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

Supreme Court brief1984

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SS > i. STEVAS. a

+a IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-912

FEDERAL COMMUNICATIONS COMMISSION,

;

“ Appellant,

: v. ny

By. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, et al.,

. Appellees.

‘ On Appeal from the United States District Court :

i for the Central District of California

Be BRIEF FOR AMICI CURIAE

9 CBS INC.

‘ NATIONAL ASSOCIATION OF BROADCASTERS

j RADIO TELEVISION NEWS DIRECTORS ASSOCIATION

4 IN SUPPORT OF APPELLEES LEAGUE OF WOMEN

x VOTERS OF CALIFORNIA ET AL.

Of Counsel:

: ALLEN Y. SHAKLAN J. RoGER WOLLENBERG

: HOowagp F. JAECKEL TimotHy B. Dyk *

( CBS Inc. ALAN S. TENENBAUM

¥ 51 W. 62 Street WILMER, CUTLER & PICKERING

Ey New York, New York 10019 1666 K Street, N.W.

: Washington, D.C. 20006

4 Counsel for CBS Ine.

br, ERWIN G. KRASNOW

a Wr.iaM E. KENNARD

4 1771 N Strex, N.W.

Bs Washington, D.C. 20086

oe Cour sel for National Association

of Broadcasters

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT .......... as

I. EDITORIALIZING MAKES A VITAL CON-

II.

III.

IV.

TRIBUTION TO THE MARKETPLACE OF

IDEAS, AND PROTECTION OF THE RIGHT

TO EDITORIALIZE IS ESSENTIAL TO A

FREE PRESS

GOVERNMENT SUPPRESSION OF CON-

TROVERSIAL SPEECH IS PRESUMP-

TIVELY UNCONSTITUTIONAL

THE PROHIBITION ON EDITORIALIZING

CANNOT BE JUSTIFIED BY THE SPECIAL

CHARACTERISTICS OF PUBLIC BROAD-

CASTING .

A. The First Amendment Precludes Governmen-

tal Interference With the Editorial Freedom

of Independent Journalistic Entities Even

When Thev Are Dependent on Government

Funding .. Re eae

B. The First Amendment Bars Exercise of the

Spending Power To Suppress Editorial

ANY COMPELLING INTEREST TO SUP-

PORT THE SUPPRESSION OF EDITORIAL-

IZING BY PUBLIC STATIONS a HE ICE a

A. Suppression of Speech of State and Local

Governments Is Not a Legitimate Govern-

Ground That It Avoids Taxpayer Subsidiza-

tion of Unpopular Sneech o.00000000000000... se aha

TABLE OF CONTENTS—Continued

Page

C. Direct Suppression of Public Broadcaster

Speech Cannot Be Justified As Designed To

Prevent Indirect Efforts To Infiuence Such

MINTED Licictncapecaicesiemenhomnadentaninnccdeiiagtuciahdanlaaaaseaaiinne 26

CONCLUSION .................. sl oh aaiidanicableahaspicimtaccibohasincunantatiods 30

iii

TABLE OF AUTHORITIES

CASES Page

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

(| es a ie 26

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

Cir. 1975), cert. denied, 425 U.S. 934 (1976)........ 15, 17

CLU v. Radford College, 315 F. Supp. 893 (W.D.

YI Sali sioctiascceisicinckens tataaccodubedkie bases 18

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

he SM EN ARS er ek neon 17,18

Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967),

cert, denied, 390 U.S. 920 (1968) o.oo. 17

Bazaar v. Fortune, 476 F.2d 570 (5th Cir.), aff'd as

modified en banc, 489 F.2d 225 (5th Cir. 1973),

cert. denied, 416 U.S. 995 (1974) 000.0... 17, 18

Board of Education v. Pico, 102 S.Ct. 2799 (1982).. 18, 28

Bolger v. Youngs Drug Products Corp., 103 S.Ct.

ane SERIE AE A re Re 6, 12, 21

Brandenburg v. Ohio, 395 U.S, 444 (1969) 7

Brown v. Hartlage, 456 U.S. 45 (1982) 0000. 6, 27

Buckley v. Valeo, 424 U.S. 1 (1976)... 21, 23, 26

Carey v. Brown, 447 U.S. 455 (1980) 00. 6

Columbia Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94 (1973) 5, 10,14

CBS, Inc. v. FCC, 453 U.S. 367 (1981) 00.00... 10

City of Madison Joint School District No. 8 v. Wis-

consin Employment Relations Commission, 429

Ee RIE SE Re eee 7

Community-Service Broadcasting v. FCC, 593 F.2d

EL SR romana Ie Rata 16, *7, 22, 29

Community Television of Southern California v.

Gottfried, 103 S.Ct. 885 (1988) 15

Connick v. Myers, 103 S.Ct. 1684 (1983) 22

Consolidated Edizon Co. v. Public Service Commis-

sion, 447 U.S. 580 (1980) alana 6, 8, 12, 21, 23

CSC v, National Association of Letter Carriers,

ey CRI icdisttadesctecechocdamsittatesnstncliies sent. 22

Dickey v. Alabama State Board of Education, 273

F. Supp. 613 (M.D. Ala. 1967), vacated, Troy

State Univ. v. Dickey, 407 F.2d 515 (5th Cir.

NIE <duscgicunachinineicienicebeebenbgdinminetadababesceuns toons 18

TABLE OF AUTHORITIES—Continued

Page

EEOC v. Wyoming, 103 S.Ct. 1054 (1983) 24

Elrod v. Burns, 427 U.S. 347 (1976) ...-<-<-eeecceeeeeeee* 22

Erznoznik v. City of Jacksonville, 422 U.S. 205

(1976). .n-n-c-cecee-secsenesenesrseseneeees — scriecmenncnncnnian T

FCC v. Mid-West Video Corp., 440 U.S. 689 (1979).. 15, 27

FCC v. National Citizens Commission for Broad-

casting, 436 U.S. 775 (1978) -..--.--e-n-ceeeseeeensesesenees 10

FCC v. Pacifica Foundation, 438 U.S. 726 (1978). 10, 11

FERC v. Mississippi, 456 U.S. 742 (1982) ....--------~ 24

First National Bank v. Bellotti, 435 U.S. 765

(1G TB) -aoo-<oo-acsenseensonseenssesoessencrenss 7, 12, 23, 24, 25, 26, 30

Frost & Frost Trucking Co, v. Railroad Commis-

sion, 271 U.S. 583 (1926) ......---+--++++: wo on aaa 22

Gambino v. Fairfax City School Board, 429 F.

Supp. 731 (E.D. Va. 1977), aff'd, 564 F.2d 157

(Ath Chr, 1977) ------crs-sseernsscesenerneet smrersns oe iene: 18

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. DGA (1981) -----sn-ncccececcrereeseesesseseeee 24

Joyner v. Whiting, 477 F.2d 456 (5th Cir. 1973)... 18

Korn v. Elkins, 317 F. Supp. 138 (D. Md, 1970).... 18

Landmark Communications v. Virginia, 435 US.

GOO (1978) --nea---scesseceeveeecesnnssnvessererronsrenssees st" ag 7

League of Women Voters v. FCC, 547 F. Supp. 379

(C.D. Cal, 1982) -.-----------e0eer0" <cciasosenmnovensesaneell passim

Lee v. Board of Regents, 441 F.2d 1257, 7th Cir.

EDIT) ncncocsovcconrcorovnscesescoransnssccorerhvosrererernna a ae

Linmark Associates, Inc. v. Township of Willing-

boro, 431 U.S. 85 (1977) .esoscececvsnccensesosencesnsnsaseseoers 7

Martin v. Struthers, 819 U.S. 141 (1948) -.--------eeee 7

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

(1QB1) ..avceoccesovcsonnssnsseonnsnsconnnsconvoqnerseresets "aaa ag 6, 12, 28

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

BEE CHOTA), <ccoconceecenssensnncornnssossscrommessetneeeeer er 9, 18

Mills v. Alabama, 984 U.S. 214 (1966) ......---. eesti *

Minneapolis Star v. Tribune, 103 S.Ct. 1365

PIII casectotnsinanesanenconconteesenseeceersowsP Ca aa 8

Muir v. Alabama Educational Televisior Commis-

gion, 688 F.2d 1033 (5th Cir. 1982), cert. denied,

103 §.Ct. 1274 (1988) ...-cescnseoseeseeseeneesenncenennsensseeses 19

TABLE OF AUTHORITIES—Continued

Page

NBC v. United States, 319 U.S. 190 (1943) .........-- 14

Nebraska Press Association v. Stuart, 427 U.S. 53

CRIT) eaccncnnncaeannsonsncnenenrnmnprannnesnnemnccammecnmeesseee ee 7

Network Project v. CPB, 561 F.2d 963 (D.C. Cir.

1977), cert. denied, 434 U.S. 1068 (1978) .....-- 17

New York v. Ferber, 102 S.Ct. 3348 (1982) ........-- ll

New York Times v. Sullivan, 376 U.S. 254 (1964)... 4

Oklahoma v. CSC, 330 U.S. 127 (1947) ....-<-cc---- : 22

Oraanization for a Retter Austin v. Keefe, 402 U.S.

GIB (1GT1) ..0200nc.cseresecsverssasesnserenenscenenecerers eee 7

Perry v. Sindermann, 408 U.S. 593 (1972)... 22

Pittsburgh Press Co. v. Human Relations Commis-

sion, 413 U.S. 376 (1973) Se ssh aeean pinata R

Police Department v. Mosley, 408 U.S. 92 (1972).. 7

PruneYord Shopping Center v. Robins, 447 USS.

BE (IDB) cnacnnveceesncsoveeveesnsancetonsnnenanenoronenmensste erage 18, 25

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

CIDE) <cccces<ccccseeees AE ae __e-sesee 9, 10, 14, 27

Regan v. Tazation with Representation, 103 S.Ct.

1977 (1983) ......---. Re ne een 13,19

Schad v. Mount Ephraim, 452 U.S. 61 (1981)........ 6

Schiff «. Williams, 519 F.2d 257 (5th Cir. 1975)... 18

Schneider v, State, 308 US, 147 (1989) .....---c-e R, 21

Shelton v. Tucker, 364 U.S. 479 (1960) ...-.ccccceceeeeee 24, 27

Sherbert v. Verner, 874 U.S. 398 (1963)... 22

Speiser v. Randall, 357 U.S. 518 CIBEBD ccaccorecnsececees 12, 22

Spence ¥. Washington, 418 U.S. 405 (1974) .....---0+ 21

Strombera v. California, 283 U.S, 359 (1931). 8

Tally v. California, 382 U.S. 60 (1960) .......ccccecceeeeens 7

Terminiello v. Chicago, 337 U.S. 1 (1949) ...------e0 3,4,7

The Luparar v. Stonenian, 922 F. Supp. 495 (D. Vt.

1974) - se csrennsnetemeniannenreaan 18

Thornhill v. Alabama, 310 TS, 8B (1940) 7,8

Tinker ». Dee Moines Srhool District, 393 U.S. 503

(1969) .........- 7

Trujillo v. Love, 322 F Supp, 1266 (D. Colo. 1971) .<

United Public Workers ». Mitchell, 330 U.S. 75

COME cnceniacteroctececotasoviccssnesdhtnstientenr On eeetonet eters 22

TABLE OF AUTHORITIES—Continued

Page

United States v. Grace, 103 S.Ct. 1702 (1983)... ; 6

United States v. Southwestern Cable Co., 392 US.

a 5,15

Village of Schaumberg v. Citizens for A Better En-

vironment, 444 U.S. 620 (1980) ................2----- eee 6,7

Virginia State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, 425 U.S. 748 (1976).... 7

Wooley v. Maynard, 430 U.S. 705 (1977) ................. 25, 26

Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y.

sas cccscerecnnseznevece 18

STATUTES

Communications Act of 1934, 48 Stat. 1064 (1934),

as amended, 47 U.S.C. §§ 151 et seq. (1976)........ 14

Educational Television and Facilities Act of 1962,

Pub, L. No. 87-447, 76 Stat. 64 (1962) . 15

Internal Revenue Code, 26 U.S.C. § 501(C) (3),

a ccnssvasenbborsecsose 19

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

ED os ccaceccvvceccccocsecees 16

TDC RINIIED ,..ccccccscescoscseroseosrsourceners 16, 27

47 U.S.C. § 398(a) (Supp. II 1978) ............ 15, 16, 27

Public Broadcasting Amendment Act of 1981, Pub.

L. No, 87-85, 95 Stat. 730 (1981) ........................ 20

Radio Act of 1927, Ch. 169, 44 Stat. 1162 (1927)... 14

ADMINISTRATIVE DECISIONS AND MATERIALS

Accuracy in Media, Inc., 45 F.C.C.2d 297 (1973).... 12

FCC Legislative Recommendations to Congress for

Revision of the Communications Act, F.C.C. Re

Neen cas careewenseneoneovens 9

FCC Office of Plans and Policy, Measurement of

Concentration in Home Video Markets (Dec.

EEE EEE ROT OT 9

In re Editorializing by Broadcast Licensees, 13

I oo sca cascenscentenorewscosesoons 5

Mayflower Broadcasting Corp., 8 F.C.C. 333

I 5

vii

TABLE OF AUTHORITIES—Continued

Page

Miners Broadcasting Services, Inc., 20 F.C.C. 2d

Ne MO cic ee ey 5

OMB Release No. 82-9 (Mar. 10, 1983)... 21

Programming Inquiry, 44 F.C.C, 2303 (1960)... 5

RKO General, Inc., 44 F.C.C, 24 149 (1969) ..... 5

WHDH, Inc., 16 F.C.C, 24 1 (1969) .. Epo ks #2 5

48 Fed. Reg. 3348 (1983). Se eee 21

LEGISLATIVE MATERIALS

108 Cong. Rec. 3,532 (1962)... yoaes ee 15

118 Cong. Rec. 12,992 (1967) ................................ 29

113 Cong. Rec. 26,388-26,391 (1967)... 29

Hearings on Broadcast Editorializing Practices

Before Subcomm. of the House Comm. on Inter-

state and Foreign Commerce, 88th Cong., Ist

NG SRINIIII iene cl re oaar 5

Hearings on H.R. 6736 and S. 1160 Before House

Comm. on Interstate and Foreign Commerce,

90th Cong., Ist Sess. (1967) ..........000 29

Hearings on S-1333 Before the Subcomm. of Sen-

ate Comm. on Interstate and Foreign Commerce.

80th Cong Ist Sess. (1947) 5,6

H. Rep. No. 999, 87th Cong. 1st Sess, (1961)........ 15

H.R, Rep, No. 1559, 87th Cong., 2d Sess. ( 1962)... 15

S. Rep. No. 222, 90th Cong., 1st Sess. (1967) ........ 16

Transportation, 98th Cong., 1st Sess., Print and

Electronic Media: The Case for First Amend-

ment Parity (1988) (Senate Print No. 98-50) .. 9

MISCELLANEOUS

Brief for Respondents, Grove City College v. Bell,

No, 82-792 (U\S., filed Aug. 5, 1988)... 21

Carnegie Commission on Educational Television,

A Program for Action (1967)... 16

CPB, 1982 CPB Public Broadcasting Directory... 23

CPB, Public Broadcasting Income: Fiscal Year

a male ep gh DE TARE TE a cs Cy RE 20

Developments in the Law—Academic Freedom, 81

ts ee BOs TOU CIID soe 18

viii

TABLE OF AUTHORITIES—Continued

Fowler & Brenner, A Marketplace Approach to

Broadcast Regulation, 60 Tex. L. Rev. 207

UNO ese ea ea snc spas naesaceach eid piescceseumtovasndesunnnens

J. Hart, Views on the News: The Developing Edi-

torial Syndrome 1500-1800 (1970) ..00000000........ ia

J. Hulteng, The Opinion Function .......... SoS

Kalven, Broadcasting, Public Policy and the First

Amendment, 10 J.L. & Econ. 15 (1967) .000000000.......

Lawrence, Question of Editorial Opinions on Radio,

N.Y. Sun, March 8, 1948, at 29, col. 1 ....................

L. Levy, Legacy of Suppression: Freedom of

Speech and Press in Early American History

Cf eR eNIES EN ERAT nila, SSI kN es ne

Lindsey, Public Broadcasting: Editorial Restraints

and The First Amendment, 28 Fed. Comm. B.J.

drei sechctas tc actelidses ccdiaedbaptatenedicedetcinesedabicsionn

Note, The Mayflower Doctrine Scuttled, 59 Yale

PR ERR RE RE OU ter OR Baca Dd

Note, The Public Broadcasting Act: The Licensee

Editorializing Ban and the First Amendment,

18 U. Mich. J. L. Ref. 541 (1980) .........................

Report of the Carnegie Commission on the Future

of Public Broadcasting, A Public Trust (1979)..

E. Routt, Dimensions of Broadcast Editorializing

W. Sloan, Pulitzer Prize Editorials CTO D secnsacnsases

Stern, Krasnow & Senkowski, The New Video Mar-

ketplace and the Search for a Coherent Regula-

tory Philosophy, 32 Cath. U. L. Rev. 529 (1983)..

Toohey, Section 399: The Constitution Giveth and

Congress Taketh Away, 6 Educ. Broadcasting

By I oan hensces Ucouctien bed etih a cosbaasasRaechdes

L. White, The American Radio (1947) .....0...0..0.......

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-912

FEDERAL COMMUNICATIONS COMMISSION,

. Appellant,

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, et al.,

Appellees.

On Appeal from the United States District Court

for the Central District of California

BRIEF FOR AMICI CURIAE

CBS INC,

NATIONAL ASSOCIATION OF BROADCASTERS

RADIO TELEVISION NEWS DIRECTORS ASSOCIATION

IN SUPPORT OF APPELLEES LEAGUE OF WOMEN

VOTERS OF CALIFORNIA ET AL.

INTEREST OF AMICI CURIAE

CBS Inc. (“CBS”) is the owner of radio and television

broadcasting stations. These stations regularly convey

information and provoke debate on matters of public

importance through the exercise of their First Amend-

ment right to editorialize.' The National Association of

Broadcasters (“NAB”) is a nonprofit incorporated asso-

ciation of radio and television broadcast stations and net-

works. As of September 7, 1983, NAB’s membership in-

cluded 4,442 radio stations, 701 television stations, and the

major nationwide commercial broadcast networks. The

Radio-Television News Directors Association includes ap-

proximately 2,000 news directors and others who are ac-

1 CBS also operates national radio and television networks which

do not regularly editorialize. Neither these networks nor corporate

management plays any role in the formulation of station editorials,

leaving that important function to the local management of CBS’

individual stations.

tive in the supervision, reporting and editing of news and

public affairs programming on radio and television, both

broadcast and cable.

Amici believe that the right of television and radio

stations to editorialize on controversial issues of public

importance is a vital journalistic function essential to the

healthy functioning of a free press in a democratic so-

ciety. The interests of amici would be directly affected

by any decision that the Government could constitutionally

suppress broadcast editorializing. The arguments made

by the Government in this case strongly suggest that the

Government believes it could prohibit the right of com-

mercial and noncommercial stations alike to editorialize

or to otherwise express their views on issues of public

interest. Allowing the Government to suppress such con-

troversial speech would deprive the public of an important

source of information and would seriously undermine the

First Amendment.

SUMMARY OF ARGUMENT

Whether or not motivated by a desire to restrain criti-

cal speech, government suppression of controversial speech

by public broadcasters violates the First Amendment. The

special characteristics of broadcasting do not support this

ban; this Court has repeatedly made clear that the sup-

pression of controversial broadcast speech cannot be justi-

fied under the First Amendment.

Nor can the Spending Power be employed to violate

the First Amendment freedoms of public broadcasters

to spend nonfederal funds on editorializing. Like commer-

cial broadcasters, public broadcasters were established as

independent journalistic enterprises free from Govern-

ment control. The Government has advanced no compel-

ling interest that would permit this extraordinary attempt

at governmental suppression of controversial speech, and

these restrictions cannot be justified as designed to pre-

vent speech by state entities, to prevent government sub-

sidization of “unpopular” speech or to protect public

broadcasters from government efforts to influence edi-

torial content.

ARGUMENT

I. EDITORIALIZING MAKES A VITAL CONTRIBU-

TION TO THE MARKETPLACE OF IDEAS, AND

PROTECTION OF THE RIGHT TO EDITORIALIZE

IS ESSENTIAL TO A FREE PRESS

Protection for the expression of opinion is central to

the First Amendment. Since this Nation’s earliest days,

both formal editorializing and less formal expression of

editorial opinion have played a critical role in informing

the public. They have affected the course of our history by

igniting public concern and stimulating public debate on

matters of public interest. The editorials of any period

have reflected the pulse of the Nation; “they reflect the

incidents, causes, and struggles in American life.” ?

Editorials perform a variety of functions. Some are

designed largely to inform and educate; others to intrigue

and provoke; others to uncover societal] injustices or gov-

ernmental corruption; and yet others simply to entertain

the audience.’ The editorial “is like the period at the end

of the sentence; it provides a finality and an additional

meaning to what has been said before.” *

Government—including Congress, the President, the

bureaucracy, and this Court—is frequently a target of

criticism in some of the most influential editorials.® The

editorial is thus often the ideal format for speech designed

“to invite dispute,” “to provok[e] and challeng[e],” and

to “strike at prejudices and preconceptions and [to] have

profound and unsettling effects as it presses for accept-

2 W. Sloan, Pulitzer Prize Editorials (inside cover) (1980) [here-

inafter cited as Pulitzer Editorials |.

3 E. Routt, Dimensions of Broadcast Editorializing 86 (1970)

{hereinafter cited as Broadcast Editorializing}.

4 Linn, /ntroduction to Broadcast Editorializing at 9. See also

J. Hulteng, The Opinion Function 12-13 (1973).

5 Broadcast Editorializing at 86-196. The legislative history of

Section 399 indicates that fear of this criticism was a motivating

factor in the passage of Section 399. See pp. 28-29 infra.

ance of an idea.” Terminiello v. Chicago, 337 U.S. 1, 4

(1949). As such editorial speech is a vital part of our

“profound national commitment... that debate on public

issues should be uninhibited, robust, and wide-open.” New

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

The expression of editorial opinion has greatly in-

fivenced the course of public affairs. The forerunners to

the modern editorial were the newsletter, the pamphlet

and the old news ballad.* Each of these played an in-

fluential cole in the colonial period and post-American

Revolution era. Early “editorial” writers during this

period included Benjamin Franklin, John Adams, John

Dickinson, Thomas Paine, and John Peter Zenger. British

attempts to suppress the published opinions of Zenger and

others played a large part in the adoption of the First

Amendment.’ By the end of the Nineteenth Century the

editorial had become commonplace in American news-

papers.* Numerous editorials have had a major impact on

our history, influencing the election of Presidents,’ the

mobilization of popular support for the American role in

World War I and World War II,” and the mobilization of

popular opinion against racial] injustice." Broadcast edi-

* News ballads were songs interpreting current events. They had

a significant effect on the early American populace. J. Hart, Views

on the News: The Developing Editorial Syndrome 1500-1800, at

198 (1970).

7L. Levy, Legacy of Suppression: Freedom of Speech and Press

in Early American History 128-33 (1960).

8 J. Hart, supra, at 203.

® An editorial by William Allan White in the Emporia (Kansas)

Gazette “is given considerable credit in the election of William

McKinley as President of the United States.” Broadcast Editorializ-

ing at 77.

10 Pulitzer Editorials at 7, 59.

11 Grover Cleveland Hall’s series of anti-Klan editorials in the

Montgomery Adviser during the 1920’s are good examples of the

influence editorials can have on public affairs. “As a consequence

of Hall’s campaign, victims of floggings, too frightened before,

talked to law officers and journalists, numerous Klansmen were

torials have also made vital contributions to the market-

place of ideas."* Recognizing these contributions, the FCC

has long encouraged licensees to editorialize."”

convicted, and the number of floggings in Alabama declined dra-

matically.” Jd. at 31. Governor Harry Byrd of Virginia reported

that the editorials in the Virginia-Pilot “had more to do than any

other single outside urging in conv'ncing me that I should make

one of my major recommendations the passage of a drastic anti-

lynching law providing that lynching be a specific state offense.”

Id. at 33. These and later editorials on the same subjects “sparked

national interest in [anti-lynching) law[s}.” /d.

12 Broadcast Editorializing at 112-20, 125-380; Hearings on Broad-

cast Editorializing Practices Before Subcomm., of the House Comm.

on Interstate and Foreign Commerce, 88th Cong., 1st Sess, 296

(1963) [hereinafter cited as Hearings on Broadcast Editorializing).

As Americans rely more and more upon television and radio as

their primary source of information, the role of editorial speech

by broadcasters takes on increasing importance.

[Broadcasting is} a vital part of our system of communication,

The electronic media have swiftly become a major factor in

the dissemination of ideas and information. ... To a large

extent they share with the printed media the role of keeping

people informed.

CBS v. DNC, 412 U.S. 94, 116 (1978) (opinion of Burger, C.J.).

See also United States v. Southwestern Cable Co,, 392 U.S. 157,

177 (1968); Kalven, Broadcasting, Public Policy and the First

Amendment, 10 J.L. & Econ, 15, 16 (1967).

13 See In re Editorializing by Broadcast Licensees, 13 F.C.C, 1246

(1949) ; Programming Inquiry, 44 F.C.C, 2308, 2314 (1960) ; Hear-

ings on Broadcast Editorializing at 87 (statement of Chairman E,

William Henry on behalf of the FCC); WHDH, Inc., 16 F.C.C.2d 1,

10, 12-13 (1969); RKO General, Inc., 44 F.C.C.2d 149, 219 (1969) ;

Miners Broadcasting Services, Inc., 20 F.C.C.2d 1061 (1970).

In Mayflower Broadcasting Corp., 8 F.C.C, 388, 339-41 (1940),

the FCC suggested that editorializing by commercial and noncom-

mercial broadcasters might be impermissible. The so-called May-

flower doctrine generated substantial criticism in its time and the

FCC clearly repudiated such a policy in /n re Editorializing by

Broadcast Licensees, 18 F.C.C, 1246 (1949). See, ¢.g., Hearings on

Broadcast Editorializing at 151 (statement of Commissioner Ford)

(“Commission's decision in the Mayflower case was roundly criti-

cized by Congress.”); Hearings on S-1333 Before Subcomm, of

Il. GOVERNMENT SUPPRESSION OF CONTROVER-

SIAL SPEECH IS PRESUMPTIVELY UNCONSTI-

TUTIONAL

Difficult First Amendment questions may arise where

government action indirectly impinges on the rights of

free speech or press. However, the statute involved here

presents no such difficult questions. It was avowedly

designed to suppress a critical category of speech that

makes a central contribution to the marketplace of ideas.

The First Amendment, having been “designed to pre-

vent the Government from suppressing information,” *

does not tolerate such interdiction of speech on contro-

versial issues, Time and time again this Court has in-

validated governmental efforts at suppression despite

the creative justifications that have been advanced. £.g.,

United States v. Grace, 103 8. Ct. 1702 (1983) (prohibi-

tion of displays of banners on Supreme Court grounds in

order to protect order and decorum at the Court) ; Bolger

v. Youngs Drug Products Corp., 108 8. Ct. 2875 (1983)

(prohibition of mailing unsolicited contraceptive adver-

tisements); Brown v. Hartlage, 456 U.S. 45 (1982) (pro-

hibition of candidate’s promise to lower his salary if

elected); Metromedia, Inc. v. City of ‘San Diego, 458

U.S. 490 (1981) (plurality opinion) (prohibition of bill-

board advertising); Schad v. Mount Ephraim, 452 U.S.

61 (1981) ‘prohibition of all live entertainment as a

zoning restriction); Consolidated Edison Co, v, Public

Service Commission, 447 U.S. 530 (1980) (prohibition

of controversial] speech in utility bill inserts); Carey v.

Brown, 447 U.S. 455 (1980) (prohibition of picketing in

residential neighborhoods in order to protect privacy) ;

Village of Schaumberg v. Citizens for a Better Environ-

Comm, on Interstate and Foreign Commerce, 80th Cong., lat Seas.

110-12 (1947) (statement of Justin Miller); L. White, The Ameri-

can Radio 176-78 (1947); Note, The Mayflower Doctrine Scuttled,

59 Yale L.J. 759 (1950); Lawrence, Question of Editorial Opinions

on Radio, N.Y. Sun, Mar. 3, 1948, at 29, col. 1,

4 Bolger v. Youngs Drug Products Corp., 103 8, Ct, 2875, 2887

(1983) (Rehnquist, J., concurring in the judgment).

ment, 444 U.S, 620 (1980) (prohibition of solicitation by

charities devoting more than 25% of revenue to over-

head); First National Bank v, Bellotti, 435 U.S. 765

(1978) (prohibition of corporate speech in order to pre

vent undue influence); Landmark Communications v.,

Virginia, 435 U.S. 829 (1978) (prohibition of speech

about confidential judicial misconduct proceedings) ; Lin-

mark Associates, Inc. v. Township of Willingboro, 481

U.S. 85 (1977) (prohibition of “for sale signs” in order

to halt white flight); City of Madison Joint School Dis-

trict No. 8 v, Wisconsin Employment Relations Commis-

sion, 429 U.S. 167 (1976) (prohibition of teachers’ speak-

ing at school board meetings); Nebraska Press Associa-

tion v. Stuart, 427 U.S. 589 (1976) (prohibition of news-

paper coverage of murder in order to preserve right to

fair trial); Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976) (pro-

hibition of commercial] speech about drug prices in order

to maintain high standards for pharmacies) ; Erznoznik v.

City of Jacksonville, 422 U.S. 205 (1975) (prohibition

on drive-in movies containing nudity in order to protect

passersby); Police Department v. Mosley, 408 U.S, 92

(1972) (prohibition of picketing to protest employment

discrimination in order to prevent disruption of nearby

school); Organization for a Better Austin v. Keefe, 402

U.S, 415 (1971) (prohibition of leafletting in residential

neighborhood in order to protect privacy); Brandenburg

v. Ohio, 395 U.S. 444 (1969) (prohibition of advocacy of

doctrines cf violence in order to minimize likelihood of

violent assemblies) ; Tinker v. Des Moines School District,

393 U.S, 503 (1969) (prohibition of wearing of arm-

bands in order to avoid disruption of schoo) environ-

ment); Tally v, California, 382 U.S. 60 (1960) (pro-

hibition of anonymous handbills in order to be able to

identify those responsible for fraud, false advertising or

libel) ; Terminiello v. Chicago, 387 U.S, 1 (1949) (prohi-

bition of race-baiting speech in order to prevent breach

of peace); Martin v. Struthers, 319 U.S. 141 (1948)

(prohibition of door-to-door distribution of circulars in

order to protect privacy in one’s home); Thornhill v.

Alabama, 310 U.S, 88 (1940) (prohibition of picketing

in order to avoid breach of peace or disruption of in-

dustrial relations): Schneider v. State, 308 U.S. 147

(1939) (prohibition of leafletting in order to reduce

litter); Stromberg v. California, 288 U.S. 359 (1981)

(prohibition of display of red flag in order to suppress

the spread of communism or anarchy).

Despite allegations of compelling justification this Court

has invalidated a governmental prohibition of editorial-

izing. In Mills v. Alabama, 384 U.S. 214 (1966), an

Alabama statute was construed to prohibit the publica-

tion of political editorials on election day. A newspaper

editor was charged with publishing an election day edi-

torial in favor of changing Birmingham's form of govern-

ment. The statutory prohibition was said to be necessary

to protect the public from confusing last-minute charges

that could not be answered before the election, Jd. at

219-20, Nonetheless, the Court held that, “[i]t is difficult

to conceive of a more obvious and flagrant abridgment

of constitutionally guaranteed freedom of the press.” Jd.

at 219. For,

[s]uppression of the right of the press to praise or

criticize governmental agents and to clamor and con-

tend for or against change . . . muzzles one of the

very agencies the Framers of our Constitution

thoughtfully and deliberately selected to improve our

society and keep it free,

Id. Flowing Mills, the Court has reaffirmed “unequivo-

cally \'e protection afforded to editorial judgment and

to the ree expression of views on these and other issues,

however controversial.” Pittsburgh Press Co, v. Human

Relations Commission, 418 U.S, 876, 891 (1973). And

just recently in Consolidated Edison Co. v. Public Service

Commission, 447 U.S, 580 (1980), this Court struck down

a statute that barred utility companies from expressing

“their opinions or viewpoints on controversial issues of

public policy” in utility bill inserts. /d. at 533-34,

In light of these decisions, government suppression of

editorials—whatever the justification—cannot survive un-

der the First Amendment. Nor is this any less true in

the broadcast medium. While the Government urges that

the “special characteristics of broadcasting” ™ somehow

support the statutory prohibition, here, as the District

Court found, the Government has identified no charac-

teristic of the broadcast medium thut supports such sup-

pression. 547 F. Supp. at 384. Indeed, the very alleged

“scarcity” of broadcast frequencies strongly suggests both

the unwisdom and unconstitutionality of suppressing edi-

torial speech on the limited number of frequencies that

are available.’*

This Court’s decisions hardly support the Government’s

position. To be sure this Court in Red Lion Broadcasting

Co, v. FCC, 395 U.S. 367 (1969), held that it was consti-

tutional for the FCC to require broadcasters who present

political editorials and other speech on controversial issues

of public importance to present opposing views—a re

quirement subsequently held invalid as to the print press.”

But it did so based on the express findings that there was

no direct restraint on speech and that any indirect effect—

which “would indeed be a serious matter”’—was “at best

speculative.” Jd. at 3938. As the Court stressed

Brief for the United States at 28-32 [hereinafter cited as

“Brief” )}.

‘© Moreover, numerous recent studies indicate that there is sub-

stantial reason to question the Government’s premise as to the

continued scarcity of broadcast frequencies. See, e.., Staff of Sen-

ate Comm. on Commerce, Science and Transportation, 98th Cong.,

1st Sess., Print and Electronic Media: The Case for First Amend-

ment Parity 2, 54, 56-83 (1983) (Senate Print No. 98-50); FCC

Legislative Recommendations to Congress for Revision of the Com-

munications Act, F.C.C. Report No. 608 (1981); Office of Plans and

Policy, Federal Communications Commission, Measurement of Con-

centration in Home Video Markets 90-97 (Dec. 1982); Stern,

Krasnow & Senkowski, The New Video Marketplace ~d the Search

for a Coherent Regulatory Philosophy, 32 Cath. U. L. nev. 529, 562-

66 (1983); Fowler & Brenner, A Marketplace Approach to Broad-

cast Regulation, 60 Tex. L. Rev. 207, 221-26 (1982).

17 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257

(1974).

There is no question here of the Commission’s refusal

to permit the broadcaster to carry a particular pro-

gram or to publish his own views .... Such ques-

tions would raise more serious First Amendment

issues.

Id. at 396. Moreover, the decision in Red Lion, in sus-

taining the requirement of the fairness doctrine that

broadcasters discuss controversial issues, made clear that

in broadcasting the First Amendment is best served

by encouraging, rather than suppressing, controversial

speech. Jd. at 389-90, 392, 394.

The two other cases permitting Congress and the FCC

to regulate broadcast programming, CBS, Ine. v. FCC,

453 U.S. 367 (1981); FCC v. Pacifica Foundation, 438

U.S. 726 (1978), likewise provide no justification for the

suppression of editorializing.’*

The limited access requirement upheld in CBS, Inc. v.

FCC was held not to suppress broadcaster speech. The

Court emphasized that “the statute does not impair the

discretion of broadcasters to present their views on any

issue.” 453 U.S. at 397. And the statute provided only

a limited right of access to the media for certain federal

candidates. As the Court noted, “it has never approved

a general right of access to the media.” Jd. at 396. In

Columbia Broadcasting System v. Democratic National

Committee, 412 U.S. 94 (1973), the Court refused to

recognize a general right of access for editorial advertis-

ing because it would unacceptably run “the risk of an

enlargement of Government control over the content of

broadcast discussion of public issues.” Jd. at 127.*

18 See also FCC v. National Citizens Comm'n for Broadcasting,

436 U.S. 775, 801 (1978) (upholding restrictions on cross-ownership

of newspapers and broadcast licenses which would not in any way

“limit the flow of information”).

19 “The broadcasting industry is entitled under the First Amend-

ment to exercise ‘the widest journalistic freedom consistent with its

public [duties).’"” CBS, Ine. v. FCC, 458 U.S. at 395. (quoting CBS

v. DNC, 412 U.S. at 110).

The only case in which the Court has even suggested

that suppression of broadcaster speech would be permis-

sible was FCC v. Pacifica Foundation. But that case up-

held only the FCC’s limited regulation of the broadcast

of indecent material because of concern that “[p]atently

offensive, indecent material” would be “accessible to

children, even those too young to read.” 438 U.S. at

748-49. The Court thought it necessary “to emphasize the

narrowness of [its] holding” ‘id. at 750). Stressing that

the FCC had only “channelled” indecent speech away

from early afternoon hours when children were listening

(id. at 731, 750), it noted that the FCC did not “un-

equivocally close[] . . . broadcasting to speech of this

sort.” Jd. at 750 n.28.” Section 399, in contrast, is not

designed to protect children from indecent speech by

channeling broadcasts to particular hours; it constitutes

a heavy-handed suppression of speech necessary to an in-

formed citizenry.

Thus, despite the Government’s contention, the pro-

hibition of editorializing finds no support in this Court’s

decisions. In the broadcast medium, as in the print press,

the suppression of speech on controversial issues is

impermissible.

Section 399’s prohibition of editorial speech is especially

egregious for three further reasons.

First, Section 399’s prohibition is based on the con-

tent of speech. It bans only one kind of speech—editorial

speech. This Court has always recognized that the First

Amendment is particularly designed to prevent content-

based suppression and has “sustained content-based re-

strictions only in the most extraordinary circumstances,”

* The limited nature of tis Court’s decision in Pacifica is further

evidenced by the special First Amendment treatment given to child

pornography statutes in New York v. Ferber, 102 S. Ct. 3348 (1982).

There the Court relied on Pacifica to support the proposition that

protecting the well-being of minors is a “government objective of

surpassing importance” that justifies affording a lesser degree of

First Amendment protection. /d. at 3355.

Bolger v. Youngs Drug Products Corp., 103 S. Ct. 2875,

2879 (1983). This is true whether the government seeks

to bar discussion on a particular topic ur more broadly

seeks to bar a particular type or format of speech. Metro-

media, Ine. v. City of San Diego, 453 U.S. 490, 514, 518-

19 (plurality opinion) ; Consolidated Edison, 447 U.S. at

537-38; First National Bank v. Bellotti, 485 U.S. 765,

784-85 (1978). To allow the Government to ban partic-

ular categories of speech would enable it to suppress the

potentially most effective and critical form of speech, and

thus to suppress criticism.

Second, Section 399 will have a serious chilling effect on

public broadcasting because there is no clear-cut line

between editorializing and other protected speech. While

the Broadcast Bureau of the FCC has said that it “be-

lieves that Section 399 should be interpreted as proscrib-

ing programs commonly recognized as editorializing,”

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

Representative Springer—the editorializing ban’s leading

proponent—conceded that “We went over that with our

counsel in every way, and we could not come up with any

language we thought was meaningful... .” 113 Cong.

Rec. 26,388 (1967). The line between editorials, com-

mentary, analysis, and investigatory journalism is often

less than clear. The prohibition on editoriais will have an

inevitable chilling effect on speech that “falls close to the

line separating the lawful and the unlawful.” Speiser v.

Randall, 357 U.S. 513, 526 (1958).*'

Finally—whether or not section 399 itself was adopted

because of government hostility to controversial speech

(see below pp. 25-29) —sustaining Section 399 would con-

vey a message to noncommercial and commercial broad-

casters alike that Congress or the FCC may act to sup-

press broadcast speech on public issues if it becomes too

21 The Broadcast Bureau further defined editorializing as “the

propagation of the licensees’ own views on public issues”’ by man-

agement or others speaking on behalf of the licensees. 45 F.C.C.2d

at 302. This definition also fails to distinguish adequate/y between

editorials and other journalistic speech.

critical or controversial. Thus, Section 399 affects far

more than editorializing; it inhibits all controversial

speech. In the long run, the public may be deprived of a

wide variety of ideas and information by the ban on

editorials.

Ill THE PROHIBITION ON EDITORIALIZING CAN-

NOT BE JUSTIFIED BY THE SPECIAL CHARAC-

TERISTICS OF PUBLIC BROADCASTING

Nonetheless, the Government seeks to justify the stat-

ute’s suppression of editorial speech because public broad-

casters are partially subsidized by federal funds. Brief

at 33-47. It suggests that Section 399 is a valid exercise

of Congress’ Spending Power and relies heavily on this

Court’s recent decision in Regan v. Taration With Repre-

sentation (“TWR”), 103 S. Ct. 1997 (1983). In TWR

the Court upheld a denial of tax exemption status to an

organization engaged in lobbying activity. It held that

“Congress has not infringed any First Amendment rights

or regulated any First Amendment activity. Congress has

simply chosen not to pay for TWR’s lobbying.” Id. at

2001.

As discussed below, TWR is clearly inapposite both

because T7WR did not involve restrictions on speech by a

journalistic entity and because, unlike the statute in

TWR, Section 399 is not a restriction limited to the ex-

penditure of federa) funds. If a station receives any

CPB funding, Section 399 prohibits expenditures for edi-

torializing whatever the source of the funds used for

editorializing.~

2 Section 399 is distinguishable from TWR for yet another

reason. Section 399 discriminates on the basis of speech content

by prohibiting the category of speech that is potentially most

critical of Government and, as discussed below, was designed to

suppress such critical speech. “The case would be different if Con-

gress were to discriminate invidiously in its subsidies in such a

way as to “‘aim at the suppression of dangerous ideas.’” TWR,

103 S. Ct. at 2002 (quoting Cammarano v. United States, 358 U.S.

498, 513 (1959)). “A statute designed to discourage the expres-

sion of particular views would present a very different question.”

103 S. Ct. at 2004 (Blackmun, J., concurring).

A. The First Amendment Precludes Governmental In-

terference With the Editorial Freedom of Inde-

pendent Journalistic Entities Even When They Are

Dependent on Government Funding

Although the FCC did not specifically set aside fre-

quencies for noncommercial and educational users until

1939, public broadcasting has been in existence since 1919

when the University of Wisconsin began broadcasting

over station 9XM.” Many of the early licensees were

educational institutions.*

Public broadcasting licensees were, like commercial

licensees, governed by the Radio Act of 1927 and then

the Communications Act of 1934.*° The history of these

Acts is well known.*’ Congress rejected federal govern-

ment ownership and operation of broadcast stations. In-

stead, Congress chose to adopt a system of public trustee-

ship under which licensees were to be responsible and

accountable for selecting materia] as fiduciaries for the in-

terests of the people as a whole. Central to this approach,

was Congress’ evident determination to “preserve values

of private journalism” by vesting licensees, commercial

and noncommercial] alike, “with the widest journalistic

freedom consistent with [their] public obligations.” CBS

v. DNC, 412 U.S. at 105, 109-11. This Court has con-

sistently stressed that the exercise of independent edi-

torial judgment is essential to the integrity and inde-

28 Report of the Carnegie Commission on the Future of Public

Broadcasting, A Public Trust 33 (1979) [hereinafter cited as

Second Carnegie Report); Note, The Public Broadcasting Act:

The Licensee Editorializing Ban and the First Amendment, 13

U. Mich. J.L. Ref. 541, 543 (1980).

2 Second Carnegie Report at 34.

% Ch. 169, 44 Stat. 1162 (1927).

248 Stat. 1064 (1934), as amended, 47 U.S.C. §§151 et seq.

(1976).

27 See, e.g., CBS v. DNC, 412 U.S. at 108-10; Red Lion Broad-

casting Co. v. FCC, 395 U.S. at 379-86; National Broadcasting Co.

v. United States, 319 U.S. 190, 210-17 (1943).

pendence of journalistic entities which Congress so care-

fully sought to preserve. Jd. at 111, 116, 124-25; FCC v.

Mid-West Video Corp., 440 U.S. at 704-05.

Noncommercial broadcasters were viewed as “an es-

sential element ‘of an adequate national television sys-

tem’” that would “ ‘provide a much needed source of

cultural and informational programming for all audi-

ences... .’” ** As an integral part of the broadcasting

community, Congress intended public broadcasters to en-

joy the same journalistic independence as other licensees,

for “the Act’s terms, purposes, and history all indicate

that Congress ‘formulated a unified and comprehensive

regulatory system for the [broadcasting] industry.’”

United States v. Southwestern Cable Co., 392 U.S. 157,

168 (1968) (quoting FCC v. Pottsville Broadcasting Co.,

809 U.S. 134, 187 (1940) ).”

It was not until 1962 that Congress provided the first

federal assistance to public broadcasters. The Educa-

tional Television and Facilities Act of 1962 authorized

the expenditure of $32 million to aid in the construction

of noncommercial broadcasting facilities. Nothing in

this Act purported to change the independent journalistic

status of educational stations. In fact, Congress added

a specific prohibition against governmental “direction,

supervision, or control” of public broadcasting. 47 U.S.C.

§ 398(a).

28 United States v. Southwestern Cable Co., 392 U.S. 157, 175

n.41 (1968) (quoting H.R. Rep. No. 1559, 87th Cong., 2d Sess. 3-4

(1962) ).

29 See Community Television of Southern California v. Gottfried,

103 S. Ct. 885 (1983) (Communications Act does not impose greater

obligation on public broadcasters to provide special programming

for hearing impaired); Accuracy in Media, Inc. v. FCC, 521 F.2d

288, 291 (D.C. Cir. 1975), cert. denied, 425 U.S. 934 (1976).

* Pub. L. No. 87-447, 76 Stat. 64 (1962).

31 While the Section’s language states that government officials

are not “authorize[d]” to engage in such activities, the section is

captioned “prohibition” and was clearly intended to be such. H. Rep.

No. 999, 87th Cong., Ist Sess. 8 (1961) ; 108 Cong. Rec. 3532 (1962)

Five years later, in response to the report and rec-

ommendations of the First Carnegie Commission on the

Future of Public Broadcasting, Congress enacted the

Public Broadcasting Act of 1967. That Act provided

additional construction assistance and also, for the first

time, appropriated federal funds to supplement private

and state and local governmental support for the pro-

duction of cultural and educational programs. Again,

Congress emphasized its determination that public sta-

tions retain their status as independent journalistic en-

tities. Thus, Congress noted the central role public broad-

casting plays as an integral part of the Nation’s broad-

cast community, 47 U.S.C. § 396(a) (5), and reiterated

its intention “to afford [public broadcasters] maximum

protection from extraneous interference and control.” Id.

§ 396(a)(7). “We wish to state in the strongest terms

possible that it is our intention that loca] stations be

absolutely free to determine for themselves what they

should or should not broadcast.”’ S. Rep. No. 222, 90th

Cong., 1st Sess. 11 (1967). In addition to § 398(a)’s

prohibition of governmental interference, Congress took

other specific measures to ensure that noncommercial

broadcasters would be insulated from any governmental

attempts at influence or control. The key to this insula-

tion was the creation of an independent, private “Corpor-

ation for Public Broadcasting” responsible for disbursing

federal funds while affording broadcasters complete

journalistic autonomy. 47 U.S.C. § 396: Community-

Service Broadcasting v. FCC, 593 F.2d 1102, 1107-08

(D.C. Cir. 1978) (en banc).

Thus, Congress has made clear that public broadcasters

are to play a valuable role as an integral part of the

(remarks of Rep. Walter); id. at 353% (remarks of Rep. Harris) ;

id. at 3549 (remarks of Rep. Barry).

32 Carnegie Commission on Educationa! Television, A Program

for Action (1967).

33 Pub. L. No. 90-129, 81 Stat. 367 (1967) (codified at 47 U.S.C.

§§ 390 et seq.).

Nation’s press. It has gone to extraordinary lengths to

preserve the journalistic integrity and independence of

noncommercial] licensees. Without doubt, Congress meant

for public broadcasting stations to be something very

different from government-run entities.”

Having determined to preserve the traditional jour-

nalistic function of noncommercial broadcasters and gen-

erally to preserve the editorial freedom necessary to that

independence, the First Amendment does not permit the

Government to intrude selectively by barrine editorial-

izing. Subsidization of an independent journalistic en-

tity by government should not mean that the entity loses

its First Amendment rights. Numerous lower courts in

a variety of contexts have held that the fact that school

newspapers or other journalistic entities are government-

subsidized does not in any way lessen the First Amend-

ment rights of the editors of those publications.”

* Not surprisingly the one provision of the 1967 Act other than

Section 399 at variance with this approach has also been struck

down as unconstitutional. In Community-Service Broadcasting v.

FCC, the District of Columbia Circuit invalidated 47 U.S.C.

§ 399(b), which required all noncommercial stations receiving fed-

eral funding to make audio recordings of all broadcasts ‘in which

any issue of public importance is discussed.” The Court found that

this requirement posed a constitutionally unacceptable “risk of

direct governmental interference in program content.” 593 F.2d

at 1105.

The Act has also been construed in other cases to avoid indirect

intrusions upon licensee editorial freedom. In Accuracy in Media,

Inc. v. FCC, 521 F.2d 288 (D.C. Cir. 1975), cert. denied, 425 U.S.

934 (1976), the court held that the FCC could not enforce the Act’s

“objectivity and balance” of program requirement against CPB

since such enforcement would entail governmental supervision in

contravention of the statutory scheme providine licensee freedom

from interference. See also Network Project v. CPB, 561 F.2d 963

(D.C. Cir. 1977) (no private cause of action against Corporation

For Public Broadcasting to enforce these requirements), cert. de-

nied, 434 U.S. 1068 (1978).

% Antonelli v. Hammond, 308 F. Supp. 1329, 1337 (D. Mass.

1970); Avins v. Rutgers, 385 F.2d 151, 153-54 (3d Cir. 1967), cert.

denied, 390 U.S. 920 (1968). See also Bazaar v. Fortune, 476 F.2d

In particular, the First Amendment protects against

governmental efforts to interfere with the editorial free-

dom of independent journalistic entities receiving govern-

ment subsidies. For example, the lower federal courts

without exception have held that the First Amendment

precludes state universities from banning controversial

speech by subsidized school publications.** Just as govern-

ment cannot interfere with the journalistic integrity of a

student publication, so too the First Amendment does not

permit Congress to pick and choose among the types of

permissible speech by public broadcasters and to ban the

most controversial and potentially critical form of speech.*

570, 575 (5th Cir.), aff'd as modified en banc, 489 F.2d 225 (5th

Cir. 1973), cert. denied, 416 U.S. 995 (1974); Gambino v. Fairfax

City School Board, 429 F. Supp. 731, 734 (E.D. Va.), aff'd, 564

F.2d 157 (4th Cir. 1977); The Luparar ~. Stoneman, 382 F. Supp.

495, 499-500 (D. Vt. 1974); Korn v. Elkins, 317 F. Supp. 138, 143

(D. Md. 1970); Developments in the Law—Academic Freedom, 81

Harv. L. Rev. 1045, 1130 (1968).

% Bazaar v. Fortune, 476 F.2d at 575; Trujillo v. Love, 322

F. Supp. 1266, 1270 (D. Colo. 1971); Dickey v. Alabama State

Board of Education, 273 F. Supp. 613 (M.D. Ala. 1967), vacated

as moot sub nom. Troy v. State Univ., 407 F.2d 515 (5th Cir. 1968) ;

Schiff v. Williams, 519 F.2d 257, 260 (5th Cir. 1975); see also

Joyner v. Whiting, 477 F.2d 456, 460 (5th Cir. 1973); Lee v. Board

of Regents, 441 F.2d 1257 (7th Cir. 1971); Zucker v. Panitz, 299

F. Supp. 102 (S.D.N.Y. 1969); ACLU v. Radford College, 315

F. Supp. 893, 896-97 (W.D. Va. 1978) ; Antonelli v. Hammond, 308

F. Supp. 1329, 1837 (D. Mass. 1970).

37 This Court has also recognized that the journalistic nature of

an entity implicates First Amendment protections against State

interference. In PruneYard Shopping Center v. Robins, 447 U.S.

74 (1980), the Court held that a state could force a shopping center

owner to let others speak on his property. The Court distinguished

a shopping center trom a journalistic enterprise. A statute impos-

ing on the First Amendment rights of a journalistic entity would be

different, for that would be “an ‘intrusion into the function of

editors.’” 447 U.S. at 88 (quoting Miami Herald Publishing Co.

v. Tornillo, 418 U.S. at 258).

In Board of Education v. Pico, 102 S. Ct. 2799 (1982), this Court

found a First Amendment limitation on school board control over

the content of school libraries. Here, this Court need not reach the

B. The First Amendment Bars Exercise of the Spend-

ing Power To Suppress Editorial Speech

TWR is distinguishable for another reason. Section

399, unlike the statute in 7WR, imposes an unconstitu-

tional condition on the receipt of a governmental benefit.

In TWR, organizations that were denied certain tax bene-

fits because they engaged in substantial lobbying activity

contended that this denial was an unconstitutional condi-

tion on the receipt of those benefits.“ But this Court dis-

agreed, finding that the Interna] Revenue Code provisions

were narrowly drawn regulations governing federal

spending (by way of tax benefits) that did not infringe

on First Amendment activity.

The Code does not deny TWR the right to receive

deductible contributions to support its non-lobbying

activity, nor does it deny TWR any independent bene-

fit on account of its intention to lobby. Congress has

merely refused to pay for the lobbying out of public

monies. . . . Congress has not infringed any First

Amendment rights or regulated any First Amend-

ment activity.

103 S. Ct. at 2001. See also id. at 2005 (Blackmun, J.,

concurring) (any significant restriction of TWR’s other

channels of communication would pose insurmountable

First Amendment problems). The carefully drawn In-

ternal Revenue Code provisions permitted TWR to secure

the tax benefits for its nonlobbying activity by setting

up a lobbying affiliate organization, which would then

perform all lobbying activities. LR.C. § 501 (ec) (4); see

question of First Amendment limits on government control over its

own expression, see generally Muir v, Alabama Educational Tele-

vision Comm'n, 688 F.2d 1033 (5th Cir. 1982) (en banc), cert.

denied, 103 S. Ct. 1274 (1983), since it is clear that Congress in-

tended for public broadcasters to be independent journalistic

entities.

38 Such organizations were denied tax exempt status and the

ability to receive contributions that could be deducted by the indi-

vidual contributors. I.R.C. § 501(c) (3), (ce) (4) (1976).

103 S. Ct. at 2000 & n.6; id, at 2004-05 (Blackmun, J.,

concurring).

In contrast to this narrow regulation of the use of fed-

eral funds in TWR, Section 899 does not merely deny

federal funds for editorializing. It directly restrains

First Amendment-protected activity through a sweeping

ban on the use of funds from any source for editorializ-

ing.” As the District Court found, “CPB funding in

1977 did not constitute more than approximately 25%

of the funding received by funded noncommercia! broad-

casters and... no broadcaster receives more than ap-

proximately 33% of its funds through CPB grants.” 547

F, Supp. at 385. Most public broadcasting funding comes

from private, corporate, and loca] governmental sources,

and many stations received only small federal grants.

CPB, Public Broadcasting Income: Fiscal Year 1y¥82, at 4

(1983).

Section 399 fails to permit public broadcasters to set up

affiliate entities to spend nonfederal funds on editori-

alizing. Broadcast editorializing by a separate entity is

impossible since an additional frequency is unlikely to be

available for a nonfederally funded affiliate and if the

original entity were to make time available to its affiliate

on its own frequency, Section 399 would be equally vio-

lated. Section 399 thus bars a station receiving any CPB

funding from all editorializing no matter how insignifi-

cant the federal funding and how unrelated that funding

is to editorializing.”” Section 399 infringes both the

% Section 399 originally prohibited editorializing by public broad-

casting stations whether or not they received CPB funding. 47

U.S.C. § 399 (1976). Congress amended this provision in the Public

Broadcasting Amendment Act of 1981, Pub. L. No. 87-35, 95 Stat.

730, making the ban on editorializing applicable only to stations

receiving some CPB funding.

# The government argues that there would be a federal subsidy

involved in any editorial speech by noncommercial broadcasters be-

cause of federal subsidies of noncommercial station overhead or

capital expenses. Brief at 44-45. Such a miniscule and indirect

stations’ First Amendment right to spend nongovern-

mental funds on editorial speech and the rights of non-

governmental contributors to make contributions for edi-

torializing.

The Government nonetheless argues that here the use

of nonfederal funds is not necessarily restricted since

federal subsidy is too attenuated to justify the outright suppression

of privately funded speech. In today’s society, if one traces almost

any activity back far enough, there is bound to be some incidental

federal support. To justify the suppression of speech on such a

basis would reduce the First Amendment to a dead letter. It is note-

worthy that the Government has urged this Court in another pend-

ing case to adopt a commonsense approach rather than to follow

to the end “the economic ripples generated by federal aid.” Brief

for Respondents at 15, Grove City College v. Bell, No, 82-792 (U.S.,

filed Aug. 5, 1983).

The broad ramifications of the Government's argument are illus-

trated by a recent Government proposal to limit political advocacy

by all recipients of federal grants and contracts. 48 Fed. Reg. 3348

(Jan. 24, 1983). As is urged here, it was suggested that such a

widespread curtailment of First Amendment activity was constitu-

tional because the receipt of federal funds for overhead costs effec-

tively subsidized political activity. The proposal was recently with-

drawn due to its obvious constitutional difficulties. OMB Release

No. 82-9 (Mar. 10, 1983). But the fact that it was made demon-

strates the potentially wide repercussions of a ruling that the re

ceipt of federal funds (no matter how indirect or inconsequential )

justifies the suppression of protected First Amendment activity

financed by private funding.

41 See Buckley v. Valeo, 424 U.S. 1, 19, 24-25 (1976). The Gov-

ernment suggests that this deprivation is permissible because pub-

lic broadcasters are free to express their views on commercial sta-

tions or in letters to their contributors. Brief at 41-42, 44. But this

Court has repeatedly rejected such attempts to suppress speech on

the ground “that it may be exercised in some other place,” Schneider

v. State, 308 U.S. 147, 163 (1989). See Bolger v. Youngs Drug

Products Corp., 103 S. Ct. at 2882 n.18; Consolidated Edison Co.,

447 U.S. at 541 n.10; Spence v. Washington, 418 U.S. 405, 411 & n.4

(1974). Allowing the Government to specify the medium for criti-

cal speech would largely undermine the First Amendment.

“any station that finds the ban on editorializing unduly

restrictive is free to decline CPB grants.” Brief at 41,

42. But the guarantees of the Constitution, “so carefully

safeguarded against direct assault,” are not “open to

destruction” by such indirect means. Frost & Frost

Trucking Co. v. Railroad Commission, 271 U.S. 5838, 598

(1926). Constitutional rights are not for sale whenever

the government pays the right price.“ ‘(Cjonditions

upon public benefits cannot be sustained if they so op-

erate, whatever their purpose, as to inhibit or deter the

exercise of First Amendment freedoms.” Sherbert v.

Verner, 874 U.S. 398, 405 (1963).

Thus, reliance on the Spending Power does not vitiate

the need for proof of a ‘compelling state interest’ to

justify suppression of speech. Jd. at 408, 406; Speiser v.

Randall, 357 U.S. at 529; Community-Service Broadcast-

ing v. FCC, 593 F.2d at 1110 n.17. As the District Court

concluded, “Section 399 can survive scrutiny under the

First Amendment only if it meets the standard generally

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

compelling government interest and is narrowly tailored

to that end.” 547 F. Supp. at 384.% As we next demon-

strate, Section 399 serves no such compelling interest.

#2 Perry v. Sindermann, 408 U.S. 593, 597-98 (1972); Speiser v.

Randall, 357 U.S. 518, 526 (1958); Elrod v. Burns, 427 U.S. 347,

859 (1976) (plurality opinion); Community-Service Broadcasting

v. FCC, 598 F.2d at 1110 n.17.

43 Contrary to the Government’s contention (Brief at 35 n.64, 42

n.73) cases upholding restrictions on the First Amendment rights

of government employees are inapposite. E.g., Oklahoma v. CSC, 330

U.S. 127 (1947); United Public Workers v. Mitchell, 330 U.S. 75

(1947) ; see also Connick v. Myers, 103 S. Ct. 1684 (1983); CSC v.

National Ass'n of Letter Carriers, 413 U.S. 548 (1978). These

cases all involved the unique interest of prevention of corruption of

government service. Certain political activities were found to be

inconsistent with the duties of government service, but the statutes

allowed employees substantial freedom to express their opinions.

108 S. Ct. at 1692-98; 418 U.S. at 561, 579; 330 U.S. at 94-101.

IV. THE GOVERNMENT HAS NOT ADVANCED ANY

COMPELLING INTEREST TO SUPPORT THE SUP-

PRESSION OF EDITORIALIZING BY PUBLIC

STATIONS

A. Suppression of Speech of State and Local Govern-

ments Is Not a Legitimate Government Interest

The Government suggests that Section 399 is justified

as a legitimate control on the speech of state and local

governments. Brief at 6, 21, 36, 42 & n.73. Even if the

interest—advanced for the first time on the appeal to this

Court—were sufficiently compelling, Section 399 is over-

broad.* The premise of this argument is that most non-

commercial broadcasters are state and local governments,

but the Government ultimately is compelled to admit that

many public licensees, including Appellee Pacifica, are

privately owned. Brief at 20-21, 42-43 n.73.

Furthermore, the assumption behind this argument—

that governmental owners will irresponsibly foster un-

seemly governmental propagandizing—is far too specula-

tive a harm to justify suppression of speech.** The Gov-

ernment presents no evidence that public stations owned

by state entities have engaged in editorial] propaganda in

editorials before Section 399 was enacted or that they

have used other programming, either before or after the

ban, for the purpose of disseminating government propa-

ganda. As the Government itself recognizes, many sta-

tions owned by governmental entities, including those run

by universities, are already insulated from state govern-

mental control or protected from political interference.

Brief at 37 n.67.% Therefore, even assuming a compelling

interest, there is “ ‘no substantially relevant correlation

4 See First National Bank v. Bellotti, 435 U.S. at 79?.

* See Consolidated Edison Co., 447 U.S. at 543 (“mere specula-

tion of harm does not constitute a compelling state interest”) ;

Buckley v. Valeo, 424 U.S. at 93 n.126.

# Many of the government-affiliated public broadcasting stations

are university owned. CPB, 1982 CPB Public Broadcasting Direc-

tory

between the governmenta! interest asserted and the State’s

effort’ to prohibit [noncommercial broadcasters] from

speaking.” First National Bank v. Bellotti, 435 U.S. at

795 (quoting Shelton v. Tucker, 364 U.S. 479, 485

(1960) ).

In any event, federal control of the content of speech

of state governmental entities would seriously impinge

on state sovereignty and is not a legitimate interest. A

state’s ability to contro] the content of its own speech to

its citizens ranks high on the list of “indisputabi[e}

‘attributes of state sovereignty.’”’ Hodel v. Virginia Sur-

face Mining & Reclamation Association, 452 U.S. 264, 287-

88 (1981) ‘citation omitted).*’ If the federal government

can interfere with a state’s communications with its citi-

zens, it would “allow ‘the National Government [to] de-

vour the essentials of state sovereignty.’” EEOC v. Wyo-

ming, 103 S. Ct. 1054, 1060 (1983) ‘citations omitted).

Ultimately, the federal government would be able to

suppress any criticism by state governments of the federal

government.

B. Section 399 Cannot Be Justified On the Ground That

It Avoids Taxpayer Subsidization of Unpopular

Speech

The Government suggests that the suppression of edi-

torial speech avoids taxpayer subsidization of “private

political views that may be unwelcome or even repugnant

to many taxpayers.” Brief at 39-40 & n.72.

It is difficult to believe that the Government can seri-

ously advance this argument.** If adopted, it would give

the Government the most extraordinary power to suppress

47 Compare FERC v. Mississippi, 456 U.S. 742, 761 (1982) (au-

thority to make governmental decisions is quintessential attribute

of state sovereignty).

48 At bottom, the Government’s argument amounts to no more

than a reassertion of its unavailing Spending Power argument in

slightly different garb.

unpopular opinion and dissenting views. The First

Amendment will not tolerate such abuse.

Even if the Government could refuse to spend money in

order to protect the freedom of taxpayers not to subsidize

views with which they disagree, the Government cer-

tainly cannot urge this interest to deprive other taxpay-

ers (public broadcasters and their contributors) of the

right to spend their own money on editorial speech.”

The Government relies on Wooley v. Maynard, 430 U.S.

705 (1977), as authority. There a New Hampshire

statute requiring automobile owners to use license plates

bearing the state motto was held invalid because indi-

viduals were forced to be personal instruments for the

state's ideological message. It forced

an individual, as part of his daily life—indeed con-

s‘antly while his automobile is in public view—to

ve an instrument for fostering public adherence to

an ideological point of view he finds unacceptable.

Id. at 715. But government expenditure of taxpayer

money on noncommercial broadcasting does not require

taxpayers to affirm their belief in the views expressed by

public broadcasters as does the personal display of a

message on one’s car; such expenditures hardly implicate

the “individual freedom of mind” at stake in Wooley, id.

at 714.”

*? The Government’s reliance upon the taxpayer subsidization

rationale is also belied by the underinclusiveness of Section 399.

See First National Bank v. Bellotti, 435 U.S. at 793. That the Gov-

ernment was not concerned with taxpayer subsidization of contro-

versial programming on public broadcasting stations undermines any

genuine interest in protecting taxpayers against subsidization of

controversial speech. Many taxpayers arguably are unhappy that

any of their taxes go to support public television programs of which

they disapprove. The Government’s argument here suggests that it

could and perhaps should exercise control over all public broadcast-

ing content to protect the interests of such taxpayers.

“ The Court has made clear that Wooley is inapplicable where

there is no identification of the individual with particular speech.

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the

Likewise the Government cannot properly analogize

this situation to cases involving member subsidization of

political speech by organizations such as labor unions.

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

(1977); cf. First National Bank v. Bellotti (corporate

subsidization by shareholders). Political expenditures by

such organizations involve an element of attribution of

belief (through membership) that is not present in the

case of general taxpayer spending. “Compelled support

of a private association is fundamentally different from

compelled support of government.” <abood, 431 U.S. at

259 n.13 (Powell, J., concurring in the judgment) .”

C. Direct Suppression of Public Broadcaster Speech

Cannot Be Justified As Designed To Prevent In-

direct Efforts To Influence Such Speech

The Government also suggests that Section 399 serves

a compelling interest by protecting public broadcasters

from reductions in funding as punishment for critical edi-

torializing and by protecting them from Congressional

pressure that would jeopardize their objectivity. Brief at

34-35, 38. Congress determined, the Government argues,

that only by banning editorial speech could it ensure that

the Government would not interfere with the objectivity

of noncommercial broadcasting. Brief at 35, 38.

The simplest answer to the Government’s argument is

that, if the Government wants to avoid pressure on non-

Court held that the First Amendment did not prohibit the State

from requiring the owner of a shopping center to allow petitioning

activity on his center because the views expressed by pamphieteers

or petitioners would “not likely be identified with those of the

owner.” Jd. at 87.

In Wooley, the Court indicated that the national motto “In God

We Trust” on United States currency would pose a different case

than New Hampshire's license plate since carrying currency in one’s

pocket would not associate the motto with its carrier. 430 U.S. at

717 n.15.

51 “(E]very appropriation made by Congress uses public money

in a manner to which some taxpayers object.” Buckley v. Valeo, 424

US. at 91-92.

commercial] broadcasters, it has full control over its own

conduct. It need not violate the First Amendment (by

suppressing all editorial speech) in order to keep itself

from attempting to influence the content of editorial

speech. It need only exercise self-restraint. The First

Amendment requires the exercise of such “less drastic

means.” Shelton v. Tucker, 364 U.S. 479, 488 (1960).

Other possible “less drastic means” have already been

adopted. The Government seems to forget that Congress

has already prohibited any attempt at governmental in-

fluence or control of public broadcasters by barring

any department, agency, officer, or employee of the

United States [from exercising] any direction, super-

vision, or contro] over public [broadcasting], or over

the Corporation or any of its grantees or con-

tractors

47 U.S.C. § 398(a). And Congress has already provided

significant insulating protection against attempts at gov-

ernmental pressure on public broadcasters. Jd. § 396.

If these measures were deemed insufficient, additional

insulating measures rather than the outright suppression

of speech could be adopted. A more specific statute mak-

ing it a criminal offense for Congressmen or other gov-

ment officials to attempt to influence the content of public

broadcasting editorials is one alternative. See similar

State statutes cited in Government’s Brief at 37 n.67.

In any event, as the District Court found,™ the fear

of station submission to governmental control or pressure

* To the extent that the Government argues that suppression of

editorial speech is necessary to achieve fair or balanced program-

ming, it is clear that the suppression of speech is not a permissible

remedy for the perceived evil. Brown v. Hartlage, 456 U.S. at 61.

Indeed, even the Fairness Doctrine has been sustained as constitu-

tional only because it “contemplates a wide range of licensee discre-

tion.” FCC v. Mid-West Video Corp., 440 U.S. 689, 705 n.14 (1979);

see Red Lion Broadcasting Co. v. FCC.

5° 547 F. Supp. at 387.

is too speculative to sustain Section 399’s sweeping First

Amendment infringement. Preventing public broadcast-

ing stations from using private funds to editorialize about

potholes in Chicago or the problem of low level radiation

is hardly necessary to protect against efforts to influence

editorials critical of the federal government.” The public

should not be deprived of all editorial speech in order to

avoid speculative licensee temptation to succumb to gov-

ernmental pressure.

The Government’s reliance on the speculative fear of

improper governmental influence over public broadcasters

is quite ironic in view of the fact that Section 399 ap-

pears to embody the very evil (Government interference

with undesired broadcaster speech) the Government seeks

to avoid. There are numerous indications in the legisla-

tive history that Section 399 was designed to suppress

critical speech by public broadcasters.“ Congressmen

supporting passage of the legislation expressed concerns

°4 A review of recent editorials by local CBS stations reveals the

great variety in type and subject matter of broadcast editorials.

Many of these are unlikely to be of any conceivable interest to any

federal official. In a recent two-week period editorials ranged from

localized concerns such as fixing potholes and a proposal for a four-

day school week in the Chicago area (WBBM-TV), and the revitali-

zation of the South Bronx (WCBS-AM) to more national concerns

such as the problem of low level radioactive wastes (WBBM-TV),

this Court’s abortion decisions (KMOX St. Louis), no fault divorce

(WBBM-TV), and the job market for the handicapped (WCAU-AM

Philadelphia).

56 This Court has just recently noted that statutes based on “any

impermissible or censorial motive on the part of the legislature”

cannot withstand First Amendment scrutiny. Minneapolis Star &

Tribune, 103 S. Ct. 1365, 1369 (1983). See also Board of Education

v. Pico, 102 S. Ct. 2799, 2810 (1982) (plurality opinion); id. at

2813, 2814 (Blackmun, J., concurring in part); Metromedia, Inc.

v. San Diego, 453 U.S. at 566 (Burger, C.J., dissenting) (finding

no danger that anti-billboard ordinance was a “mask for promoting

or deterring any viewpoint or issue of public debate’).

that they had “been editorialized against” and fears

that public broadcasting would editorialize on contro-

versial subjects such as home rule for the District of

Columbia, fluoridation, and the President’s Vietnam War

policy.” Given this legislative history, it is all the more

clear that the interest of “assuring objectivity” in the

% See Hearings on H.R. 6736 and S. 1160 Before House Commit-

tee on Interstate and Foreign Commerce, 90th Cong., lst Sess. 641

(remarks of Rep. Springer) (‘‘There are some of us who have very

strong feelings because they have been editorialized against.”’) ; 113

Cong. Rec. 26391 (1967) (remarks of Rep. Keith) (‘It is conceiv-

able that [a certain noncommercial television broadcast} could...

have adversely affected my candidacy for reelection.” ; id. (remarks

of Rep. Joelson) (“Those of us in public office are in a position

where newspapers, radio, or TV stations can say anything they wish

about us.... Therefore, the right of editorializing should be very,

very carefully scrutinized.”); House Hearings on H.R. 6736 and

S. 1160, at 389 (“Yes, I have been subjected to editorializing.”)

(remarks of Rep. Moss) ; see also id. at 415-16. Senator Thurmond

in criticizing the Senate version of the bill without the editorial

ban warned, “Those who vote for this bill are voting for something

that has a vast potential to be used against them.” 113 Cong. Rec.

12,992 (1967).

6' House Hearings on H.R. 6736 and S. 1160, at 307 (remarks of

Rep. McCormack) (fluoridation); id. at 391 (remarks of Rep.

Springer) (home rule); id. at 489 (remarks of Rep. Kuykendall)

(“One man’s idea of a completely unbiased editorial may be com-

pletely biased to another man. This is something that is troubling

some of us.”); id. at 596 (remarks of Rep. Macdonald) (editors

might take “very strong positions about a controversial subject” or

criticize the President’s war policy).

The “legislative history is replete with troubling statements.”

Community-Service Broadcasting, 593 F.2d at 1128 n.25 (Robinson,

J., concurring in the result). See Lindsey, Public Broadcasting:

Editorial Restraints and The First Amendment, 28 Fed. Com. B.J.

63, 81 (1975); Toohey, Section 399: The Constitution Giveth and

Congress Taketh Away, 6 Educ. Broadcasting Rev. 31, 34 (1972)

(“(T ]he purpose of Section 399 was clear: to prevent Congress from

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

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

lated away a significant part of educational broadcasters’ right of

free speech.’’).

face of Congressional pressure wil] not support the

statute.”

CONCLUSION

For the foregoing reasons, the judgment of the District

Court should be affirmed.

Respectfully submitted,

Of Counsel:

ALLEN Y. SHAKLAN J. ROGER WOLLENBERG

HOWARD F. JAECKEL TIMOTHY B. Dyk *

CBS INc. ALAN S. TENENBAUM

51 W. 52 Street WILMER, CUTLER & PICKERING

New York, New York 10019 1666 K Street, N.W.

Washington, D.C. 20006

Counsel for CBS Ine.

ERWIN G. KRASNOW

WILLIAM E. KENNARD

1771 N Street, N.W.

Washington, D.C. 20036

Counsel for National Association

of Broadcasters

J. LAURENT SCHARFF

PIERSON, BALL & DowD

1200 Eighteenth Street, N.W.

Washington, D.C. 20036

Counsel for Radio Television

News Directors Association

* Counsel of Record

September 12, 1983

58 Section 399 also provides that

No noncommercial educational broadcasting station may sup-

port or oppose any candidate for political office.

47 U.S.C. § 399. Although Amici believe that this restrictio:. on

political endorsements is unconstitutional, Appellees have not chal-

lenged this part of Section 399. This Court therefore need not reach

the question of the constitutionality of a ban on public broadcaster

involvement in partisan elections. Cf. First National Bank v. Bel-

lotti, 485 U.S. at 788 n.26 (not reaching question of whether Con-

gress could restrict corporate participation in political campaigns

for election to public office).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.