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

VMhiee ' orrme

FILED

JUN 10 1083

ALEXANDER L, STEVAS,

No. 82-912 CLERK

——————LLLL—LLL

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

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 OF AMICUS CURIAE

MOBIL CORPORATION

IN SUPPORT OF APPELLANT,

FEDERAL COMMUNICATIONS COMMISSION

Of Counsel: LARRY S. SCLOMON

F. W. DiETMAR SCHAEFER KELLER & HECKMAN

MOBIL CORPORATION 1150 - 17th Street, N.W.

150 East 42nd Street Suite 1000 3

New York, New York 10017 Washington, D.C. 20036 eg

(202) 457-1134 ee

Attorney for Amicus Curiae,

Mobil Corporation.

——

Weshington.0.C. © THIEL PRESS © (202) 638-4621

(1)

Page

TABLE OF CONTENTS

TP PASEEPOMEED cc ccc ccc osc cccvecsscccce iii

DURE cece ccesceecercecccececcesecesoe 1

I, Interest of Mobil. ..cccccccscsccscvecccsceces 2

Summary of Argument.....00e es eeeeevns cooee 9

Me PEE ccc ces ececvces pe ereeccoeseeoes 7

A. THE COURT BELOW ERRED IN FIND

ING SECJION 399 UNCONSTITUTIONAL

BECAUSE IT DID NOT APPLY THE PROPER

STANDARD OF REVIEW ....cccccrccvcves 7

1. Misinterpretation of Precedent.......+60006. 7

2. The Broadcast Medium Has Been

Treated Uniquely Because Of Its Nature

And There Is No Reason To Abandon

Prior “Balancing”’ Considerations.......... 10

B. A REGULATION WHICH ONLY INCI-

DENTALLY RESTRAINS FIRST AMEND-

MENT EXPRESSION IN FURTHERANCE

OF SUBSTANTIAL GOVERNMENTAL

INTERESTS SHOULD BE ANALYZED

UNDER A TEST LIKE THAT ESTABLISHED

IN UNITED STATES v. O'BRIEN ....06.2000:. 13

1. The O’Brien Type Test Is Proper

Because Section 399 Only Inciden-

tally Restrains Speech .......... occecceld

2. An Application Of The Four-Part

O'Brien-Type Test Demonstrates That

The Section 399 Prohibition Against

Public Stations’ Endorsement Of

Editorial Viewpoints Does Not Vio-

late The First Amendment ........+.6260.6 15

a. The Governmental Interest In

Enacting The Section 399 Prohibi-

tion Of “Editorializing” Was Un-

related To The Suppression Of

BPOO GROCGR c ccc ccccccscscevoccces

15

(st)

b. The Section $99 Prohibition Of

“Editorializing” Serves A Substan-

tial, If Not Compelling, Government

CONE s.c 0:46. 0.0.5 600 88 048k 0 °

c. The Incidental Restriction On First

Amendment Freedoms Created By

The Section 399 Prohibition Of

“Editorializing” Is No Greater Than

DEMME, cc cect eves vrs

d. The Section 399 Prohibition Of

“Editorializing”’ Is Within The Con-

stitutional Power Of The Govern-

¢. Section 399's Prohibition Against

Public Stations Adopting An Edi-

torial Viewpoint As Their Own Is

Constitutional. .. cccccssce rere

C. BECAUSE EDITORIALS MAY BE CON-

STRUED AS SUPPORT FOR OR OPPOSI-

TION TO CANDIDATES FOR POLITICAL

OF FICE, A NUMBER OF CONSTITU-

TIONAL AND PRACTICAL DIFFICULTIES

WILL ARISE IF PUBLIC BROADCASTING

STATIONS ARE ALLOWED TO “EDI-

pt A es aS *nenreve *onenree

1. It Is Impossible To Draw A Distinction

Between The Endorsement Of Editorial

Views And Support For, Or Opposition

Page

To, A Political Candidate ..cccccccccseceaa

2. The Fairness Doctrine Is Not Sufficient

To Assure The First Amendment Rights

Of The Public To Balanced Programming

As the Lower Court Believed Nor Will

It Prevent Undue Influence on and by

The Public Broadcaster.......+6.+.6+ Hon

(111)

Hl. CONCLUSION .cccccscvvvcecs oe eevecs covoe 29

TABLE OF AUTHORITIES

Cases :

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

Cir. 1975), cert. denied, 425 U.S. 934 (1976). ...0.500. 28

American Security Council Education Foun-

dation v, FCC, 607 F.2d 438 (D.C. Cir. 1979),

cert. denied, 444 U.S. 1018 (1980). ......0..000. oon Be

Carey v. Brown, 447 U.S. 455 (1980)... ce ccce vcccccee 8

CBS, Inc. v. FCC, 629 F.2d (D.C. Cir. 1980);

SUF Ee Ni BOW (OO E)s cc hc occcc ccc cvceesscnce 23

Columbia Broadcasting System, Inc. v.

Democratic National Committee,

SES Ue OE CITE) os cvccuseees ccccocce 10, 11, 12,27

Community-Service Broadcasting uf Mid-

Amenica, Inc, v. FCC, 593 F.2d 1102

Senta Ms MPO. ud bee vc bb eaae “ee eeewee 18, 15, 17

Consolidated Edison Co. v. Public Service Com-

mission of New York 447 U.S, 530 (1980). ....... 9,10, 14

FCC v, Nat'l Citizens Committee for Broad-

casting, 436 U.S. 775 (1978). > 0.8.80 6 6.9.20 o,.8.¢ 0.38 6.02.66 ee 10

FCC Pacifica Foundation, 438 U.S. 726 (1978). .........12

First National Bank of Boston v, Bellotti,

435 U.S. 765 (1978) .. . ccc eees soeceeees 68,9, 10,14

Heffron v. International Society for Krishna

Consciousness, Inc., 452 U.S. 640 (1981)......... rrr nr ,

International Longshoremen's Association v,

Allied International, Inc., 456 U.S. 212... 0.0 eee ees 14

Kennedy for President Committee v. FCC,

ko | a,

Konigsberg v. State Bar of California,

PRs CUED ob bo dao 86 'b Ow wo eke wd ce oer eoevee 8

(tv)

Cases, continued: Page

League of Women Voters of California v. FCC,

547 F.Supp. 379 (C.D. Cal. 1982) 2... seen renee 7,10, 25

Miami Herald Publishing Company v. Tornillo,

418 U.S. 241 (1974) SE CRASSA SADE COA COO. OC Oe. 6:6 @ 12, 24

Muir v, Alabama Educational Television Commission,

656 F.2d 1012 (5th Cir. 1981), aff'd on rehearing,

688 F.2d 1033 pi Cir. catia cert, denied, 103

S.Ct. 1274 (1983). —TUTECTUPLIL EEE tf

NAACP v, Claiborie Hardware Co., 102 S.Ct,

9409 (1982). wc cccccces coer ecsoeeeceee 0000 9,54

National Broadcasting Co, v, United States,

S19 U.S. 190 (1948) .. cccccccvesscccevsescesceee 21

NLRB v. Retail Store Employees Union,

447 U.S. 607 (1980) . ccc cccvcsccsvene coccccccet

Police Dept. of City of Chicago v. Mosley,

408 U.S. 92 (1972)... ce cccees Ceccsscesece saee cee

Red Lion Broadcasting Co.v. FCC,

$95 U.S. 367 (1969) . .ccccces cocccoes 9 Li, 12,21, 26

Regents of University System of Georgia v,

Carroll, 78 Ga. App. 292, aff'd 338 U.S.

586 (1950). 6.66 6.0 6 6.9 6.20 6 626-60 @€@ CeO @ 8 € oe 6.60 28:0 6 21

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

(1981). oe @ 6.6 0 6 Ce 2 © OC @ Ce 6 6. 6.6.6.64:6 66 CC 62688 802862 6.6 14

United States V. O’Brien, 391 U.S, 367 (1968)......... passim

U.S. Postal Service v. Council of Greenburgh

Civic Associations, 453 U.S, 114 (1981) ..... re ae

Widmar v, Vincent, 454 U.S. 263 (1981). 0... 0.000 ce eee ee 8

Administrative Decisions:

In re Complaint of Accuracy in Media, Inc.,

45 P.O, 24 297 (1978). ccccccccccccccccede 8,19, 20

Applicability of Fairness Doctrine in the Handling

of Controversial Issues of Public Importance,

29 Federal Register 10415 (1964) ....-..eeeeeveees 24

(v)

Administrative Decisions, continued: Page

In the Matter of Editorializing By Broadcast

Licensees, 13 F.C.C. 2d 1246 (1949).......... Terres

Notice of Inquiry: The Handling of Public Interest

Under The Fairness Doctrine and the Public

Interest Standards of the Communications Act,

30 F.C.C. 2d 26 (1974) ...... eC ee be ccccecone oceend

In the Matter of Mobil Oil Corporation,

MUR 3819 (76) . ec cccccccccsccseccesocs cocccee QS

Notice of Proposed Rule Making: In the Matter

of Repeal or Modification of Personal Attack

and Political Editorial Rules, FCC Gen. Docket

No, 83-484, adopted june 2, 1983 ........... coccee 2B

United States Constitution:

oe he AT Pree eee T Teer oeenseeees cesses 21

RENEE ccc sc besececccvcccceseeceees passim

Statutes and Regulations:

Federal Election Campaign Act

Dh ES. +5 ais witb 06.0 606 be eens se 6s 606s 068 23

Communications Act of 1934

47 U.S.C. §309(a)..... swe bbe ne 6040beeeenee oocel?

Oy Un OE ows ones cevcnese eseveces coccecehls

Dy SA REND Dc ccc ce esccceene secese Trrrriy

47 U.S.C. §315(a)..... ecececceccceses eoccccvcen”

Public Broadcasting Act of 1967

47 U.S.C. §890....... eeeveees's aesees eacccceccel

IO a rae

Code of Federal Regulations

Sr Gates TOOL cccumsasccceeccevees occcce 12, 26

Legislative Documents:

First Amendment Clarification Act of 1977: Hear-

ings on S.22, Before the Subcommittee on Com-

munications of the Senate Comm. on Commerce,

Science and Haesepseaai 95th se 2d Sess.

(1978). . Péwssteesapedecccveterecssoe.ecos

(vt)

Legislative Documents, continued: Page

Public Broadcasting Act of 1967: Hearings Before the

House Committee on Interstate and Foreign

Commerce, 90th Cong., Ist Sess. (1967) ..... coccccee 1G

HLR. No. 4780, 97th Cong, Ist Sess. (1981) ...... seoonecm?

HLR. No. 4781, 97th Cong. Ist Sess. (1981) ..... PIA

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

in 1967 U.S. Code Cong. & Ad. News 1799 ......6.266+.16

Conf, R. No. 7904, 90th Cong., Ist Sess.,

reprinted in 1967 U.S. Cong. & Ad. News 1934.........+16

118 Cong. Rec. 26894 (1967)... .ccccccccce peenes «+ 19

SED CG. GR, BEOG CAO) vc ec sew cedecsceesees 020 08

113 Cong. Rec. 12990 (1967) ........... cocccccccce 18

Miscellaneous:

Letter from Mark Fowler, Chairman, Federal

Communications Commission to the Vice

President, United States Senate (Oct. 2,1981)......++- 27

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

FEDERAL COMMUNICATIONS COMMISSION,

Appellant,

LEASUE OF WOMEN VOTERS OF CALIFORNIA, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF OF AMICUS CURIAE

MOBIL CORPORATION

IN SUPPORT OF APPELLANT,

FEDERAL COMMUNICATIONS COMMISSION

INTRODUCTION

This case is a review of a decision by the United States

District Court for the Central District of California wh'ch

held unconstitutional that portion of 47 U.S.C. §399

(West Supp. 1982) (hereinafter “Section 399”) which

prohibits noncommercial educational broadcasting sta-

tions which receive funding from the Corporation for

]

2

Public Broadcasting from “editorializing.”! Section 399

provides; “No noncommercial educational broadcasting

station which receives a grant from the Corporation

under subpart C of this part may engage in editorializing.

No noncommercial educational broadcasting station may

support or oppose any candidate for political office.”

The opinion of the District Court is reported at 547 F.

Supp. 379.

The question presented in this case is whether Section

399, which prohibits “editorializing” by noncommercial

educational broadcasting stations that receive grants from

the Corporation for Public Broadcasting, violates the

First Amendment. The jurisdiction of this Court is in-

voked under 28 US.C, §125:..

Mobil Corporation is filing this brief amicus curiae in

support of appellant, Federal Communications Commis-

sion, with the consent of the parties, as provided for in

the Rules of this Court.

I, INTEREST OF AMICUS CURIAE

MOBIL CORPORATION

Mobil Corporation (herein referred to as Mobil”) is a

corporation organized and existing under the laws of the

State of Delaware, Its wholly-owned, principal operating

subsidiary is Mobil Oil Corporation, a New York corpora-

tion. In addition, Mobil owns Container Corporation of

America and Montgomery Ward and Company, Inc. and

its subsidiaries.

Mobil has a continuing interest in preserving the integ-

rity of noncommercial educational broadcasting or, as it

l Section 399's prohibition of editorializing means only that pub-

lic stations may not broadcast editorials “representing the opinion

of the management of such station.” Public stations are otherwise

[footnote continued]

3

is more commonly called, “Public Broadcasting,” For

over a decade, Mobil has been a grantor or underwriter of

substantial funds directly or indirectly made available to

individual public television broadcast stations. These

grants have made, and continue to make possible such

well known and well accepted programs as the “Master-

piece Theatre” and “Mystery” series, among others,

which are aired over tne Public Broadcasting System

(hereinafter referred to as “pBs”).?

Mobil has reason to believe that its grants have made a

unique cultural contribution to American viewing audi-

ences by making available quality educational program-

ming that would not otherwise have been produced or

shown in the United States. This genre of programming

has become an important educational, cultural and enter-

tainment facet of American life, as envisioned by the

framers of the Public Broadcasting Act, and Mobil is

therefore committed to this undertaking.

Mobil’s interest in this case rests on two main premises:

(1) that Section 399’s prohibition against public stations

endorsing any editorial view aired by such a station as its

own viewpoint prevents public broadcasters from becom-

ing or being perceived as a propaganda organ for the gov-

free to editorialize and broadcast a ‘‘balanced, fair and objective

presentation of controversial issues.” See infra notes 37-42 and

accompanying text.

2The terms “noncommercial educational broadcasting” and

public broadcasting” will be used interchangeably throughout this

brief. Public broadcasting was established by the enactment of the

Public Broadcasting Act of 1967 (codified at 47 U.S.C. § §390 et

seq.), an act which created the Corporation for Public Broadcasting

(CPB) and authorized it to fund various programming activities of

local public broadcast stations licensed by the Federal Communica-

tions Commission through allocations from Congress.

SPBS is a nonprofit membership corporation which distributes

public, noncommercial television programs to its members.

4

ernment or tor any other special interest; and, (2) that

Section 399’s prohibition of public stations’ endorsement

of any editorial as their own viewpoint reduces the pos-

sibility that a government-supported position will unduly

influence and chill the free exchange of ideas intended to

be fostered by the First Amendment.

The phenomenal impact of television on the American

viewing public cannot be denied, Therefore, Mobil sub-

mits that there is a danger that the editorial viewpoints

endorsed by public stations which are dependent upon

the federal government for a significant portion of their

revenues will be perceived by the public as at least ap-

proved by the federal government if not a statement of

the government’s position on the issue in question, Fur-

thermore, Mobil is of the view that public broadcasters

receiving significant funding from tax dollars should not

have the right, on the one hand, to use the public air-

waves pursuant to a license issued by the Federal Com-

munications Commission, and, on the other hanc, to

couple this privilege with the right to endorse specific

political or social views. Mobil believes that public broad-

casting stations are likely to lose private financial support

from both corporate contributors and the public if they

become involved in the business of endorsing editorial

views.

Contrary to the lower court’s holding, experience dem-

onstrates that reliance on the Fairness Doctrine is of little

or no assistance in efforts to invoke First Amendment

rights of free expression. In addition, with the persistent

and many-faceted attacks on the Fairness Doctrine and

Equal Time provisions, and the broadcasters’ demand for

absolute First Amendment freedoms for themselves to

the exclusion of all others, this Court should not lose

sight of the First Amendment rights of persons other

than broadcasters. The lower court would have this Court

believe that Section 399 presents only a simple question

5

of violation of broadcasters’ First Amendment rights.

This is not the case. There are other significant First

Amendment rights at stake.

For the reasons hereinafter set forth, Mobil respectfully

submits that the United States District Court for the Cen-

tral District of California erred on legal, technical, and

policy grounds in finding the editorializing prohibition

of Section 399 to be unconstitutional.

SUMMARY OF ARGUMENT

The court below erred in finding the Section 399 pro-

hibition of “editorializing” unconstitutional because it

did not apply the proper standard of review. The lower

court misinterpreted precedent concerning application of

the compelling interest test because it improperly believed

that there is only one standard of review appropriate for

analysis of challenges brought under the First Amend-

ment. The lower court also erred by refusing to recog-

nize that the broadcast medium has always been treated

uniquely: the Supreme Court has held that broadcasters

have limited First Amendment rights which must be bal-

anced against the public’s First Amendment rights.

The Supreme Court has determined that regulations,

such as the one currently under review, which only inci-

dentally restrict First Amendment expression in further-

ance of a governmental purpose unrelated to speech, are

constitutional if they satisfy the criteria enumerated in

United States v. O’Brien and its progeny. An application

of this test to the facts and circumstances surrounding

the prohibition of “editorializing” establishes that the

prohibition is constitutional, The governmental interest

in enacting the prohibition of “editorializing’” was in-

tended to preserve the integrity of public broadcasting

and was unrelated to the suppression of free speech. The

prohibition serves a substantial, if not compelling gov-

ernment interest by preventing public broadcasting sta-

tions from becoming government propaganda tools. The

6

incidental restriction on alleged First Amendment free-

doms created by the prohibition of “‘editorializing” is

no greater than is essential, and it was within the consti-

tutional power of the government to create the prohibi-

tion.

If the Supreme Court does not reverse the lower court’s

decision invalidating the first provision of Section 399

which prohibits “editorials”, enforcement of the second

provision of Section 399 will be constitutionally impos-

sible. The second provision of Section 399 prohibits

public broadcasting stations from supporting or opposing

candidates for political office. Because editorial endorse-

ments may be construed as support for or opposition to

candidates, enforcement of the prohibition against en-

dorsement of candidates will necessitate unconstitutional

content control. Administrative agencies and courts will

be forced to distinguish between permissible editorials

and editorials which support or oppose candidates.

If the Supreme Court does not reverse the lower court’s

decision, a number of practical difficulties will arise.

Public broadcasting stations will have to spend significant

amounts of their limited resources defending themselves

in administrative proceedings and lawsuits initiated by

candidates seeking to prevent the airing of editorials

which can be construed as support for opposing candi-

dates. Additionally, public stations may be compelled

under the Equal Time provisions to provide an oppor-

tunity for candidates or their spokesmen to appear on the

air. Such presentation of rebuttals could only occur at

expense to and in frustration of public stations’ primary

purposes, the production and broadcasting of cultural

and educational programming.

Finally, unless the lower couct’s decision invalidating

the prohibition of editorial endorsements by public sta-

tions is reversed, there is a danger that their positions will

be perceived by the public as either approved by the gov-

-

/

ernment, or as a statement of the government’s position.

The Fairness Doctrine will provide no remedy for this

situation. The Fairness Doctrine will not assure any bal-

ance in the presentation of viewpoints, contrary to the

lower court’s belief, because the public broadcasters will

retain almost exclusive control over the selection of issues

agd viewpoints to be presented. Because of the perceived

government endorsement of viewpoints presented over

public broadcasting stations, and because the public

broadcaster has almost exclusive control over what is

aired, there will not be the kind of uninhibited, robust

and wide open exchange of views to which the public is

constitutionally entitled.

Il. ARGUMENT

A. THE COURT BELOW ERRED IN FINDING SECTION

399 UNCONSTITUTIONAL BECAUSE IT DID NOT

APPLY THE PROPER STANDARD OF REVIEW

1. Misinterpretation of Precedent

The lower court’s reasoning, if carried to its logical

conclusion, would admit of only a single analysis of the

constitutionality of regulations restraining First Amend-

ment expression. While the court admitted that Section

399 is merely a restriction on the means by which issues

of public importance are debated,* it analyzed the Sec-

* League of Women Voters of California v. FCC, 547 F. Supp.

379 (C.D. Cal. 1982). The court stated that: “‘Despite this narrow

construction of §399, it cannot be denied that the ban on edito-

rializing limits the means by which certain noncommercial licensees

may participate in the debate of issues of public interest and im-

portance ....” Jd, at 383. Consequently, Section 399 does not pro-

hibit the expression of views on controversial issues of public im-

portance, provided the surrounding facts and circumstances do not

indicate that such views are intended as the official opinion of the

public broadcast station. This is the only logical interpretation of

Section 39% in light of the expressed congressional policy of foster-

ing “‘a vital public affairs medium”’ in public broadcasting and the

[footnote continued]

8

tion as if its purpose is to prevent the discussion of public

issues altogether.” To the contrary, this Court has always

distinguished between direct limitations on the content

of speech® and limitations which are only incidentally

directed at speech (te. limitations which further a gov-

ernmental purpose unrelated to speech). The lower court

completely ignored this established distinction and incor-

rectly applied the compelling interest standard.

Rather than limiting its analysis to the compelling inter-

est test, the lower court should have considered other

judicial standards of review and applied the one appro-

priate to the type of incidental restriction involved here.

Instead of trivializing the First Amendment by adopting

an absolutist interpretation of the restrictions it places on

government regulation of free expression, this Court has

developed a multi-tiered analysis of the constitutionality

of such statutes. A law which is “directed at speech it-

self’ must be narrowly drawn and serve a compelling

specific prohibition against FCC censorship in Section 326 of the

Communications Act (47 U.S.C. §326), Compiaint of Accuracy in

the Media, 45 F.C.C, 2d 297, 302 (1973).

5 This Couftiftas held that “general regulatory statutes, not in-

tended to control the content of speech but incidentally limiting

its unfettered exercise, have not »czen regarded as the type of law

the First or Fourteenth Amendment forbade Congress or the

States to pass, when they have been found justified by subordi-

nating valid governmental interests, a prerequisite to constitution-

ality which has necessarily involved a weighing of the governmental

interest involved.” Konigsberg v. State Bar of California, 366 U.S.

36, 50-51 (1961).

®In First National Bank of Boston v. Bellotti, 435 U.S. 765, 786

(1978), this Court held that where ‘“‘a prohibition is directed at

speech itself” a compelling governmental interest must be shown.

This Court has also held that a compelling governmental interest

must be shown where speech is regulated on the basis of its con-

tent. See, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 277

(1981); Carey v. Brown, 447 U.S. 455, 461 (1980); Police Dept. of

City of Chicago v. Mosley, 408 U.S. 92,96 (1972). For a discussion

of this Court’s opinions concerning incidental restrictions on speech

which must be supported by a substantial governmental interest,

see infra notes 17-23 and accompanying text.

9

state interest.’ A law which incidentally limits First

Amendment freedoms must be within the constitutional

power of the government, further an important or sub-

stantial governmental interest which is unrelated to the

suppression of free speech, and restrict alleged First

Amendment freedoms no more than is essential to the

furtherance of such interest.* A restriction that regulates

only the time, place or manner of speech may be imposed

so long as it is reasonable.” Finally, this Court has recog-

nized the unique characteristics of the broadcast medium

and developed a balancing test applicable to First Amend-

ment rights of broadcasters and the public.'° Because

the prohibition against public stations adopting an edito-

rial view as their own only incidentally restrains broad-

casters’ speech, and because broadcasting has never been

protected by the full panoply of First Amendment pro-

tections, the lower court should have demanded only that

a substantial government interest be demonstrated.

The lower court relied on Consolidated Edison Co. v.

Public Service Comm. of New York, 447 U.S. 530 (1980)

and First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765

Bellotti, supra note 6 at 786.

8 united States v. O’Brien, 391 U.S. 367, 377 (1968), cited in

NAACP vy, Claiborne Hardware Co., 452 U.S. 61, 101 S.Ct. 2176,

2183 n.7 (1981). In O’Brien the court stated that: ‘‘We think it

clear that a government regulation is sufficiently justified if it is

within the constitutional power of the government; if it furthers

an important or substantial governmental interest; if the govern-

mental interest is unrelated to the suppression of free expression;

and if the incidental restriction on alleged First Amendment free-

doms is no greater than is essential to the furtherance of that in-

terest.” 391 U.S, at 377.

° Consolidated Edison Co. v. Public Service Commission of New

York, 477 U.S. 530 (1980), cited in U.S, Postal Service v. Council

of Greenburgh, 453 U.S. 114, 101 S.Ct. 2676, 2686 (1981); Heff-

ron v. International Society for Krishna Consciousness, Inc., 452

U.S. 640, 101 S.Ct. 2559, 2564 (1981),

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

1969).

10

(1978) in finding Section 399 unconstitutional. Granted,

if Section 399 actually involved a direct restriction on the

discussion of public issues, the holdings in these two cases

would be appropriate. However, because the instant case

involves only a restriction on the endorsement of a view

by a public broadcaster and not a prohibition on the dis-

cussion of public issues, the lower court’s reliance on

these holdings is misplaced. In both Consolidated Edison

and Bellotti, the Supreme Court said in dictum that only

a substantial government interest would have to be dem-

onstrated to establish the constitutionality of incidental

restrictions on free speech, although the statutes under

analysis in both cases directly restricted free speech and

were not justified by a compelling interest. The lower

court failed to take note of this distinction and misap-

plied the holdings of the two cases.

2. The Broadcast Medium Has Been Treated

Uniquely Because Of Its Nature And There Is

No Reason To Abandon Prior “Balancing”

Considerations

Completely dismissing Supreme Court precedent which

establishes the unique treatment of broadcasters’ free

speech rights, the lower court incorrectly held that Sec-

tion 399 can survive scrutiny under the First Amendment

only if it meets the stringent compelling interest stan-

dard."!

This Court has recognized that “because the broadcast

media utilize a valuable and limited public resource” they

“pose unique and special problems not present in the

traditional free speech case.” Columbia Broadcasting

System, Inc. v. Democratic National Committee, 412

U.S. 94, 101 (1473), Justice Marshall, writing for the

majority in FCC v. Nat'l Citizens Committee for Broad-

casting, stated that it is a ‘fundamental proposition that

i League of Women Voters, 547 F.Supp. at 384.

1]

there is no ‘unabridgeable First Amendment right to

broadcast comparable to the right of every individual to

speak, write or publish.’ ” 436 U.S. 775, 799 (1978).

This Court has observed that First Amendment issues

regarding broadcast licensees should be analyzed in light

of the congressionally established statutory and regula-

tory scheme:

Balancing the various First Amendment interests

involved in the broadcast media and determining

what best serves the public’s right to be informed

is a task of great delicacy and difficulty. The pro-

cess must necessarily be undertaken within the

framework of the regulatory scheme that has evolved

over the course of the past half century. For, during

that time Congress and its chosen regulatory agency

have established a delicately balanced system of

regulation intended to serve the interests of all con-

cerned. Columbia Broadcasting System, 412 U.S. at

102. (emphasis added),

Such an analysis demonstrates that Congress created a

regulatory system which accommodates the First Amend-

ment interests of the public and of the private broadcast

licensees. In establishing its legislative scheme for the

regulation of the broadcast medium, Congress was cogni-

zant of the fact that the nation’s airwaves are a limited

public resource not subject to private ownership. Thus,

in enacting a regulatory scheme for the broadcast medi-

um, Congress was sensitive to the need to protect the

rights of the public.!* The purpose of the First Amend-

ment in the context of broadcasting is “to preserve an

uninhibited marketplace of ideas in which truth will ulti-

mately prevail, rather than to countenance monopoliza-

tion of that market, whether it be by the Government

itself or a private licensee.” Red Lion Broadcasting Co.

v. FCC, 395 U.S. 367, 390 (1969),

12 Columbia Broadcasting System, Inc. v. Democratic National

Committee, 412 U.S. 94 (1973).

12

Although a broadcast licensee does possess a large

measure of journalistic freedom, that freedom is not

coterminous, for example, with that exercised by a news-

paper. ‘‘A licensee must balance what it might prefer to

do as a private entrepreneur with what it is required to do

as a ‘public trustee.’ " Columbia Broadcasting System,

412 U.S. at 118.)% Broadcasters consistently have not

been accorded the same First Amendment rights as news-

paper publishers for that very reason.'* Thus, although

the First Amendment has been held to protect newspaper

publishers from being required, for instance, to print the

replies of those whom they criticize,!° it does not afford

any such protection to broadcasters. FCC v. Pactfica

Foundation, 438 U.S. 726 (1978). In fact, pursuant to

Red Lion, supra, in matters involving personal attacks the

broadcasters must give reasonable reply time to the vic-

tims.!®

Because of the unique nature of the broadcast medium,

and based on the fact that there are several established

standards for reviewing legislation concerning First

5 4 demonstrably assured historical meaning of the First

Amendment is that government may not generally treat publica-

tion as a privilege to be indulged only on condition of a prior li-

cense. A prior license, however, is the foundation of the 1934

Communications Act as no one can broadcast without a license,

and licenses are issued by the Government to relatively few appli-

cants who, the FCC finds, will serve the public interest. Further-

more, licensees must continue to serve the public interest or their

licenses may be revoked. See, ¢.g., 47 U.S.C. § $309(a) and 312.

Any applicant for a broadcast facility is completely aware of this

proposition, and accepts a license conditioned upon it, The politi-

cal editorializing and personal attack access obligations were up-

held in Red Lion Broadcasting Co. v. FCC, °95 U.S. 367 (1969),

because such regulations promoted, in the Court's opinion, First

Amendment rights of the greatest importance, i¢., that of the gen-

eral public ‘‘to receive suitable access to social, political, esthetic,

moral and other ideas and experience.” /d. at 389-390.

4 FCC v. Pacifica Foundation, 438 U.S. 726, 748.

15 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

16 See also, 47 CFR §73.121.

13

Amendment rights, the lower court erred by holding that

the only standard of review available to the court was the

compelling interest standard.

B. A REGULATION WHICH ONLY INCIDENTALLY RE-

STRAINS FIRST AMENDMENT EXPRESSION IN

FURTHERANCE OF SUBSTANTIAL GOVERNMEN.-

TAL INTERESTS SHOULD BE ANALYZED UNDER A

TEST LIKE THAT ESTABLISHED IN UNITED STATES

V. O'BRIEN

1. The O’Brien-Type Test Is Proper Because Sec-

tion 399 Only Incidentally Restrains Speech

The United States Court of Appeals for the District of

Columbia Circuit recently used the test announced by

this Court in United States v. O’Brien, 391 U.S. 367

(1968), to analyze the constitutionality of a former pro-

vision of Section 399.'’ The court stated that the thresh-

old for applying the O’Brien test is that a statute imposes

at least incidental restraints on First Amendment free-

doms.!8

A number of this Court’s most recent opinions also

indicate that the O’Brien test is appropriate for analysis

of sections of regulatory statutes which incidentally re-

17 Community-Service Broadcasting v. FCC, 593 F.2d 1102

(D.C. Cir. 1978). The Court of Appeals for the District of Colum-

bia used both the four-part O’Brien test and a compelling interest

test to evaluate a provision in Section 399 which required public

stations to keep a recording of all broadcasts “in which any issue

of public importance is discussed.” 593 F.2d 1102, 1114 (D.C.

Cir. 1978). The compelling interest test applied to this provision

because it was “directed at speech itself” in the sense that it regu-

lated the content of only those broadcasts which had to do with

“issues of public importance.” The Circuit Court indicated, how-

ever, that, but for the fact that this provision regulated the con-

tent of broadcasts, the four-part O’Brien test is the appropriate

analysis to use in determining the constitutionality of provisions

in Section 399, The O’Brien test is the correct one to use because

Section 399 imposes only “incidental restraints on First Amend-

ment Freedoms.” /d, at 1114.

1874. at 1114,

14

strict First Amendment expression in furtherance of

important and substantial governmental objectives. For

example, in NAACP v. Claiborne Hardware Co., this

Court stated that “[g]overnmental regulation that has

an incidental effect on First Amendment freedoms may

be justified in certain narrowly defined instances.”!9 In

Schad v. Borough of Mt. Ephraim, this Court observed

that regulations which are “narrowly drawn to avoid un-

necessary intrusion on freedom of expression” should be

analyzed under the O’Brien test.*° In Consolidated

Edison Co. v. Public Service Commission, this Court

stated that “(t]he O’Brien test applies to regulations that

incidentally limit speech where the ‘governmental interest

is unrelated to the suppression of free expression...’ ”’*!

In First National Bank of Boston v. Bellotti, this Court

indicated that the O’Brien test is appropriate where a

governmental regulation protects “from an evil shown to

be grave, some interest clearly within the sphere of gov-

ernment concern.”** In light of these indications by the

Supreme Court of the sort of regulation which should be

analyzed under the O’Brien test,?*> this Court should

19 _ U.S. __,, 102 S.Ct. 3409, 2425 (1982).

% 452 U.S. 61, 101 S.Ct. 2176, 2183 n.7 (1981).

21 447 U.S. 530, 541 n.9 (1980).

2 435 U.S. 765, 786 n.23 (1978).

3 tn addition to these explicit applications of the O’Brien test,

the Supreme Court has applied the Konigsberg rule that sections of

general regulatory statutes which only incidentally restrict free

speech may be found constitutional. See supra note 5. For exam-

ple, the Supreme Court has twice held that sections of the National

Labor Relations Act making it an unfair labor practice to boycott

a secondary business impose “no unconstitutional restrictions upon

speech protected by the First Amendment.” NLRB v, Retail Store

Employees Union, 447 U.S. 607, 609 (1980). In International

Longshoremen’s v. Allied International, 456 U.S. 212, 102 S.Ct.

1656, 1665 (1982), the Supreme Court held that since “|t| he labor

laws reflect a careful balancing of interests... [and] there are many

ways in which a union and its individual members may express

[footnote continued]

15

apply an O’Brien-type test in this case and require that

the government demonstrate a substantial interest in

maintaining the prohibition of endorsement by public

stations of an editorial viewpoint.

2. An Application Of The Four-Part O'Brien-Type

Test Demonstrates That the Section 399 Prohi-

bition Against Public Stations’ Endorsement Of

Editorial Viewpoints Does Not Violate The

First Amendment

a. The Governmental Interest In Enacting The

Section 399 Prohibition Of ‘Editorializing”’

Was Unrelated To The Suppression Of Free

Speech

An analysis of the legislative history discussing Section

399** reveals that Congress intended to further two objec-

tives by prohibiting public stations from adopting an edi-

torial viewpoint as their own. Congress intended to

prevent public stations from becoming propaganda tools

for the federal government or for any other donor of sig-

their opposition to Russian foreign policy without infringing upon

the rights of others” by violating the section of the Act barring

secondary boycotts, the prohibition of secondary boycotts was

not violative of the First Amendment. Likewise, since the Public

Broadcasting Act reflects a careful balancing of interests, Section

399 should be evaluated under the four-part O’Brien test rather

than a compelling interest test. Section 399 is not “‘directed at”

public broadcasters’ speech, but, instead, only incidentally restricts

such speech as part of a larger regulatory scheme designed to ensure

that public broadcasting stations are protected from pressure to

adopt the editorial viewpoints of those sources of financial support

upon which they are dependent,

24 4 determination of what the government interest is in connec-

tion with any statute requires a review of the legislative history

created at the time of the law’s enactment. The Circuit Court of

Appeals for the District of Columbia recognized this principle in

Community-Service Broadcasting v. FCC when it applied the

“governmental interest in its enactment” was unrelated to suppres-

sion of free speech. 593 F.2d 1102, 1114 (D.C. Cir. 1978) (empha-

sis added).

16

nificant funding. Additionally, Congress intended to

promote the effective use by public stations of their lim-

ited resources for the production of high quality educa-

tional and cultural programming.

The House Report on the Public Broadcasting Act of

1967 established the Congressional policy that “. . . edu-

cational stations must not be permitted to become vehi-

cles for the promotion of one or another political cause,

party or candidate.”** The Senate adopted this policy

and stressed that the probhition in Section 399 of “edi-

torializing” is narrowly drawn and “limited to providing

that no noncommercial educational broadcast station

may broadcast editorials representing the opinion of the

management of such station.”””°

The prohibition against public stations endorsing a

viewpoint as their own was also intended to further the

fundamental purposes behind the creation of the Corpo-

ration for Public Broadcasting and the Public Broadcast-

ing System. In its statement of the purpose of the Public

Broadcasting Act of 1967, the House Committee charged

with analyzing the legislation identified three purposes;

to provide funding for broadcast facilities, to provide

funds “for cultural and educational programs of the high-

est quality so that the facilities provided under the bill

can be productively utilized” and to provide for a study

of instructional television.””

Notably, it was not a purpose of the Public Broadcast-

ing Act of 1967 or of Section 399 of the Act to suppress

free speech. Instead, the legislation had the positive goals

of creating a new broadcasting system and supplying the

“educational broadcasting stations’’ which would make

1HLR. 572, reprinted in 1967 U.S. Code Cong. & Ad. News

1799, 1810.

6 Conf. R. No. 7904, reprinted in 1967 U.S, Code Cong. & Ad.

News 1834, 1835.

2) See supra note 25 at 1799,

17

up the system “with programs of a diverse, cultural and

educational nature.’’*

The prohibition against public stations adopting any

editorial opinion as their own was the result of two Con-

gressional conclusions. Congress concluded that there

would be less risk that public stations would be subjec-

ted to pressure from the federal government or other

important sponsors to promote a particular viewpoint if

public stations could not editorialize.2? In this sense,

Section 399’s prohibition of “‘editorializing’” was an

integral part of ‘‘a carefully balanced system of dual

checks against political influence”® over public stations

which were intended to be devoted to cultural and educa-

tional programming.

Additionally, it is apparent from the statement of the

purposes of the Public Broadcasting Act that Congress

had concluded that any editorializing by public stations

could only occur at a cost to and in frustration of Con-

gress’ intention that public stations be committed to the

production of cultural and educational programming.?!

Neither of these Congressional conclusions was related

to the suppression of free speech. In the alternative, the

House Committee which studied the Public Broadcasting

Act stated that “[i]t should be emphasized that this sec-

tion [§399] is not intended to preclude balanced, fair

and objective presentations of controversial issues by

noncommercial stations.”°* Therefore, it is apparent

from a thorough analysis of the legislative history of Sec-

tion 399 that the governmental interest in prohibiting

B see supra note 25 at 1810,

91d,

© Community-Service Broadcasting, 593 F.2d at 1109.

51 See supra note 25 at 1799.

32 See supra note 25 at 1810.

18

public stations from adopting an editorial viewpoint as

their own was only incidentally related to the suppression

of free speech.

b. The Section 399 Prohibition On “Editorial-

izing’ Serves A Substantiai, If Not Compel-

ling, Government Interest

A thorough analysis of the legislative history of the

Public Broadcasting Act reveals that Congress was quite

concerned that public broadcasters remain politically

neutral and not become propaganda organs for Congress

or any other branch of the government. For example,

during debate on the bill on the Senate floor, Senator

Byrd cupreseed his “great fear of Government propa-

ganda.”** Senator Thurmond expressed a similar con-

cern that the bill “could be used to develop and dissemi-

nate propaganda promoting the policies and programs of

the Departments of Health, Education, and Welfare; Hous-

ing and Urban Development; Justice; Agriculture; Com-

merce; and so on. We would have propaganda designed

to influence pending legislation, whether authorization or

appropriation.”** Representative Carter, who opposed

the bill in committee but later voted for passage on the

House floor, said that: “The thing that frightens us is the

possibility of editorializing and controlling public opinion

by a group, or a control group in Washington. That is

what is of concern to most of us.”*> Representative

Brotzman, minority member of the committee, asserted

that “[t] he fear of Government control of programming

was recurrent during consideration of this bill by my

committee. In my mind it was and is a justifiable fear.

However . . . I believe we were successful in adding

33113 Cong. Rec. 12990 (1967).

4113 Cong. Rec. 12992 (1967).

55 Public Broadcasting Act of 1967: Hearings before the House

Committee on Interstate and Foreign Commerce, 90th Cong. Ist

Sess. 342 (1967).

19

amendments [including one prohibiting editorializing and

endorsement of political candidates by noncommercial

sations] which along with a reasonable degree of vigilance

on the part of Congress—will prevent this corporation

from becoming a Government propaganda tool.’’*®

In light of the above analysis of legislative history, it is

apparent that Congress had a substantial interest in enact-

ing the prohibition against endorsements by public sta-

tions of editorial views: to ensure that public broadcast

stations should not be permitted to endorse a particular

position and thus give the impression of governmental

endorsement of that position.

c. The Incidental Restriction On First Amend-

ment Freedoms Created By The Section 399

Prohibition Of Editorializing Is No Greater

Than Is Essential

An analysis of whether there is a less restrictive method

by which Congress could have sought to protect public

stations from being subjected to pressure to editorialize

in favor of the interests of the federal government” or

other important financial supporters, must begin by

focusing on the narrowness of the restraint on First

Amendment expression which Section 399 created. As

construed by the Federal Communications Commission,*®

and as intended by Congress,*? Section 399 does not pro-

%113 Cong. Rec. 26394 (1967).

5’ -There are several ways in which the federal government could

pressure public broadcasting stations to adopt an editorial view-

point favorable to the government's interest. For example, the

Federal Government could utilize the licensing process which is

“itself . . . potential source of federal coercive power over all

broadcasters” to pressure public stations into editorializing in favor

of the government's interests, or at least, not against the govern-

ment’s interests. See League of Women Voters of California v.

F.C.C., 547 F.Supp. at 388.

%8 Accuracy in Media, supra note 4, at 45 F.C.C. 2d at 301.

® supra note 26,

20

hibit public stations from editorializing as that activity is

commonly understood. They may “introduce opinion

into the reporting of facts.”

Section 399’s prohibition of editorializing means only

that public stations may not broadcast editorials “repre-

senting the opinion of the management of such station,””*!

Public stations are otherwise free to editorialize and it

was Congress’ intent that, regardless of Section 399,

public stations should broadcast “balanced, fair and

objective presentations of controversial issues.’”**

There are compelling reasons why no narrower restric-

tion is possible. To begin with, the only constitutional

method available to Congress to prevent public stations

from becoming “vehicles for the promotion of one or

another political cause or candidate’’*? was to prohibit

public stations from endorsing any editorial viewpoint as

their own. Other alternatives for achieving this end

would have resulted in restr.ctions clearly offensive to the

First Amendment. For example, if Congress had allowed

public stations to endorse certain viewpoints as their

own, but tound it necessary to prohibit endorsements

which were “too political” or “unbalanced”, enforce-

ment of the prohibition would certainly be ruled uncon-

stitutional as either an impermissible content regulation

or prior restraint. Notably, these are the same constitu-

tional problems that will arise if this Court finds the

prohibition on public stations adopting an editorial view-

point unconstitutional! as discussed below. Therefore,

due to the narrowness of Section 399’s restraint on edi-

torial freedom, and because of the unavailability of other

effective or constitutional methods of protecting public

stations from economic pressure or preventing them from

© Webster’s New Collegiate Dictionary (1978).

“ Supra notes 38, 39.

© supra note 26,

8 supra note at 25,

21

endorsing political candidates in violation of the other

provision of Section 399, the prohibition of ‘‘editorial-

izing” is no greater than is essential.

d. The Section 399 Prohibition Of ‘‘Editorializ-

ing” Is Within The Constitutional Power Of

The Government

Congress has broad and sweeping power to regulate

broadcasting as part of its authority over interstate and

foreign commerce.“ In order to regulate broadcasting,

Congress created the Federal Communications Commis-

sion, an independent federal regulatory agency, and

charged it with licensing the use of the airwaves.” The

legitimacy of the FCC’s regulation of broadcasters has

been upheld by the Court on numerous occasions.” The

Section 399 prohibition against the endorsement by pub-

lic stations of editorial viewpvints is one small part of the

court upheld regulatory framework Congress has created

for broadcasting and is therefore within the constitu-

tional power of the government.

e. Section 399’s Prohibition Against Public

Stations Adopting An Editorial Viewpoint

As Their Own Is Constitutional

In light of this Court’s determination that the constitu-

tionality of regulations which incidentally restrain First

Amendment expression should be analyzed under the

type of test established in United States v. O’Brien, and

because the Section 399 prohibition of “editorializing”

satisfies all the O’Brien criteria, it is apparent that the

prohibition is constitutional.

“U.S. Const. art. 1, §8, cl. 33.

© see Red Lion, 395 U.S. at 379, 394.

4614, at 394; See also National Broadcasting Co. v. United

States, 319 U.S. 190 (1943); Regents of University System of

Georgia v. Carroll, 78 Ga. App. 292, aff'd 338 U.S. 586 (1950).

22

‘

C. BECAUSE EDITORIALS MAY BE CONSTRUED AS

SUPPORT FOR OR OPPOSITION TO CANDIDATES

FOR POLITICAL OFFICE, A NUMBER OF CONSTITU-

TIONAL AND PRACTICAL DIFFICULTIES WILL -

ARISE IF PUBLIC BROADCASTING STATIONS ARE

ALLOWED TO “EDITORIALIZE”

1. It Is Impossible To Draw A Distinction Between

The Endorsement Of Editorial Views and Sup-

port For, Or Opposition To, A Political Candi-

date

Section 399, as amended in 1981*’ provides: “No non-

commercial educational broadcasting station which

receives a grant from the Corporation [for public broad-

casting] under Subpart C of this Part may engage in edi-

torializing. No noncommercial educational broadcasting

station may support or oppose any candidate for political

office.”

The first provision in Section 399 prohibits public

broadcast stations receiving CPB funding from endorsing

an editorial viewpoint. The second provision of the sec-

tion prohibits all public stations from supporting or

opposing a candidate for political office. Notably, only

the constitutionality of the prohibition against “editorial-

izing” is presently before this Court; the prohibition

against support for or opposition to candidates for politi-

cal office will remain in force regardless of the outcome

of this litigation.

If the lower court decision is upheld, either Congress

or the Federal Communications Commission will be faced

with the impossible task of fashioning a test that distin-

guishes between permissible editorials and editorials

which are, in reality, partisan because they so closely

reflect a particular candidate’s platform. The impossi-

bility of this task stems from the fact that “[t] he editorial

pas. U.S.C. §399 (Supp. 1983) (amending 47 U.S.C. §399

23

process is inherently subjective . . . [and a] decision

appearing to some persons as serving the ‘public interest’

may well appear to others as ‘political’.""*8 The applica-

tion of such a test will involve the government in control

over the content of editorials and such control has con-

sistently been found to be abhorrent to the First Amend-

ment.*”

Aside from this constitutional problem, litigious candi-

dates and their election committees will petition the FCC

for cease and desist orders against editorials by public

stations which appear to support or oppose particular

candidates. Candidates already regularly petition and sue

the FCC for equal time on the air.*” The Federal Election

Commission is also petitioned by candidates ior injunc-

tions because even issue advertisements supporting or

opposing certain political views could be considered “‘con-

tributions” or “negative contributions” in violation of

the Federal Election Campaign Act.?! See, e.g., In

the Matter of Mobil Oil Corporation, MUR 319(76).

Therefore, it is reasonable to believe that the FCC will be

asked to enforce Section 399’s prohibition of public

broadcast stations supporting or opposing political candi-

dates when such stations have engaged in the apparently

permissible form of editorializing.

Should the FCC become involved in content regulation

and determine that a public station’s editorials do sup-

port one candidate over another, it may order that equal

time be allotted to the aggrieved candidate for rebuttal.

48 Muir v. Ala. Educational Television Comm., 656 F.2d 1012,

1023 (5th Cir, 1981), aff'd on rehearing 688 F.2d 1033 (5th Cir,

1982), cert. denied, U.S. ___, 103 S.Ct. 1274 (1983).

® supra note 6,

59 See, Kennedy for President Comm'n. v. F.C.C., 636 F.2d 417

(D.C. Cir. 1980); CBS, Inc. v. FCC, 629 F.2d 1 (D.C. Cir. 1980),

aff'd, 453 U.S. 367 (1981).

519 U.S.C. § 44 1b.

24

The FCC may threaten to revoke the station’s license if it

does not comply with the equal time order.** Compli-

ance with such an FCC order will impose a high cost on

public stations by absorbing some portion of their broad-

casting hours which could otherwise be spent airing cul-

tural and educational programs. In addition to becoming

targets of administrative proceedings during elections,

candidates will seek injunctions by directly suing public

stations which allegedly violate Section 399 by indirectly

supporting and/or opposing candidates. Defense of such

suits will undoubtedly deplete public stations’ limited

finances.

The judiciary will be repeatedly called upon to deter-

mine whether a particular editorial is too “political” to

be allowed under Section 399. Appeals from administra-

tive attempts to fashion a workable distinction between

permissible and impermissible editorials will ‘‘necessarily

involve unacceptable and undesirable judicial intrusion

[in] the editorial process.”°> This conversion of “courts

into super editors’** would be unconstitutional because

courts may not “dictate to the press [or other media] ...

the slant of its editorials.” Miami Herald Publishing Com-

pany v. Tornillo, 418 U.S. 241, 262 (1974). (White J.

concurring). Nevertheless, such a conversion of courts

into “super editors” is a predictable and not speculative

result of allowing public broadcasting stations to “editor-

ialize.”

52.47 U.S.C. §312(a) (7).

53 Muir, 656 F.2d at 1023.

Aid,

25

2. The Fairness Doctrine Is Not Sufficient To

Assure The First Amendment Rights Of The

Public To Balanced Programming As The

Lower Court Believed Nor Will It Prevent

Undue Influence On And By The Public Broad-

caster.

The lower court’s apparent confidence that the Fair-

ness Doctrine® will assure the presentation of balanced

viewpoints if public broadcast stations are allowed to

“editorialize’’ was based merely on the judge’s erroneous

beliefs.5° There are two major errors in assuming the

Fairness Doctrine alone will provide for the presentation

of balanced viewpoints on public broadcast stations.

First, there is an important distinction between present-

ing views and endorsing views. Once the public broad-

caster has endorsed a position, there will be a danger that

the position will be perceived by the public as either ap-

proved by the government, or as a statement of the gov-

ernment’s position. The Fairness Doctrine will not elimi-

nate this danger.

Secondly, the realities involved in the application of

the Fairness Doctrine dictate that the broadcast licensees

have virtually complete discretion “to determine what

issues should be covered, how much time should be allo-

cated, which spokesman should appear, and in what for-

mat.’”?” Consequently, the Fairness Doctrine does not,

in any sense, require broadcast licensees to allow other

in the Matter of Editorializing By Broadcast Licensees, 13

F.C.C, 1246 (1949); Applicability of Fairness Doctrine in the

Handling of Controversial Issues of Public Importance, 29 Fed.

Reg. 10415 (1964). See also, 47 U.S.C. §315(a).

5% | eague of Women Voters, 457 F.Supp. at 386,

57 Notice of Inquiry: The Handling of Public Issues Under the

Fairness Doctrine and the Public Interest of the Communications

Act, 30 F.C.C, 2d 26, 27-28 (1971).

26

persons to express their opinions over the licensees’

facilities.®

The lower court was obviously confusing the Fairness

Doctrine principles with the Commission’s “personal

attack” and “political editorializing’’ rules which were

upheld in Red Lion, 395 U.S. 367 (1969).°° These pro-

visions are distinguishable from the Fairness Doctrine

provisions because the Fairness Doctrine provisions do

not provide any limited right to the airwaves. Rather,

they only require that the licensee present opposing

views on controversial issues of public importance at

some point in its overall programming.” Therefore, as

Justice Brennan, with whom Justice Marshall concurred,

noted in a dissenting opinion in Columbia Broadcasting

System:

Broadcasters may meet their fairness responsibili-

ties through presentation of carefully edited news

programs, panel discussions, interviews, and docu-

mentaries. As a result, broadcasters retain almost

exclusive control over the selection of issues and

viewpoints to be covered, the manner of presenta-

tion, and perhaps most important, who shall speak.

I can only conclude that the Fairness Doctrine,

standing alone, is insufficient—in theory as well as

in practice—to provide the kind of “uninhibited,

The Fairness Doctrine must be distinguished from the “‘equal

time’’ requirement which provides that when one political candi-

date is given air time, other candidates for the same office must be

given equal time.

47 CFR §73.121. The personal attack rule essentially pro-

vides that when an “attack”’ is made on a person’s character, he

must be notified by the broadcaster and be given an opportunity to

respond. The political editorializing rule generally provides that

the endorsement of a candidate creates the necessity of offering

other candidates an opportunity to respond.

® See supra n. 55,

27

robust, and wide-open” exchange of views to which

the public is constitutionally entitled.©!

Even in those very rare instances where the Federal

Communications Commission finds that a broadcaster

acted unreasonably, in bad faith, or both,™ it will direct

the broadcaster to meet its fairness obligations through

additional programming, but the type of programming

will not be specified by the Commission and is left to the

discretion of the broadcaster.™

It should also be noted that there have been strong and

persistent attempts to eliminate all or part of the Fairness

Doctrine. For example, Congress has proposed legislation

to eliminate the Fairness Doctrine,™ and the FCC has

endorsed legislation that would eliminate the Fairness

Doctrine.™ Similarly, the FCC has recently adopted a

61 412 U.S. 94, 186-187.

@ Former Commission Chairman Ferris estimated that the FCC

receives about 5,000 fairness complaints and inquiries each year.

Of these, 97 percent required no license response, so the FCC did

not even alert the licensee involved of the existence of the com-

plaint. According to Ferris, in an average year only 15-20 com-

plaints are resolved in a manner unfavorable to the broadcasters.

First Amendment Clarification Act of 1977: Hearings on S.22 be-

fore the Subcomm. on Communications of the Senate Comm. on

Commerce, Science and Transportation, 95th Cong., 2d Sess. 19

(1978) (statement of Charles D. Ferris, Chairman FCC); See also,

American Security Council Educational Foundation v. FCC, 607

F.2d 438 (D.C. Cir. 1979) cert. denied 414 U.S. 1013 (1980),

wherein Judge Wilkey, with whom Judges McKinnon and Robb

joined in dissenting, indicated that it may be virtually impossible

to prove a Fairness Doctrine complaint because of the require-

ment of prima facie evidence necessary to sustain the complaint.

607 F.2d at 475.

® see supra n. 55.

*1R. 4780, 97th Cong., Ist Sess. (1981); H.R. 4781, 97th

Cong. Ist Sess. (1981).

® see, ¢.g., Letter from Mark S, Fowler, Chairman, Federal

Communications Commission to the Vice President, United States

Senate (Oct. 2, 1981) (discussing FCC proposals to eliminate Sec-

tion 315).

28

Notice of Proposed Rule Making concerning the repeal or

modification of the personal attack and political editorial

rules. This action is in response to a petition by the

National Association of Broadcasters alleging that these

provisions inhibit the presentation of controversial pro-

gramming. Therefore, it is possible that the Fairness Doc-

trine may soon be extinct, or at least severely emascu-

lated. The broadcasters, therefore, would have clearly

“preferred” First Amendment rights and a virtual monop-

oly on what would be aired.”

In light of these practical limitations of the Fairness

Doctrine and the likelihood that the Doctrine may soon

be eliminated, it is apparent that the lower court’s confi-

dence that the Doctrine will somehow ensure the balanced

presentation of editorials and eliminate the danger of

public broadcast station “editorials” being perceived as

statements of governmental viewpoints was unjustified.

Notice of Proposed Rule Making, In the Matter of Repeal or

Modification of Personal Attack and Political and Editorial Rules,

FCC Gen. Docket No, 83-484, adopted June 2, 1983.

© The Public Broadcasting Act does not provide any assurances

of balanced programming either. In Accuracy in the Media, Inc.,

521 F.2d 288 (D.C. Cir.): cert. denied, 425 U.S. 934 (1975), the

Court considered the question of whether the FCC had jurisdiction

to enforce against the CPB Section 396(g)1(A) which states that

objectivity and balance should be encouraged. The Court stated

that the provision “is not a substantive standard, legally enforce-

able by the agency or the courts.”’ 521 F.2d at 297. The Court

went on to state that the wording of the section supports this view,

and that CPB is not required to provide programs with “strict ad-

herence to objectivity and balance” but rather to “facilitate the

full development of educational broadcasting in which programs...

will be made available... .” The Court therefore held that the FCC

has no function in this scheme of accountability established by

§396(g)(1)(A) and the 1967 Act in general other than that as-

signed to it by the Fairness Doctrine. /d. at 297.

29

III]. CONCLUSION

For all of the above-stated reasons in the foregoing

amicus curiae brief, the decision of the District Court

should be reversed.

Respectfully submitted,

LARRY S. SOLOMON

KELLER & HECKMAN

1150 - 17th Street, N.W.

Suite 1000

Washington, D.C, 20036

(202) 457-1134

Attorney for Amicus Curiae,

Mobil Corporation.

Of Counsel:

F. W. DIETMAR SCHAEFER

MOBIL CORPORATION

150 East 42nd Street

New York, New York 10017