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

ALEXANDER | STEVAS,

CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1982

FEDERAL COMMUNICATIONS COMMISSION,

Appellant

Ve

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

NATIONAL BLACK MEDIA COALITION

CHARLES M. FIRESTONE

Communications Law

Program

405 Hilgard Avenue

Los Angeles, Calif. 90024

(213) 825-6211

Counsel for NBMC

September 12, 1983.

QUESTION PRESENTED

Does the provision of Section 399 of

the Communications Act that prohibits

editorializing by noncommercial educa-

tional broadcasting stations that receive

grants from the Corporation for Public

Broadcasting (CPB) violate the First

Amendment?

TABLE OF CONTENTS

QUESTION PRESENTED ....+ +s «

TABLE OF AUTHORITIES CITED .....i

STATEMENT OF THE CASE .... ++ « «

i

i

1

INTEREST OF AMICUS CURIAE . ..... 2

SUMMARY OF ARGUMENT . ... + +++ 3

6

ARGUMENT . . * . . e eo . . . . . ° .

I. THE COURT BELOW CORRECTLY FOUND

SECTION 399's BAN ON EDITORIALIZ-

ING TO BE VIOLATIVE OF THE FIRST

AMENDMENT o * . * * * . * . o . . 6

A. The First Amendment Rights of

the Public, and Particularly

Minority Segments, Are Imping-

ed by Government Suppression

of the Editorial Voices of

Certain Noncommercial Educa-

tional Broadcast Stations .. 6

B. Congress’ Suppression of the

Editorial Voices of Certain

Broadcasting Stations Is

Unnecessary to Achieve a

Compelling Governmental

Interest 7 7 > * ° o * e 7 > 16

1. The Government's Inter-

est in Banning Certain

Editorializing Is

Uncompelling ...... 17

ii.

page

The Governmental Inter-

est Asserted Is Outweigh-

ed by Other, Overriding

Interests in Promoting a

Marketplace of Ideas...

The Statute Is Neither

Narrowly Tailored to Meet

Its Objective, Nor Is It

Reasonably Effective in

Preventing the Perceived

Harm @ J 7 — oe 7 _ * 7 o

There Are Less Restric-

tive Means to Accommplish

the Government's Profess-

G6 @OGh «ec co 6 oe eo eo 8 ¢

a. Segregation of funds.

b. Content-neutral cri-

teria for funding. .

II. IN CONSTRUING SECTION 399, THE

COURT NEED NOT ADDRESS OR RULE ON

OTHER PROVISIONS OF THE COMMUNI-

CATIONS ACT WHICH PLACE OBLIGA-

TIONS ON NONCOMMERCIAL STATIONS .

CONCLUSION

iii.

19

21

31

33

TABLE OF AUTHORITIES CITED

page

Cases

Associated Press v. United States,

326 U.S. 1 (1945) ° ° . . ° * ° co

CBS v. Democratic National Commit-

tee, 412 U.S. 94 (1973) oe ° ° ° .

Community-Service Broadcasting of

Mid-America v. FCC, 593 F.2d

1102 (D.C. Cir. 1978) (en banc) .

. * * > oe eo o eo o o o _ = * ao 16,

Consolidated Edison Co. v. Public

Service Commission, 447 U.S.

> 2) | aa eee |

Citizens Communications Center v.

FCC, 447 F.2d 1201 (D.C. Cir.

1) oe . * * . . o o o eo * . . *

First Nat'l Bank of Boston v.

Bellotti, 435 U.S. 765 (1978) ..

FCC v. Nat'l Citizens Committee

or Broadcasting, 436 U.S. 775

( ) . * os @ * * * * eo > * . *

Gottfried v. FCC, 655 F.2d 297

-C. r. 1981), rev'd in

rt sub nom. Community Televi-

Ao of Southern California v.

Gottfried n >

. U.

S.Ct. 665 (1983). ......ee-e

Mui iple Ownership,

First Report and Order (Dkt.

18110), 22 F.C.C.2d 306 (1970). .

iv.

6

9

30

27

29

16

19

25

page

Nebraska Press Association v.

Stuart, 427 U.S. 539 (1976) ... 21

Office of Communication of the

United Church of Christ v. FCC,

707 F.2d 1413 (D.C. Cir. 1983) . 13

Patsy Mink (WHAR),

59 F.C.C.2d 987 (1976) ...-e«-. 12

Red Lion Broadcasting Corp. v. FCC,

395 U.S. 367 RULED . « 8,9,12,19,24

Regan v. Taxation With Representa-

tion of Washington, 51 U.S.L.W.

83 (May 23, 1983) . .. .« 24,27,28

Report on Editorializing by Broad-

Cast Licensees, 13 F.C.C. 1246

(1949) oe © © @ © @ @ @ @ 12,13,23

WHDH, 16 F.C.C.2d 1, aff'd sub nom.

Greater Boston Broadcasting Co.

v. FCC, 444 F.2 41 (D.C. Cir.

), cert. denied, 403 U.S.

923 (1971) * * . s * eo s e o * * 13

United States Constitution

First Amendment ....... + « passim

Vv.

Federal Statutes

Communications Act of 1934, 48 Stat.

1064, as amended:

47 U.S.C. 8 309 ° > oe . . 7 . 20

47 U.S.C. § 312 e o . o _ ee . 7 20

47 U.S.C. 8 396(c) . . ° ° . . 26

47 U.S.C. § 396 (£) . ° . . ° ° 26

47 U.S.C. § 396 (k) ° ° ° . . ° 31

47 U.8.C. § 398(b) .« « « «© e « SL

47 U.S.C. § 399 > > o >. > . passim

47 U.S.C. § 501 * oe oe > > 7 oe .

Miscellaneous

Beebe & Owen, "Alternative Struc-

tures For Television," (OTP Staff

Paper, 1972), reprinted in

D. Ginsburg, Regulation of

Broadcasting (1878) vere 6 © &

Brown, Television -- The Business

Behind the Box (1971) ....+s+-.h1l

Carnegie Commission on the Future of

Public Broadcasting, A Public

Trust (1979) >. eo * . o oo o oo > o 10

Fang & Whelan, Survey of Television

Editorials and Ombudsman So:

ments, J. Broadcasting 3

(1973) o oe eo _ oe . o e o oe 2 . oO 10

Honig, “Relationships Among EEO,

Program Service and Minority

Ownership in Broadcast Regula-

tion," in Gandy, ed., Proceed-

ings from the Tenth Annual

Setereeeectacrtons Polic

Research Conference (1 > we co ot

vi.

Kurnit, Enforcing the Obligation to

Present Controversial Issues:

The Forgotten Half of the Fair-

ness Doctrine, 10 Harvard Civ.

Rts. Civ. Lib. L. Rev. 137

(1975) J . so eo oe o . _ >. >. > o

J. Mill, Om Liberty . «ec ceeee

Quaal & Brown, Broadcast Management

(1976) . . . . . . . . . . . .

113 Cong. Rec. 26391 (1967) ...-.

vii.

page

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1982

No. 82-912

Federal Communications Commission,

Appellant

Ve

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

NATIONAL BLACK MEDIA COALITION

STATEMENT OF THE CASE

Amicus Curiae adopts the Appellee's

Statement.

INTEREST OF AMICUS CURIAE

The National Black Media Coalition

(NBMC) is a membership organization of

individuals and group affiliates around

the country who have joined together to

assert the needs and interests of

America's substantial Black population in

legal and policy matters regarding com-

munications. It has appeared in many

cases before the Federal Communications

Commission (FCC) and the courts to vin-

dicate the public's interest in obtaining

maximum diversity of information sources,

and to facilitate the expression of mi-

nority points of view to mass audiences.

We believe that the interests of the

substantial Black population, and of

audiences generally, weigh heavily in

favor of the lower court's finding that

Section 399's ban on certain editorial-

izing is violative of the First

Amendment.

2.

SUMMARY OF ARGUMENT

In any balance of First Amendment

interests, the public's right to receive

access to diverse views and voices is

Paramount. Where the Government

restricts speech, its actions must be

Narrowly tailored to achieve a compelling

governmental interest. In this case, the

covernmental interests are uncompelling,

and the means to achieve its goals are

both overly broad and ineffective.

Access to additional editorial voices

is particularly important to minority

audiences, who are not as well served by

commercial radio and television as

majority audiences are. Additional

voices in the marketplace of ideas --

particularly voices not subject to

conventional advertiser pressures --

increase the likelihood that issues of

concern to minority audiences will be

aired. NBMC urges the Court to weigh

3.

heavily in its balance the audience's

paramount First Amendment rights to a

free and open marketplace of ideas.

When First Amendment analysis is

applied to Section 399, it fails virtual-

ly every test. The governmental aims are

at best uncompelling, since they are

vague, speculative and suspect. The

heavy-handed means Congress chose to meet

its aims are ineffective and overly broad

at the same time. They certainly are not

"narrowly tailored." And they are more

restrictive of First Amendment rights

than other alternatives such as segregat-

ing government funds or mandating by law

that the content of editorials could not

enter into governmental funding deci-

sions. Censorship of important voices

should be the last resort to a signifi-

cant and serious problem, not an easy

tool for stifling criticism of the status

quo or opposition to the incumbents'

reelection.

Finally, NBMC cautions against a

decision in this case that might jeopar-

dize other provisions of the Communica-

tions Act relating to public broad-

casters. In requiring equal employment

opportunities and community advisory

boards, Congress is not suppressing

speech as it does directly in Section

399. NBMC urges, then, a narrow decision

affirming the lower court.

ARGUMENT

I. THE COURT BELOW CORRECTLY FOUND

SECTION 399's BAN ON EDITORIALIZING

TO BE VIOLATIVE OF THE FIRST

AMENDMENT.

A. The First Amendment Rights of the

Public, and Particularly Minority

Segments, Are Impinged by Govern-

ment Suppression of the Editorial

Voices of Certain Noncommercial

Educational Broadcast Stations.

The National Black Media Coalition's

Starting point in the consideration of

First Amendment interests in broadcast-

ing, where there is only a limited number

of governmental licenses, is this Court's

statement in Associated Press v. United

States, 326 U.S. 1, 20 (1945), that the

‘First Amendment “rests on the assumption

that the widest possible dissemination of

information from diverse and antagonistic

sources is essential to the welfare of

the public. ..."

Consistent with this view, the FCC

has adopted many policies and rules aimed

at increasing the number of voices avail-

able to local audiences over the air-

waves. In adopting multiple ownership

rules in 1970, for example, the Conumis-

sion held to the view that "60 different

licenses are more desirable than 50, and

even that 51 are more desirable than

50." Multiple Ownership, First Report

and Order (Dkt. 18110), 22 F.C.C.2d 306,

311 (1970).

This doctrine of diversity is most

important to minority audiences. Almost

by definition, minority audiences are the

last to be served by a system of limited

entry and licensing. That is, where

there are only a few competing stations

in a given market, they are most likely

to serve majority audiences.2/ As more

stations enter the market, there is a

greater opportunity for and likelihood of

programming service aimed at minority

audiences. Thus, NBMC has consistently

championed laws, rules and policies that

open entry into the broadcast marketplace

-- new and diverse sources to express

divergent viewpoints. Conversely, we

oppose efforts to stifle the relatively

few voices licensed to operate broadcast

stations, at least where such restric-

tions are not necessary to enhance the

opportunities for other, non-licensees to

express their opinions over the air-

waves a

i/ See, e.g., Beebe & Owen, "Alter-

native Structures For Television," (OTP

Staff Peper, 1972), reprinted in

D. Ginsburg, Regulation of Broadcasting

(1978), at 324-25.

2/ Thus, NBMC has favored applica-

tion of the Fairness Doctrine to proad-

casting. See Red Lion Broadcasting Corp.

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

While individuals do not have a right

of access to speak over broadcast

stations, CBS v. Democratic National

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

do have a right "to receive suitable

_ access to social, political, esthetic,

moral, and other ideas and experi-

ences. . . ." Red Lion, supra note 2,

395 U.S. at 390. It is this paramount

interest of the audience which we assert

here is served by declaring Section 399's

ban on editorializing unconstitutional.

The voices of noncommercial educa-

tional stations subject to the censorship

of Section 399 could contribute in

several ways to the public's right to

diverse information sources,

First, any additional voice presents

the greater likelihood of new information

entering the marketplace of ideas. As

the number of stations increase, one (or

more) of the stations -- whether a

9.

noncommercial station or a commercial one

in the same market -- is more likely to

address minority problems or issues.

Fifty-one voices are better than fifty.

Second, noncommercial stations are

not subject to pressures from advertis-

ers, actual or perceived, not to cover

certain controversies.2/ As the Carnegie

Commission on the Future of Public Broad-

casting recognized in its report,

A Pubdlic Trust (1979), at 25, ". . . pub-

lic proadcasting creates programs to

serve the needs of audiences, not to sell

products or to meet the demands of the

marketplace. This ideal demands that

public television and radio attract

viewers and listeners whose tastes and

3/ See, e.g., Fang & Whelan, Survey

of Television Editorials and Ombudsman

Segments, 1? J. Broadcasting 363, 367

T1873) (many stations avoid editorials so

as not to offend advertisers); Quaal &

Brown, Broadcast Management (1976),

at 356.

10.

interests are significant, but neglected

or overlooked by media requiring mass

audiences." Noncommercial stations can

thus be expected to provide different and

additional viewpoints on some subjects

from those stations subject to commercial

pressures.4/

Third, if the purpose of educational

broadcasting is to educate and inform,

then responsible editorializing, subject

to the Fairness Doctrine, can be an

4/ To a certain extent minorities

are further disserved by the commercial

broadcast system than most other compon-

ents of the general audience. In commer-

cial broadcasting, audiences are the

product sold py the thousands to adver-

tisers, who are the consumers (of audi-

ences supplied by the broadcaster).

Advertisers look for audiences that are

affluent and likely to buy their prod-

ucts. The poor, minority, elderly or

rural audiences are often demographically

undesirable. Thus broadcasters are not

anxious to serve such audiences, since to

do so lessens the attractiveness of their

product to advertisers. See ees

Brown, Television -- The Business Behind

the Box (1971).

ll.

important addition to a station's overall

educational fare.

Fourth, editorializing raises new

issues to the public agenda. It spot-

lights issues which might otherwise be

ignored by the general public. In this

way it is an important supplement to the

Fairness Doctrine, which (with but one

case exception)2/ provides only for

programs to balance issues already

raised. Red Lion, supra note 2, 395 U.S.

at 369. In fact, the Fairness Doctrine,

from the beginning, has been premised on

a broadcaster's ability to editorialize.

Report on Editorializing by Broadcast

3/ In Patsy Mink (WHAR), 59 F.C.C.2d

987 (1976), the Commission sanctioned a

station for its failure to cover a

"burning issue" initially. This is the

only instance of the FCC's enforcing the

affirmative part of the doctrine to cover

controversial issues. See generall

Kurnit, Enforcing the Obligation to Pre-

sent Controversial Issues: The Forgotten

Half of the Fairness Doctrine, 10 Harvard

Civ. Rts. Civ. Lib. L. Rev. 137 (1975).

12.

Licensees, 13 F.C.C. 1246 (1949) .2/

In addition, as the Commission has

deregulated in radio, and is proceeding

to do so in television, it has discarded

its "ascertainment" procedures. See

Office of Communication of the United

Church of Christ v. FCC, 707 F.2d 1413,

1419, 1435 (D.C. Cir. 1983). This

process required licensees to ascertain

local needs and problems and to program

responsively to those issues. These

procedures generally helped in the airing

of issues of particular concern to minor-

ities -- many of which would likely have

been ignored otherwise. As these proce-

dures are abolished, it is more important

for audiences to have access to as many

8/ In WHDH, 16 F.C.C.2d 1, aff'd sub

nom. Greater Boston ee Co. V.

FCC, 444 F.2d 841 (D.C. Cir. 1970), cert.

denied, 403 U.S. 923 (1971), the Commis-

Sion placed a slight demerit on the in-

cumbent licensee in a comparative hearing

for its failure to editorialize.

13.

different voices as possible, in the hope

that minority issues, needs and problems

will be addressed at least by some.

Finally, the relatively few minority-

controlled noncommercial broadcast sta-~

tions are extremely important voices in

minority communities. Blacks, Hispanics,

Asians, and American Indians, who com-

prise approximately 20% of the United

States population, control fewer than 2%

of the nation's broadcast outlets.2/

Approximately 13% of those very few sta-

tions are noncommercial. Thus, while any

denial of editorial voices is significant

to minorities, the denial of 13% of the

minority-controlled voices is even more

significant, in view of their dispropor-

tionately few outlets nationwide.

yY/ See, e.g., Honig, “Relationships

Among EEO, Program Service and Minority

Ownership in Broadcast Regulation," in

Gandy, ed., Procees=n4s from the Tenth

Annual Telecommunications Policy Research

Conference (1983).

14.

In sum, NBMC urges the Court to con-

sider strongly the listeners’ interests

in maximizing diverse voices in the

necessarily limited scheme of broadcast

regulation. As we have shown, the First

Amendment interests of minority audiences

are particularly affected by Section 399.

Additional voices are needed in the

marketplace, and we believe that stations

subject to the ban of 3599 are more likely

than not to raise issues of import and

concern to minority audiences.

We turn now to an analysis of these

various concerns and interests in apply-

ing the First Amendment to the statute in

issue in this case.

15.

B. Congress' Suppression of the

Editorial Voices of Certain

Broadcasting Stations Is Unneces-

sary to Achieve a Compelling

Governmental Interest.

This Court repeatedly has emphasized

that in order to interfere with the exer-

cise of a fundamental right, the Govern-

ment must demonstrate a compelling state

interest and a narrowly-tailored restric-

tion designed to protect that inter-

est .2/ As we show below, the interest

asserted to justify the Government's

editorial ban is (1) vague and specula-

tive, (2) outweighed by other, strongly-

accepted goveramental interests in the

broadcasting cield, and (3) both

8/ See Consolidated Edison Co, v.

Public Service Commission, 447 U.S. 530

(1980); First Nat'l Bank of Boston v.

Bellotti, 435 U.S. 765 (1978); Community-

Service Broadcastin of Mid-America v.

FCC, 593 F.2d 1102 (D.C. Cir. 1978) (en

banc).

16.

underinclusive and overly broad in trying

to achieve the professed interest.

1. The Government's Interest in

Banning Certain Editorializ-

ing Is Uncompelling.

The stated Congressional interest in

enacting Section 399 was to prevent

noncommercial broadcasting stations from

becoming “mouthpieces” for the Govern-

ment. This is dubious, however, in light

of the legislative history showing Con-

gressional fear of opposition to incumb-

ents.2/ In addition, the professed goal

is overly vague. What constitutes the

2/ the House debate on the 1967

Public Broadcasting Act focused on some

Congressmembers' fears that editorials

might harm them politically. As one

example, Representative McClure worried

that if noncommercial broadcasters were

given the right to editorialize, they

might be "crusad[ing]) for [his] opponent

in next year's election." 113 Cong. Rec.

26391 (1967).

17.

Government? Is it the President? If so,

there appears to be no possibility of

undue influence as the President does not

disburse CPB funds. Is Congress “the

Government"? Again, there is no danger

as Congress is a diverse group unlikely

to hold a single opinion on any contro-

versial issue.

Even if the ambiguous Congressional

motive is accepted, it is pure specula-

tion whether noncommercial proadcasting

stations will become Government mouth-

pieces. The lower court correctly

deduced that this fear is unjusti-

tiea,20/ Section 399 is aimed at

hundreds of diverse stations that will

not agree on all issues. As we explain

above, NBMC is more concerned that the

ban stifles important discussion than

10/ League of Women Voters of

California v. FCC, 347 F.Supp. 370, 385

(C.D. Cal. 1982) (J.S. App. at l4a-15a).

18.

that there may be some purely hypo-

thetical chance that a broadcaster will

become a mouthpiece for the Go\ ?rnment.

The ground is simply uncompelling.

2. The Governmental Interest

Asserted Is Outweighed by

Other, Overriding Interests

in Promoting a Marketplace of

Ideas.

The purpose of the First Amendment is

to "preserve an uninhibited marketplace

of ideas... ,2)/ In a free society,

there is a strong governmental interest

in enhancing speech, yet Section 399

strikes down the number of voices that

il/ Red Lion Broadcasting Co. v. FCC,

supra, 395 U.S. at 390 (1969). in FCC v.

Nat Citizens Committee for Broadcast-

(ear 436 U.S. 775, 801-02 (1978), the

Oourt recognized "diversity of informa-

tion heard by the public without ongoing

government surveillance of the content of

speech” as a legitimate "governmental

interest" in First Amendment analysis.

19.

can be heard over the airwaves. The

American public relies on broadcasting

stations for access to ideas and infor-

mation. Yet by prohibiting hundreds of

diverse noncommercial stations from

editorializing, Section 399 significantly

limits the viewpoints to which the public

is exposed. As explained in Section A

above, this limitation works particularly

tc the detriment of minority audiences

who most need First Amendment protection.

Furthermore, because the penalties

are so severe for violation of the edito-

rializing ban of the Communications

Act -- including nonrenewal or revocation

of license under 47 U.S.C. §§ 309, 312,

Or a significant jail term and fine under

47 U.S.C. § 501 -- this statute may chill

other, non-editorial speech. Broadcast-

ers may fear to express themselves or may

misunderstand what technically consti-

tutes “editorializing.” Again, the

20.

listener's interest and the governmental

interest in free flow of information is

defeated by the statute.

3. The Statute Is Neither

Narrowly Tailored to Meet Its

Objective, Nor Is It Reason-

ably Effective in Preventing

the Perceived Harm.

Where First Amendment rights are

involved, the means created to achieve a

conflicting governmental goal must be

precisely tailorea,22/ Since Section 399

does not achieve its purposes, despite

its severe restraints on editorial

discretion, it cannot meet this "narrowly

tailored” test.

(a) If noncommercial broadcasting

licensees agree with Congressional or

12/ nebraska Press Association v.

Stuart, 427 U.S. 539 (1976).

21.

Presidential stands on particular issues,

they (like their print media colleagues)

should have the right to express that

agreement. Opposing opinions are guar-

anteed presentation through the Fairness

Doctrine. Section 399 is unnecessary to

ensure that the public hears ideas and

positions opposing the Government.

(b) Furthermore, by censoring only

overt editorials, in which the licensees

truthfully state their partisanship,

Section 399 will not succeed in eliminat-

ing all editorial comment by noncommer-

cial stations subject to the ban.

Section 399 applies only to editori-

alizing by noncommercial stations -- not

to other types of programming. Indeed,

the Government admits that Congress does

not want to restrict controversial or

political programs. (FCC Br. at 41.)

Yet the FCC has noted that editorial

expressions occur in a variety of forms,

22.

ranging from the overt state-

ment of position by the li-

censee in person or by his

acknowledged spokesmen to the

selection and presentation of

news editors and commentators

sharing the licensee's gener-

al opinions or the making

available of the licensee's

facilities, either free of

charge or for a fee to per-

sons or organizations re-

flecting the licensee's view-

point either generally or

with respect to specific

issues. 13/

Opviously, it is preferable that a

licensee's personal opinion clearly be

Stated as such than that it appear more

subtly as part of regular programming.

As the FCC has emphasized, "the [p]ublic

has less to fear from the open partisan

than from the covert propagandist. "24/

(c) The Government asserts that

Section 399 is not overly-restrictive as

13/ Repert on Editorializing b

Broadcast Licensees, 13 F.C.C. iat, 1252

(1949).

14/ 34,, 13 F.C.C. at 1254.

23.

it permits station employees, academics,

experts and others to express the sta-

tion's opinion. (FCC Br. at 41.) But,

as Justice Blackmun correctly noted in

his concurrence in Regan v. Taxation With

Representation ,22/ "it hardly answers one

person's objection to a restriction on

his speech that another person, outside

his control, may speak for him, "28/ The

public is best served when arguments are

presented by those "who actually believe

them; who defend them in earnest, and do

their very utmost for them, "+2/

(d) Finally, if the true governmental

goal is to prevent broadcasting stations

that receive governmental aid from

15/ Regan v. Taxation With Repre-

sentation of Washington, 51 U.S.L.W. 4583

(May 23, 1983).

18/ 14., U.S.L.W. at 4587.

17/ 5. Mill, On Liberty 32, cited

with approval in Red Lion supra note 2

395 U.S. at 392 n.16. SM ‘

24.

becoming propaganda tools, there is no

justification for applying the ban only

to noncommercial stations. Commercial

stations are dependent upon the govern-

ment for their very valuable licenses.

These free licenses can be worth over

$200 million, and are negative govern-

mental subsidies to those who receive

them.28/ Because broadcast licenses are

not automatically renewed, the potential

loss of a valuable broadcasting license

is a much greater threat to create

governmental mouthpieces than limited

government funding of public broad-

casters. Yet there has been no adequate

explanation as to why the Government has

Singled out noncommercial licensees for

the editorial ban.

18/ see, e.g., Gottfried v. FCC, 655

F.2d 297, 312 n.55 (D.C. Cir. 1981),

rev'd on other grounds sub nom. Community

Television of Southern California v.

Gottfried, U.S. » 103 B. Cte 885

(1983).

25.

4. There Are Less Restrictive

Means to Accommplish the

Government's Professed Goal.

Although the current safeguards out-

side Section 399 fully protect noncommer-

cial broadcasters from government influ-

ence ,22/ alternative restrictions are

available that will not interfere with

the First Amendment.

a. Segregation of funds.

Congress might require that no

governmental funds be used to produce

editorials. Noncommercial broadcast

stations currently are required to

19/ E.g., the Corporation for Public

Broadcasting (CPB), an independent, non-

profit corporation responsible for dis-

bursing funds to noncommercial stations,

is sufficiently insulated from political

concerns. CPB board members are appoint-

ed by the President, with the advice and

consent of the U.S. Senate for six-year

terms, and with other safeguards to guard

against governmental influence. 47

U.S.C. §§ 396(c) and (f).

26.

maintain certain records and undergo

annual audits, so this suggestion is

easily implemented. Just as the Court in

Regan v. Taxation With Representation

suggested that TWR could establish two

separate corporations,42’ noncommercial

broadcasters could establish two separate

accounts -- one for general operations

and another for producing and presenting

editorials. This solution is further

supported by the Court's discussion in

Consolidated Edison v. Public Service

Commission, 447 U.S. 530 (1980). In that

case, the Court ruled that the Commission

could not prohibit public utilities from

including controversial inserts in their

billing envelopes. The Court suggested

that the utility company could allocate

the costs of producing the controversial

20/ Regan, supra note 15, 51 U.S.L.W.

at 4584.

27.

inserts to its shareholders so that the

ratepayers would not be subsidizing the

speech. 21/

b. Content-neutral criteria

for funding.

Another narrowly-tailored means to

achieve Congress’ goal is to mandate

purely objective standards for the CPB to

follow in disbursing funds. Although

this already appears to be the case,

Congress could further specify that no

funding decisions shall be determined in

any way by how an applicant editorialized

on any issue. In that way, stations

would have no incentive to use their

editorials to curry favor.

Indeed, independence from government-

al domination is a requirement for FCC

2)/ Consolidated Edison, supra

note 8, 447 U.S. at 543.

28.

license renewal. As explained in Citzens

Communications Center v. F.C.C.,

the failure to promote the

full exercise of First Amend-

ment freedoms through the

broadcast medium may be a

consideration against license

renewal. Unlike totalitarian

regimes, in a free country

there can be no authorized

voice of government. Though

dependent on government for

its license, independence is

perhaps the most important

asset of the renewal appli-

cant. 22/

In sum, Section 399 does not meet the

stated government goal. Instead, it

violates the First Amendment by limiting

the public's right to receive valuable

and needed information. There is no jus-

tification for treating noncommercial

Stations that accept funds from the

insulated CPB differently from commercial

Stations that are dependent upon the

government for their valuable licenses.

22/ Citizens Communications Center v.

FCC, 447 F.2d 1201, 1214 (D.C. Cir. 1971).

29.

As the court succinctly stated in

Community-Service Broadcasting of Mid-

America, Inc. v. FCC, 593 F.2d 1102, 1110

(D.C. Cir. 1978) (en banc): "Clearly the

existence of public support does not

render the licensees vulnerable to inter-

ference by the federal government without

regard to or restraint by the First

Amendment. .. ."

The statute is not narrowly tailored

to achieve its purpose and its ends are

not compelling under all the circum-

stances and safeguards inherent in public

broadcasting.

30.

II. IN CONSTRUING SECTION 399, THE COURT

NEED NOT ADDRESS OR RULE ON OTHER

PROVISIONS OF THE COMMUNICATIONS ACT

WHICH PLACE OBLIGATIONS ON NONCOM-

MERCIAL STATIONS.

The statute at issue in this case is

aimed specifically at suppressing the

editcrial voices of noncommercial broad-

casters. It thus must undergo the

Strictest form of scrutiny from the

courts and require a most compelling

justification. As we set forth above,

the statute is unconstitutional.

In contrast, however, are the provi-

sions of the Act which require noncommer-

cial broadcasters to adopt procedures

designed to encourage affirmative action

in employment and for community involve-

ment, 47 U.S.C. §§ 398(b)(1) and

396(k) (9) (A) (1982 Supp.). These provi-

sions are not directly suppressive of the

broadcasters’ speech; indeed, where there

31.

is any relationship to programming at

all, they are designed to enhance the

free speech rights of the public.

Certainly these provisions are not in

issue in this case, and therefore are not

before the Court. Nevertheless, NBMC

respectfully draws the Court's attention

to them in the hope that, in affirming

the lower court, this Court does not

sweep too broadly. Provisions in the

Communications Act prescribing duties for

broadcasters do not contravene the First

Amendment where they are not direct bans

on certain voices or specific content.

32.

CONCLUSION

.For the foregoing reasons, Amicus

Curiae National Black Media Coalition

respectfully urges the Court to affirm

the court below.

Respectfully submitted,

4 (adil, Yytetrca -

CHARLES M. FIRESTONE

Communications Law

Program*

405 Hilgard Avenue

Los Angeles, Calif. 90024

Counsel for NBMC

Of Assistance:

Sally Helppie, Law Student

Terry White, Law Student

UCLA School of Law*

September 12, 1983.

* For identification purposes only. This

brief is not intended to reflect the

position of the Regents, University of

California.

33.