978).

Similarly, federal involvement in communications services

has never justified federal control to the exclusion of private

freedoms. Red Lion v. FCC, 395 U.S. 367, 390 (1969) (“the

people as a whole retain their interest in free speech by radio

and their collective right to have the medium function consist-

ently with the ends and purposes of the First Amendment

{which are] to preserve an uninhibited marketplace of ideas

. rather than to countenance monopolization of that

ment could not prohibit outside research by a college professor who received

a small grant to conduct research in a particular area because, assuming that

he properly performed the research called for in the grant, the government

would not be financing his other work any more than it would be financing

his private life.” Brief for the United States, at 46-47, n.77. Public broad-

casters receiving federal grants through the Corporation for Public Broad-

casting similarly have other nonfederal sources to finance editorials and

other broadcasting purposes. The Government erroneously claims that “if

the government gave [the college professor} access to a federally financed

laboratory for the purpose of doing the grant research, it could legitimately

insist that he not use the facility for printing political propaganda

pamphlets.” Jd. This Court has held to the contrary that even where the en-

tire academic environment is sustained by government support, a teacher

may not be forced to waive his or her expressive freedoms, Pickering v. Board

of Education, 391 U.S. 563 (1968).

16

market, whether it be by the Government itself or a private

licensee”); Harnnegan v. Esquire, Inc., 327 U.S. 145, 156

(1946) (second-class mail permit may not be conditioned upon

grounds curtailing expression).

To conclude instead, as the Government urges in this case,

that federal involvement through financial subsidy and

regulation can justify control over private activities even

where nonfederal support is also present, would leave no in-

stitution or person able to enjoy fundamental freedoms. The

presence of the federal government in income subsidies and

taxation, health insurance and services, housing subsidies,

communication, education, and a host of other areas is so per-

vasive that no activity could be immune from the kind of in-

trusion deployed in Section 399. This has not been the

heritage of our Constitution, nor can it be its destiny.

II. Section 399’s CeENsorsHIP OF SPEECH Lacks SUBSTANTIAL

OR IMPORTANT GOVERNMENTAL INTERESTS AND FAILs TO Em-

PLOY AVAILABLE Less RESTRICTIVE MEANS.

Although the “unique and special problems” of broz deast-

ing — the physical scarcity of broadcasting frequencies —

have called for a different kind of Governmental involvement,

and different First Amendment doctrine than other speech

situations, CBS, Inc. v. Democratic National Committee, 412

U.S. 94, 101 (1973); Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 388 (1969), governmental infringements of speech in

the broadcast context still must survive Constitutional careful

scrutiny. Debates over whether this scrutiny should be deemed

to require “compelling governmental interests” or other par-

17

ticular doctrinal phrases misses the point:’ the First Amend-

ment in the broadcasting area stands “to preserve an uninhib-

ited marketplace of ideas in which truth will ultimately pre-

vail, rather than to countenance monopolization of that

market, whether it be by the Government or a private li-

censee. ... It is the right of the public to receive suitable ac-

cess to social, political, esthetic, moral, and other ideas and ex-

periences which is crucial here. That right may not constitu-

tionally be abridged either by Congress or by the FCC.” Red

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

ally where the regulation restricts speech rather than promot-

ing it, and where it singles out some speech for regulation,

Minneapolis Star & Tribune Co. v. Minn. Comm’ner of

Revenue, 103 S.Ct. 1365, 1370 (March 29, 1983), challenged

governmental action must be justified by weighty interests and

must be tailored to intrude no more than required to serve

those interests. Federal Communications Commission v. Na-

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

(1978); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

(1969). Neither of these requirements is even approximated

here.

A. The Government Has Failed to Demonstrate

Weighty Interests Served by Section 399.

The government’s chief defense of Section 399 is that Con-

gress does not want public broadcasters to editorialize. The

"Cf. Tilton v. Richardson, 403 U.S. 672, 678 (1971) (Burger, C.J.)

(plurality opinion) (“There are always risks in treating criteria discussed by

the Court from time to time as “tests” in any liiniting sense of that term. Con-

stitutioinal adjudication does not lend itself to the absolutes of the physical

sciences or mathematics. The standards should rather be viewed as guide-

lines with which to identify instances in which the objectives of the Religion

Clauses have been impaired”).

18

government simply asserts that the Congressional provision is

necessary because the “public” nature of public broadcasting,

as defined by Congress, could be interfered with by public

broadcaster editorials. Brief for the United States, 33-35. As

noted above, this claim of governmental interests depends on

the fallacious argument that Congress can control public

broadcasting because it is involved in its creation and main-

tenance. Surely an abridgement of the freedom of speech

must be justified by more than a Congressional desire to con-

trol the nature of a major channel for expression and debate.

The government proffers two other interests to justify Sec-

tion 399. First, it is supposed to protect the public from the

use of taxpayer dollars or governmental support in the ad-

vancement of private “partisan” views, Brief for the United

States, 34, 39, 42. Second, the provision is supposed to guard

against undue government influence on the views expressed by

broadcasters receiving or hoping to receive federal support.*®

No evidence of prior abuses is offered to support these asser-

tions.®

Instead, the government has provided mere speculations of

harm, which cannot satisfy the constitutional scrutiny accord-

ed to impingements on fundamental freedom. United Mine

Workers v. Illinois Bar Assoc., 389 U.S. 217, 222-223 (1967).

Just as in Buckley v. Valeo, 424 U.S. 1, 93 n.126 (1976), the

*This asserted interest hardly justifies curtailment of noncommercial

broadcaster <ditorializing on local issues, unrelated to federal support.

* Thus, Section 399 bears no resemblance to the Hatch Act provisions up-

held in U.S. Civil Service Commission v. National Ass'n of Letter Carriers,

413 U.S. 548, 557 (1973). Long experience with and detailed investigation

into the political corruption of the spoils system in public employment jus-

tified the creation of the civil service system and the Hatch Act to curtail the

risks that political activity by government employees would expose both

those employees and the government to improper political influence. No such

experience with abuses is offered in the public broadcasting context; nor is

the public broadcaster a government employee.

19

claim that public funding could lead to governmental control

and contamination of political freedom is “wholly specu-

lative.”

Moreover, these two interests offered by the government are

mutually incompatible. On the one hand, the government

warns of the magnification of private views, with broadcasters

using the stations “to propagate their own partisan ends.”

Brief for the United States, at 34. On the other hand, the

government warns of government orthodoxy and propagand-

izing through the voices of broadcasters seeking to curry favor

with the Government funding sources. Brief for United States

at 35. The risk that the broadcaster will become a mouthpiece

for the government hardly seems weighty when coupled with

a prediction that the broadcaster will express controversial,

partisan views that are opposed by the majority of taxpayers

and the government officials in powe:. As the Government

acknowledges, the public affairs programming of public

broadcasting has already demonstrated controversial and pro-

vocative qualities, Brief for the United States, at 41, and yet no

charge is made that taxpayers’ monies are misused in these

programs, or that the audience attribute to the government

the views expressed on these programs. Further, the alleged

risk of political influence on broadcasting due to government

funding surely is no greater in editorial expression than it is in

programming generally, as the legislative history of Section

399 itself suggests. '°

'°Thus, Representative Watson said “Let them go ahead and editorialize.

Give me the right to control content and others can editorialize al! they want

to, but I will influence the thinking of the American public more with the pro-

grams or with people I have appearing in the programs. The American public

knows editorials are subjective, but they believe regular programs are objec-

tive.” 113 Cong. Rec. 26392 (1967). The House Report, describing the ban on

broadcaster editorializing, conceded that the result would not be balanced,

fair, and objective presentations of controversial issues by noncommercial sta-

tions. H.R. Rep. No. 572, 90th Cong., Ist Sess. (Aug. 31, 1967), at 20.

20

Above all, the viewing and listening public is alerted best to

the media’s lack of objectivity when a broadcast is labeled an

editorial, and prohibiting this portion of the broadcast day

hardly eliminates whatever risks of government influence ac»

company government funding.”

The Government's fear that taxpayer dollars may be used to

advance “partisan” views apparently comes from a conception

that public broadcasting, unlike other areas for public debate,

should exclude partisan debate. The purpose of public broad-

casting is, if anything, quite the opposite. As an alternative to

commercial broadcasting, noncommercial educational broad-

casting enlarges the range of options for listeners and viewers.

Rather than purchasing controversial private views, the tax-

payer dollars conveyed to the noncommercial broadcaster help

pay for the forum for the expression of all views. Ina very real

sense, it is the general public, not the broadcaster, who is

benefited by Governmental assistance to noncommercial

broadcasting, and by the broadcaster's vital participation in

the marketplace of ideas. “(T]he First Amendment goes

beyond protection of the press and the self-expression of in-

dividuals to prohibit government from limiting the stock of in-

formation from which members of the public may draw.”

First National Bank v. Bellotti, 435 U.S. 765, 783 (1978). See

Virginia State Board of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. 748, 756-757 (1976). Similarly,

the fear that governmental support for public broadcasting re-

quires curtailing the broadcaster's own rights of expressions

misunderstands the First Amendment's “central meaning”

which “is to secure ‘the widest possible dissemination of infor-

mation from diverse and antagonistic forces."” New York

Times Co. v. Sullivan, 376 U.S. 254, 266 (1964) (quoting

Assoc. Press, Inc. v. United States, 326 U.S. 1, 20 (1945)).

Points of view, efforts to persuade, partisan editorials are

critical to the free expression protected by the First Amend-

21

_ ment; “‘[f]ree trade in ideas’ means free trade in the oppor-

tunity to persuade to action, not merely to describe facts.”

Thomas v. Collins, 323 U.S. 516, 537 (1945). See First Na-

tional Bank v. Bellotti, 435 U.S. 765, 790 (1978). Unlike the

Establishment Clause, which forbids the government not only

from interfering with individual freedom of religion but also

from favoring one religious view over any other, U.S. Const.,

Amend. I, government support of expression may be necessary

to protect and preserve the freedoms of speech and of the

press. Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). See

also T. Emerson, The System of Freedom of Expression

627-630 (1970); Wright, Money and the Pollution of Politics:

Is the First Amendment an Obstacle to Political Equality?,

82 Colum. L. Rev. 609, 642 (1982).

The interests asserted by the Government may betray not

only serious misunderstanding of the First Amendment, but

also an inappropriate Governmental desire to shut off a key

source of independent criticism and controversy. Noncom-

mercial broadcasting, as Congress intended, is freed from the

pressures of advertising sponsors and profit-making, and thus

offers a specially unfettered avenue for broadcast expression.

In this light, the Government’s repeated assertion that the

views of broadcasters may be partisan and controversial not

only falls short of the requisite weight for sustaining curtail-

ment of speech; it demonstrates the very impetus behind the

First Amendment in protecting from Government control the

expression of dissenting and antagonistic views.!!

'' Similarly, the Congressional supporters of Section 399 revealed fears of

criticism that may well indicate why the First Amendment so centrally pro-

tects the kind of editorial speech banned by Section 399. Congressman Jeol-

son asserted that public officials were “sitting duck(s}]” given media editorial-

izing. 113 Cong. Rec. 26391 (1967). See generally Toohey, Section 399:

The Constitution Giveth and Congress Taketh Away. 6 Educ. Broadcasting

Rev. 31. 34 (1972) (“the purpose of Section 399 was clear: to prevent Con-

22

By seeking to silence “partisan” views on public issues, Sec-

tion 399 offends the First Amendment's commitment to per-

suasive, political expression, and ignores this Court's declara-

tion that “above all else, the First Amendment means that gov-

ernment has no power to restrict expression because of its mes-

sage, its ideas, its subject matter, or its content.” Police

Department v. Mosley, 408 U.S. 92, 95 (1972). See Consoli-

dated Edison Co. v. Public Service Comm'n, 447 U.S. 529

(1980); Virginia State Board of Pharmacy v. Virginia Citizens

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

B. The Government Has Failed to Use Readily Available,

Less Restrictive Means to Achieve its Ends.

Even if there were foundation for the Government's fears,

there are measures less restrictive of free expression available

to hold those fears in check. The audience could be protected

from any confusion over whether editorials by noncommercial

broadcasters are expressions of governmental views by a dis-

claimer to the contrary, accompanying each editorial, just as

the permissible editorials carried by these stations currently

disclaim identification with the broadcaster. The audience

could similarly be guarded against any special advantage the

broadcaster may have in access to the airwaves by effective en-

forcement of the Fairness Doctrine, 47 U.S.C. sec. 315(a)

(1976), which requires the offer of air time to individuals per-

sonally attacked or editorially opposed by the station, 47

C.F.R. secs. 73.1910, 73.1920, 73.1930 (1982), and also re-

quires adequate discussion of conflicting views on controver-

sial subjects, 47 U.S.C. sec. 315(a) (1976).

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

fore, to achieve its own self-protective ends Congress simply legislated away

a significant part of educational broadcasters’ right of free speech”).

23

In addition, to guard against the use of taxpayers monies to

finance the expression of “partisan” broadcaster views, Con-

gress could require the broadcasters to segregate federal and

nonfederal funds and provide separate accountings or assur-

ances of separate uses for these funds. This technique is al-

ready effectively used to protect against governmental in-

fringement of First Amendment freedoms, most notably in

preserving freedom from Governmental establishment of reli-

gion. See Tilton v. Richardson, 403 U.S. 672 (1971); Roemer

v. Board of Public Works, 426 U.S. 736 (1976); Everson v.

Board of Education, 330 U.S. 1 (1947).

Each of these measures would accomplish the Govern-

mental goals with less restrictions of freedom of expression

than the flat curtailment of broadcaster editorializing em-

bodied in Section 399. Effective use of safeguards already in

place could also achieve the government's ends without bann-

ing broadcaster editorializing. In addition to the Fairness

Doctrine, Congress has already structured the governance of

public broadcasting to protect against both the risk of ir-

responsible uses of government funds and the risk of political

influence on the expression by recipients of governmental

grants. Congress established the Corporation for Public

Broadcasting to insulate recipient broadcasters from govern-

ment influence, 47 U.S.C. sec. 396(a)(1), (7) (West Supp.

1982); H.R. Rep. No. 572, 90th Cong., Ist Sess. 19-20 (1967),

reprinted in [1967] U.S. Code Cong. & Ad. News 1799, 1810.

Congress also guarded against even the appearance of Govern-

mental orthodoxy as an influence in the grant process by re-

quiring variety in political affiliations for the Board of Direc-

tors of the Corporation for Public Broadcasting: no more than

eight of the fifteen directors may be members of the same

political party, 47 U.S.C.A. sec. 396(c) (1) (West Supp. 1979).

The Corporation’s own practices require use of objective

standards for awarding grants in order to avoid intruding

24

upon the content of broadcast expression. See 47 U.S.C. sec.

396(g)(1)(A). The Corporation has also established a semi-

autonomous Program Fund to better insulate individual

programming decisions from the directors. Broadcasting

(June 25, 1979), at 54.

Finally, the best measure for curing fears of misleading or

controversial speech is more speech and robust debate. “False-

hoods and fallacies must be exposed, not suppressed. . . . That

is the command of the First Amendment.” American Com-

munications Ass'n v. Douds, 339 U.S. 382, 396 (1950). See

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Counsel, Inc., 425 U.S. 748, 770 (1976) (choice between “the

dangers of suppressing information and the dangers of its mis-

use if it is freely available [is a choice] that the First Amend-

ment makes for us”). The solution to the fear of governmental

influence on the broadcaster editorials is to ensure greater ac-

cess for alternative points of view; similarly an answer to fears

of excessive editorial power by broadcasters would be in-

creased opportunities of access for other speakers. Increased

access to airtime on public broadcasting, thus, would be a

method to meet the asserted governmental interests behind

Section 399 consistent with the First Amendment. '*

“The ultimate danger is not that the government's point of view gets

across; it is that the views of others do not, and ‘the remedy of silence is not

the way of the first amendment.’ Canby, The First Amendment and the

State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123,

1127 (1974) (quoting Van Alstyne, The First Amendment and the Suppres-

sion of Warmongering Propoganda in the United States, 31 Law & Con-

temp. Prob. 530, 535 (1966).

25

Conclusion.

For the foregoing reasons, the judgment of the lower court

should be affirmed.

Respectfully submitted,

BURT NEUBORNE,

CHARLES S. SIMS,

Counsel of Record,

MARTHA L. MINOW,

American Civil Liberties Union,

132 West 43rd Street,

New York, New York 10036.

(212) 944-9800

Attorneys for Amicus Curiae