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

| Office - Supreme Court, U.S

' FILTN

No. 82-912 SEP 19 1983

IN THE ALEXANDER L. STEVAS

Supreme Court of the Unitei —

OCTOBER TERM, 1982

FEDERAL COMMUNICATIONS COMMISSION,

. Appellant,

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, et ai.,

Appellees.

On Appeal from the United States District Court

for the Central District of California

BRIEF OF AMICI CURIAE

PUBLIC BROADCASTING SERVICE AND

NATIONAL ASSOCIATION OF

PUBLIC TELEVISION STATIONS

IN SUPPORT OF APPELLEES,

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

LAWRENCE A. HORN

General Counsel

NANCY H. HENDRY *

Deputy Genera! Counsel

BARBARA S. WELLBERY

Deputy General Counsel

475 L’Enfant Plaza West, S.W.

Washington, D.C. 20024

(202) 488-5053

Attorneys for Amicus Curiae,

Public Broadcasting Service

THEODORE D. FRANK

ARENT, Fox, KINTNER, PLOTKIN

& KAHN

Washington Square

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5339

(202) 857-6016

Attorney for Amicus Curiae,

National Association of

* Counsel of Record Public Television Stations

WILSON - Epzs Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

EE DEAF IEEE TEED cet covecenesecoccoversenersenecsosnonninn

INTEREST OF AMICI CURIAE ......00.0000.0..:..cccccceseeeeee

SUMMARY OF ARGUMENT ..u............0...c0.c-csecsrsesereeseees

I. Public Broadcasting Is Not a Federal] Enterprise,

But a Local One for Which Congress Has Pro-

vided Financial Assistance To Enhance the Local

I a ch amadinsbuwtnnans

A. The Public Broadcasting Act Was Intended

To Aid Local Public Broadcast Stations........

B. The Public Broadcasting Act Imposes No

Special Programming Obligations on Public

rT saibserennesintninns

C. State and Local Government Participation

in Public Broadcasting Does Not Make It a

Federal Government Enterprise ....................

II. The Editorializing Ban Is an Unconstitutional

Restriction on the Core First Amendment Right

of Public Broadcasters To Participate in the De-

bate on Issues of Public Importance ....00000000000.....

A. Section 399 Is a Content-Based Regulation

Which Can Be Justified Only Under the

Strictest First Amendment Standards ............

B. Section 399 Serves No Compelling Govern-

ARE Ean el ce CO ao

1. The Editorializing Ban Is Not Necessary

To Prevent Federal Government Control

of Public Broadcasters’ Programming....

2. No Valid Government Purpose Is Served

by Shielding the Public from Public

Broadcasters’ Editorializing .......00.00000......

C. The Editorializing Ban Is Not the Least Re-

strictive Alternative fc r Addressing Concerns

about Government Propaganda ......................

CONCLUSION

a coer

11

15

26

ii

TABLE OF AUTHORITIES

Cases: Page

Accuracy in Media v, FCC, 521 F.2d 288 ................ 9, 21

SECTS ©. FP RNOO: SIG lle Be vseescctheccncccsensinniinioiupiai 18

Carey v. Brown, 447 U.S. 466 ..........ccccccccescscscssecceses 18

Columbia Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94 2000... ...cceecceeeeceeeeeeeees 4,13

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

WINE a dicencuceee. BN a clan ote ee ee 17, 18

Community Television of Southern California v.

Gottfried, —— U.S. ——, 108 S.Ct. 885 ............ 15, 16

Consolidated Edison Co. v. Public Service Commis-

On CEE TE CD science chet kee 19

Evening Star Broadcasting Co., 27 F.C.C.2d 316.... 22

FCC v. Pacifica Foundation, 438 U.S. 726 ................ 16

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

NTI <idint) coiidatebicdeansitsokecssiitadsaicgenassataadaaaidadiemedaaal 18,19

Linmark Associates, Inc. v. Township of Willing-

ee Ge TR, TO Sita a cetieitcccee ce canancan 18

Mills v. Alabama, 384 U.S. 214 .......02.......0cccccceceeeseeeee 21

Police Department of Chicago v. Mosley, 408 U.S.

Re et rt nr RECS AE kare ee AL 18

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.... 4,16

Regan v. Taxation With Representation, USS.

6 8) Sf eee 17

RKO General, Inc., 44 F.C.C.2d 149 0.000000. 21

Speiser v. Randall, 857 U.S. 618. ................ccsccccceeeeees 17

Virginia State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, 425 U.S. 748 .................... 26

WHDH, Inc., 16 F.C.C.2d 1, reh’g denied, 17

AERA GEE Cloctmieicindahidis sinthuncbaneninimdabieadamendadins Naas 22

Whitney v. California, 274 U.S. 857 —..000000000000000..... 5, 27

Constitution, statutes and regulations:

iis Ren PAINE, (T.-......:.-sieincsiitslondetiapsoianicininlopaaianal passim

Communications Act of 1934, 47 U.S.C. §§ 15}

RLS ARAN Ue AIS Fem TENT SIRO 3

GT WE. SORS Cy VP cicictecttiee nl 13

Educational Television Broadcasting Facilities Act

of 1962, Pub. L. No. 87-447, 76 Stat. 64 ..000000000..... 12

iii

TABLE OF AUTHORITIES—Continued

Page

Public Broadcasting Act of 1967, 47 U.S.C. §§ 390-

ete hg eR er SSO See 3

Pub. L. No. 90-129, § 201, 81 Stat. 371 ............ 11

47 U.S.C. §396(a) (6) and (7) (Supp. V).... x

47 U.S.C. §396(g) (1) (A) (Supp. V)............. i)

47 U.S.C. § 396(g) (1) (D) (Supp. V).............. 8

47 U.S.C. §396(g) (3) (Supp. V) .................... 8

47 U.S.C. § 396(k) (3) (A) and (k) (6) (Supp.

__), RRA RRA ES BOD 2 SAAR Ce ~

47 U.S.C, § 396(k) (3) (B) (i) (Supp. V)...... R

47 U.S.C. § 896(k) (6) and (7) (Supp. V).... R

47 U.S.C. §396(k) (9) (C) (Supp. V) ............ 10

47 U.S.C. § 396(1) (3) (B), (C) & (D) (Supp.

OI a a icenaipbetebionsiicepenselt 10

eo csiectaaation 11

GF Te BO CII. YD cnncrcecccccneccscesccssrreons 9, 19, 26

47 U.S.C. §398(a) (Supp. V) .....................0.. 12, 26

47 U.S.C. §398(b) (2)-(5) (Supp. V) ......... 11

47 U.S.C. $888(c) (Supp. V) .......................... 26

ee Eye SD A 4 acne CRE passim

47 U.S.C. §3998b (Supp. V) ............................. 38

Public Broadcasting Amendments Act of 1981, Pub.

Ss S + & & — 4. Saeeepetece sie 8

47 C.F.R. Part 73:

I al 3

Miscellaneous:

Carnegie Commission on the Future of Public

Broadcasting, A Public Trust (1979) oo... 7

108 Cong. Rec. (1962) :

ER a EEE ead Ome ae OTN 12, 24

TEE 2 AES Rae Pe SAO 12, 24

Nt ee Rs RA 7S Relea 12, 24

EE Rae SE A eerie, rn See RL 12, 24

Es ECR a seer ae Pate? 12, 24

ESR Senco OaaR ey 21

118 Cong. Rec. (1967):

I a 18

I cs stetiih hehe cals snineeiiaieiedndilanied tlimesicieisaeiittnaise acl 18

iv

TABLE OF AUTHORITIES—Continued

Page

IRI IGE VS ae Ae pe nt Oe a me ee sO 22

A AN TEN See ea 18

Pe aR SES PETE ae eRe Oe Soe See 22

I ao cchcapuenbesouiniinnde 24

er I Ric ee oR 22

CPB, Public Broadcasting Income, Fiscal Year

ey I dF cclesenhondaniaadl 14

Editorializing by Broadcast Licensees, 138 F.C.C.

RR a ROE ee EWE Ra as 5, 22, 23

H.R. Rep. No. 572, 90th Cong., 1st Sess. (1967)... 7

H.R. Rep. No. 794, 90th Cong., Ist Sess. (1967)... 10

H.R. Rep. No. 1178, 95th Cong., 2d Sess. (1978)... 10

Public Television Act of 1967: Hearings on H.R.

6736 and S, 1160 Before the House Comm, on

Interstate and Foreign Commerce, 90th Cong.,

Be I ID ait saicasceaccictncaseniatiodied 6, 10, 12, 16, 20, 23

Public Television Act of 1967: Hearings on S, 1160

Before the Subcomm, on Communications of the

Senate Comm. on Commerce, 90th Cong., 1st

AAT an Tee pence oe 6, 7, 10, 20

Report and Statement of Policy re Commission En

Bane Programming Inquiry, 44 F.C.C. 2308........ 17, 21

Report of the Carnegie Commission on Educational

Television, Public Television—A Program for

I a ee 7

S. Rep. No. 222, 90th Cong., Ist Sess. (1967)........ 24

S. Rep. No. 813, 94th Cong., 2d Sess. (1976)........ 14

Sixth Report and Order on Television Allocations,

— ee” Fh, eR ER SE es 12

Wollert & Haney, Editorializing and Fundraising:

Does It Mix? 7 Pub. Telecommunications Rev.,

eR RS, ee re eee 25

IN THE

Suprene Court of the United States

OCTOBER TERM, 1982

No, 82-912

FEDERAL COMMUNICATIONS COMMISSION,

‘ Appellant,

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, e¢ al.,

Appellees.

On Appeal from the United States District Court

for the Central District of California

BRIEF OF AMICI CURIAE

PUBLIC BROADCASTING SERVICE AND

NATIONAL ASSOCIATION OF

PUBLIC TELEVISION STATIONS

IN SUPPORT OF APPELLEES,

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

INTEREST OF AMICI CURIAE

The Public Broadcasting Service (“PBS”) and the Na-

tional Association of Public Television Stations (““NAPTS”)

submit this brief amicus curiae in support of Appellees,

League of Women Voters of California, et al. PBS and

NAPTS are both private, nonprofit, membership corpora-

tions organized under the laws of the District of Colum-

bia. Each is governed by a Board of Directors elected by

its members, which are the licensees of noncommercial

educational, or public, television stations located through-

out the United States and its territories. Neither PBS

nor NAPTS has any structural ties to the Corporation

for Public Broadcasting (“CPB”) or any government

2

agency. Substantially all of the services provided by each

organization are paid for by the member stations. Each

may also receive corporate and foundation contributions,

as well as specific project grants and contracts from CPB

and others.

NAPTS was established by public television stations to

perform national representational functions on their be-

half. NAPTS provides an organizational framework for

public television stations to coordinate their activities in

non-programming areas. Its activities include research,

planning, and representation of the interests of public

television stations before Congress, federal agencies, CPB,

and the courts.

Thus, NAPTS has a vital interest in seeing that its

members are freed from the unconstitutional burden that

Section 399 of the Communications Act of 1934, as

amended, 47 U.S.C. § 399 (Supp. V 1981) (“Section

399”) imposes on their First Amendment rights. That

Section prohibits any noncommercial educational broad-

casting station which receives CPB funding from express-

ing the opinion of the licensee or station management on

any issue, whether partisan or not, from drunk driving

to urging people to vote. Not only does this impermissi-

bly limit public broadcasters’ participation in the debate

on such issues, but it deprives the public of a significant

voice on matters of local concern.

PBS was established by public television stations to

operate distribution facilities that interconnect the local

stations by satellite and enable them to share program-

ming on a national basis.’ Although PBS assists its mem-

1 PBS stands for Public Broadcasting Service, not Public Broad-

casting System, as the briefs for the government and amicus curiae

Mobil Corporation mistakenly call it. Brief for the United States at

14 & n.23 (hereinafter cited as “Gov't Brief”); Brief of Amicus

Curiae Mobil Corporation at 3. The name Public Broadcasting Serv-

ice was chosen to underscore that PBS is not a network dictating

program choices for affiliates, but an organization created to fill the

service needs identified by its members.

bers to acquire, schedule, publicize, promote, and distrib-

ute programming, its Articles of Incorporation bar it from

producing any programming or from owning and operat-

ing a broadcast station. Each member station retains the

absolute right to determine whether and when to broad-

cast any program distributed by PBS, and PBS is but one

of many programming sources for the stations. Thus,

“public broadcasting” remains a collection of autonomous

and fiercely independent local stations.

As a provider of programs to public television stations,

PBS has a vital interest in ensuring that those stations

enjoy the same programming discretion accorded other

broadcasters licensed by the Federal Communications

Commission (“FCC”). PBS has participated amicus

curiae, on behalf of its member stations, before numerous

courts in defense of fundamental First Amendment prin-

ciples.

SUMMARY OF ARGUMENT

The government’s argument that Section 399 is justified

by some special obligation imposed on public broadcasters

by their receipt of CPB funds reflects a fundamental mis-

understanding of the federal government’s role with re-

spect to public broadcasting. Public broadcasters have no

greater obligations under the Communications Act of

1934, as amended, 47 U.S.C. §$ 151 et seg. (“Communica-

tions Act”), than commercial broadcasters. Nor does the

Public Broadcasting Act of 1967, as amended, 47 U.S.C.

$§ 390-399b (“Public Broadcasting Act”), impose any

such obligations on them. The only material distinction

between commercial and public broadcasters is that the

latter must operate on a noncommercial, nonprofit basis

and, with limited exceptions, may not sell time or accept

advertising. See 47 C.F.R. § 73.621 (1982); 47 U.S.C.

§ 399b (Supp. V 1981).

As the legislative record reveals, Congress assiduously

sought to assure that the funds made available under the

Public Broadcasting Act would not alter the existing sys-

4

tem of broadcast regulation in which local stations,

whether commercial or noncommercial, are independent

and free from federal government control. With the ex-

ception of the editorializing ban at issue here, Congress

imposed no special programming obligations on public

broadcast stations. Rather, within the framework of the

Communications Act, which recognizes that all broad-

casters have certain public responsibilities, Congress pre-

served the essentially private status of noncommercial

broadcasters.

The government’s position also reflects a basic misun-

derstanding of the First Amendment standard applicable

to congressional attempts to limit public broadcasters’

participation in public debate. The ban on editorializing

is a content-based restriction which goes to the heart of

the protections afforded by the First Amendment; accord-

ingly, it can withstand First Amendment scrutiny only

if it is narrowly tailored to serve a compelling govern-

ment interest. The government’s assertion that a lesser

standard applies to First Amendment cases involving

broadcast regulation, and an even lesser standard to pub-

lic broadcasting, is without merit. Gov’t Brief at 28-32.

While some regulation of speech is permitted in the con-

text of the broadcast media that would not be permitted

in other media, those regulations, such as the fairness doc-

trine and persona! attack rule, apply to all broadcasters

and are predicated on the need for government licensing

of scarce spectrum. Columbia Broadcasting System v.

Democratic National Committee, 412 U.S. 94 (1973);

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

That consideration is absent here, and the government

has failed to identify any other special characteristic that

justifies singling out public broadcasters for lesser First

Amendment protection.

Further, the government has not shown that Section

399 serves any important, let alone compelling, govern-

ment interest. To preserve the independence of public

broadcast licensees from federal government control, it is

5

not necessary to suppress their editorial views. The gov-

ernment’s fears that public broadcasters might speak with

a monolithic, government-controlled voice, or be captured

by other narrow interest groups, are unfounded. The

diversity of public broadcast station ownership and fund-

ing, the dependence of the local station on its community

for support, the insulation mechanisms of the Public

Broadcasting Act, and the licensing scheme administered

by the FCC effectively preclude any such abuses.

The government assumes that expression of a private

opinion by a public broadcaster is an evil to be avoided.

However, no valid government purpose is served by shield-

ing the public from public broadcasters’ editorial opin-

ions. Editorializing furthers the robust debate on issues

of public importance and is consistent with public broad-

casting’s mission. Nor is there any danger that the pub-

lic will be misled by a public broadcaster’s open espousal

of a particular view. Editorializing by Broadcast Li-

censees, 13 F.C.C. 1246, 1252 (1949).

Finally, Section 399 is not the least restrictive alterna-

tive for addressing Congress’ concerns about preventing

the use of public broadcast stations for government prop-

agandizing. The least intrusive remedy is simply to for-

bid CPB or the federal government from influencing pub-

lic broadcasters’ programming decisions. The govern-

ment’s paternalistic approach flies in the face of estab-

lished First Amendment principles; more, not less, speech

is the appropriate antidote for undesirable views. Whitney

v. California, 274 U.S. 357, 375-77 (1927) (Brandeis, J.,

concurring).

6

ARGUMENT

L PUBLIC BROADCASTING IS NOT A FEDERAL

ENTERPRISE, BUT A LOCAL ONE FOR WHICH

CONGRESS HAS PROVIDED FINANCIAL ASSIS-

TANCE TO ENHANCE THE LOCAL STATIONS’

SERVICE.

Recognizing that the Section 399 ban on editorializing

cannot be justified under traditional First Amendment

standards, the government argues that it is nonetheless a

constitutional infringement on public broadcasters’ First

Amendment rights because of ‘‘the special character of

noncommercial—‘pu )/ic’—broadcasting ... .” Gov’t Brief

at 5-6. The government exploits the popular connotation

of “public” to argue that noncommercial broadcasters

have a special obligation to their communities that justi-

fies greater restrictions on their First Amendment rights

than would be permitted for “private” commercial broad-

casters.* The government is wrong on both the facts and

the law.

2 Throughout the House hearings on the Public Television Act of

1967, Representative MacDonald protested that public television was

a misnomer precisely because it suggests this misleading dichotomy

between public and private broadcasting. Public Television Act of

1967: Hearings on H.R. 6736 and S. 1160 Before the House Comm.

on Interstate and Foreign Commerce, 90th Cong., lst Sess. 42-43,

106, 130, 154-155, 203, 669 (1967) (hereinafter cited as “House

Hearings’).

Public broadcasting is simp!: another name for noncommercial

educational broadcasting, coined by the Carnegie Commission to

differentiate that part of the noncommercial television station’s pro-

gram schedule which is directed to the general public at home from

that part which is directed to students in the classroom. Public

Television Act of 1967: Hearings on S. 1160 Before the Subcomm.

on Communications of the Senate Comm. on Commerce, 90th Cong.,

Ist Sess. 22-23 (1967) (statement of John Gardner, Secretary of

HEW) (hereinafter cited as “Senate Hearings”). The term quickly

found favor and gained currency because it helped to free noncom-

mercial broadcasting from the stigma of being strictly “instruc-

tional.”

7

A. The Public Broadcasting Act Was Intended To Aid

Local Public Broadcast Stations.

When Congress adopted the Public Broadcasting Act of

1967, the nation already had a system of public broad-

casting that was funded largely through educational ap-

propriations at the state and local levels.* While the Pub-

lic Broadcasting Act added an important national dimen-

sion to public broadcasting’s funding, it did not create a

federal broadcasting network. Nor did it change the in-

dependent character of the existing public broadcast sta-

tions. On the contrary, Congress scrupulously sought to

preserve a broadcasting system in which commercial and

noncommercial broadcasters alike remain autonomous and

free from any federal government control or influence.‘

The Public Broadcasting Act represents Congress’ de-

cision that public broadcasting is an endeavor worthy of

financial support. Concerned, however, that a larger in-

fusion of federal funds might create opportunities for

improper federal government influence over programming,

Congress adopted the recommendations of the Carnegie

Commission on Educational Television® and authorized

the creation of a private, nonprofit corporation to distrib-

ute these funds to the stations and to program producers.

Incorporated in 1968 under the District of Columbia Non-

profit Corporation Act, the Corporation for Public Broad-

casting serves as that independent, nongovernmental cor-

5 The use of broadcast frequencies for noncommercial educational

use dates back to 1919; the FCC reserved spectrum for educational

radio in 1945, and for noncommercial educational television in 1952.

Carnegie Commission on the Future of Public Broadcasting, A Pub-

lic Trust 33 (1979).

4 See Senate Hearings at 9 (statement of Sen. Pastore), 93 (state-

ment of Rosel iyde, Chairman, FCC); 8S. Rep. No. 222, 90th Cong.,

lst Sess. 7-8, 11 (1967); H. Rep. No. 572, 90th Cong., 1st Sess. 18

(1967).

5 Report of the Carnegie Commission on Educational Television,

Public Television—A Program for Action (1967).

8

poration. 47 U.S.C. §396(a)(6) and (7) (Supp. V

1981).

Congress took great pains to insure that CPB would

not interfere with the freedom and autonomy of local

public broadcast stations and, in particular, would not

exercise any control over their programming decisions. It

specifically charged CPB with “carry[ing] out its pur-

poses and functions and engag|ing] in its activities in

ways that will most effectively assure the maximum free-

dom of the public telecommunications entities and systems

from interference with, or control of, program content or

other activities.” 47 U.S.C. $396(g)(1)(D) (Supp. V

1981). And it barred CPB from any operational activity,

such as owning stations, or producing, scheduling and dis-

tributing programs. 47 U.S.C. § 396/g)(3) (Supp. V

1981).

Recently, Congress has also restricted CPB’s discretion

in the allocation of its funds. Under the Public Broad-

casting Amendments Act of 1981, Pub. L. 97-35, 95 Stat.

725, the majority of the funds administered by CPB

(61.9% in the most recent CPB authorization) is passed

through directly to the local stations according to a

statutorily-based formula that takes into account objective

factors such as market size. 47 U.S.C. § 396(k) (3) (A)

and (k)‘(6) (Supp. V 1981). Although CPB has some

discretion, within statutory constraints, to adjust this

formula, it has no discretion to withhold any funds from

stations and no authority to restrict in any way how sta-

tions use these funds. 47 U.S.C. § 396(k) (6) and (7)

(Supp. V 1981).

CPB also administers a program fund from which it

awards grants and contracts for production and acquisi-

tion of public television and radio programs. 47 U.S.C.

§ 396(k) (3) (B) (i) (Supp. V 1981). However, CPB has

no authority to compel the broadcast of any program that

it funds and, in the past, stations have repeatedly chosen

not to air programs funded by CPB.

Thus, while the Public Broadcasting Act provides fed-

eral assistance to the local] stations, it does so in a man-

ner which preserves their complete, unfettered pro-

gramming discretion. This overriding congressional con-

cern for maintaining local public broadcast stations’

autonomy is capsulized in Section 398, which further

prohibits the federal government from using its funds

as a lever to influence the programming activities of CPB

or the stations. 47 U.S.C. § 398 (Supp. V 1981).

B. The Public Broadcasting Act Imposes No Special

Programming Obligations on Public Broadcast

Stations.

The government attempts to twist this statutory

scheme, which Congress designed to insulate local public

broadcast stations, into a scheme intended to foist special

obligations on public broadcasting that are inconsistent

with editorializing. The government relies on various

provisions of the Public Broadcasting Act as evidence of

public broadcasters’ higher obligation. Gov’t Brief at 16-

17 & n.31. But, with the exception of the editorializing

ban challenged here, none of these provisions restricts in

any way the local public broadcaster’s programming

discretion.

For example, the government cites, as evidence of a

special mandate, the requirement of “strict adherence to

objectivity and balance in all programs or series of pro-

grams of a controversial] nature” contained in 47 U.S.C.

§ 396(g)(1)(A) (Supp. V 1981). Gov’t Brief at 17.

This provision, however, does not apply to public broad-

cast stations, but only to CPB and the programs it funds.

And, even as to CPB, this statutory provision serves only

“as a guide to Congressional oversight policy and as a set

of goals to which the Directors of CPB should aspire.”

Accuracy in Media v. FCC, 521 F.2d 288, 297 (D.C. Cir.

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

Nor are the accounting and financial disclosure provi-

sions in the Public Broadcasting Act designed to do more

10

than provide the minimum information necessary to as-

sure Congress that CPB funds are disbursed for the pur-

poses for which they are appropriated.* Similarly, the

purely advisory role of community advisory boards in no

way diminishes the public broadcast station’s edito. ial

independence. The Act specifically provides that “[I]n no

case shal] the board have any authority to exercise any

control over the daily management or operation of the

station.” 47 U.S.C. § 896(k)(9)(C) (Supp. V. 1981).

The equal opportunity employment provisions simply

reflect the national policy against discrimination in em-

ployment. Congress added these provisions in 1978 to

assure that, even though CPB is not a federal agency,

public broadcasters receiving financial] assistance from it

comply with the policies of Title VI.’ In doing so, Con-

gress was careful to preserve local stations’ independence

from CPB and did not give CPB any enforcement

* Congress carefully limited the audit requirements to avoid any

possibility of control. Only CPB, not individual public broadcast

stations, is subject to a GAO audit (47 U.S.C. § 396(1) (3) (B), (C)

& (D)), and even as to CPB, the purpose of such audits “is con-

cerned primarily with financial accountability and improved man-

agement of agency activities—not control.” House Hearings at 24.

The Conference Report emphasizes that “the General Accounting

Office is authorized, but not required, to audit the financial trans-

actions of the Corporation,” and explains that:

Provision for a GAO audit was not originally included in H.R.

6736 because it was felt that such audits carry with them the

power of the Comptroller General to settle and adjust the

books being examined and that this authority would be con-

trary to the desired insulation of the Corporation from Gov-

ernment control. The Committee is also sensitive to the im-

portance of having the Corporation free from Government con-

trol. However, the bill does not provide authority for the set-

tlement of accounts.

H.R. Rep. No. 794, 90th Cong., Ist Sess. 14-15 (1967).

7 See H.R. Rep. No. 1178, 95th Cong., 2d Sess. 38-40 (1978); see

also Senate Hearings at 71 (Memorandum from Alanson Wilcox,

General Counsel, HEW).

ll

powers.* And last, the prohibitions against operating for

profit, selling time, or accepting advertising simply define

what differentiates public broadcasting from its commer-

cial counterpart. They do not impose any special obliga-

tions that would justify the ban on editorializing.

Thus, none of the provisions cited by the government

supports its contention that the Public Broadcasting Act

created any special, inextricably linked set of obligations

that hinge upon the editorializing ban. Section 399 is the

only provision affecting the programming discretion of

public broadcasters. In all other respects, Congress was

sensitive to the First Amendment interests at stake and

sought to achieve its objectives without intruding on the

public broadcaster’s journalistic discretion.’ Ironically, the

effect of upholding the constitutionality of Section 399

would be to sanction the very federal control that the gov-

ernment argues the editorializing ban was intended to

prevent.

C. State and Local Government Participation in Public

Broadcasting Does Not Make It a Federal Govern-

ment Enterprise.

The government, in an effort to create an impression

of greater federal involvement in public broadcasting,

blurs the distinction between federal, as opposed to state or

5 Enforcement of the equal opportunity employment provisions of

the Public Broadcasting Act is committed to HEW, now the Depart-

ment of Health and Human Services. 47 U.S.C. § 598(b) (2)-(5)

(Supp. V 1981).

* The government erroneously suggests that Section 397(9), which

formerly defined educational television and radio programs as “pri-

marily designed for educationai or cultural purposes” somehow re-

stricts the types of programs CPB may fund or public broadcast

stations may air. Gov't Brief at 16. The government’s argument is

predicated on an earlier definition that is no longer applicable, and

even at the time that definition applied, it was at best applicable

only to CPB’s activities and not to public broadcast stations. See

Pub. L. No. 90-129, § 201, 81 Stat. 371 (1967). In all events, the

definitional language is hortatory and has never been construed as

limiting public broadcasters’ programming discretion.

12

local, government funding and ownership of public broad-

cast stations."° There is no basis, however, for equating the

participation of state and local entities with that of the

federal government. From the beginning, when the FCC

reserved frequencies for noncommercial educational use,

it was contemplated that many public broadcast facilities

would be licensed to and financed by state and local gov-

ernment entities. Sixth Report and Order on Television

Allocations, 40 F.C.C. 148, 164-167 (1952); id. at 592

(separate opinion of Commissioner Hennock). In 1962,

when Congress first provided funding for public broad-

casting, it was aware of this state and loca] government

involvement and sought to protect these licensees from

federal government control or influence."' In 1967, it

was equally clear that Congress did not intend the Public

Broadcasting Act to restrain in any way the control of

state and local licensees over their own public broadcast

facilities..* Thus, the government’s attempt to use this

1° Public broadcast licensees fall into four categories: community-

based nonprofit educational corporations; state school board and ed-

ucational broadcasting authorities; local school districts; and col-

leges and universities. As of February 1983, there were 159 public

television licensees, of which 69 were nonprofit community corpora-

tions, 23 were state entities, 15 were loca] authorities, and 52 were

institutions of higher education. These 159 licensees operated 300

transmitting stations, broken down by licensee type as follows:

nonprofit community corporations (89), state entities (118); local

authorities (17); and institutions of higher education (76).

11 See, e.g., House debate on H.R. 132, 108 Cong. Rec. 3532 (Mar.

7, 1962) (statement of Rep. Walter), 3536 (statement of Rep.

Roberts), 3539 (statement of Rep. Hemphill), 3548 (statement of

Rep. Cramer), 3549 (statement of Rep. Barry).

12 See, e.g., House Hearings at 417 (statement of Rep. Carter) ;

see also legislative history cited at n.4 supra. 47 U.S.C. § 398(a)

(Supp. V 1981), which prohibits federal intervention in local sta-

tion operations, was originally enacted as part of the Educational

Television Broadcasting Facilities Act of 1962, Pub. L. No. 87-447,

76 Stat. 64, which Congress viewed as designed to aid state and

local educational authorities. In 1967, when state involvement in

public broadcasting was equally clear, Congress strengthened Sec-

tion 398 to provide greater protection for local licensees.

13

state and local involvement to justify Section 399 is in-

consistent with the congressional objectives underlying

federal support for public broadcasters.

In any event, this state and local involvement is ir-

relevant to the constitutionality of Section 399, which is

triggered only by receipt of CPB funds. That state and

local governments provide support for public broadcast

stations does not enlarge the federa! government’s right

to regulate their programming. As the government recog-

nizes, “Congress adhered to the tradition of not creating

federally owned stations and chose instead to furnish

assistance to noncommercial stations owned and con-

trolled by others.” Gov’t Brief at 16.%

The government ignores this distinction and mislead-

ingly states that “[government]” owns “the majority of

public stations.” Gov’t Brief at 7. While it is true that

a substantial number of public broadcast licensees are

state or local government entities, the federal govern-

ment does not own a single public broadcast station.

Similarly, the government’s claim that “[{g]overnment”

supplies “more than 60% of the public broadcasting in-

come” (Gov’t Brief at 7) improperly merges federal,

state, and local government funding sources. In fiscal year

1982, the most recent year for which figures are available

(and also the year in which CPB funding reached its

highest point prior to the recent cutbacks), CPB ac-

138 The government’s attempt to merge the state and local role with

that of the federal] government, characterizing it all as “governmer-

tal,” loses sight of the First Amendment interest in preserving tae

autonomy of state and local licensees. For the reasons set forth by

Justice Stewart in Columbia Broadcasting System v. Dems-crati Na-

tional Committee, 412 U.S. 94, 189-141 (1973), to treat public broad-

casters licensed to state entities as synonymous with federal gov-

ernment control would be to strip them of any First Amendment

rights vis-a-vis the federal government. This result would be inimi-

cal to public broadcasters’ own First Amendment rights and wholly

at odds with the independent broadcasting system established under

the Communications Act.

14 Indeed, the federal government is statutorily barred from such

ownership. 47 U.S.C. § 305 (Supp. V 1981).

14

counted for only 20.5% of the funding for public broad-

casting.** Moreover, in that same fiscal year, only 12.4%

of the $135 million in nationally distributed public tele

vision programming was funded in whole or in part by

federal money.** Even this percentage is misleading be-

cause a significant part of this money came from agen-

cies, such as the Department of Education, whose con-

tributions do not trigger the Section 399 prohibition.

The government’s attempt to cast public broadcasting

in a special “governmental” role exaggerates the impor-

tance of the federal contribution upon which Section 399

is predicated. While important, this contribution is not

public broadcasting’s svle support. Other entities, both

public and private, play an equally important financial

role.*7 Moreover, as far as the potential for government

1% The remaining funds came from public broadcasting member-

ship fundraising (19.1%), state government (18.9%), state col-

leges and universities (10.7%), businesses (10.7%), local govern-

ments (5.1%), federal grants and contracts (3.1%); foundations

(2.6%), and all other sources (9.39%). Contributions from private

sources accounted for a total of 41.7% of public broadcastings’s FY

1982 revenues; tax-based sources contributed 58.3%. CPB, “Public

Broadcasting Income, Fisca] Year 1982 (Preliminary).”

16 These figures only reflect the value of programming distributed

nationally by PBS. If the cost of loca] and regional programming

were also taken into account, the percentage attributable to federal

funding would be even lower.

17 In 1976, almost ten years after passage of the Public Broadcast-

ing Act, the Senate Report on a bill to extend the Educational Broad-

cast Facilities Program stated:

It is worth emphasizing that the tota) Federa) investment in

the facilities program to date—appreximately $106 million—

has been less than 10 percent of the gross expenditure from

public and private sources, and has stimulated an investment in

excess of $1 billion. School systems, universities, corporations,

foundations, and other public and private organizations, as well

as individual citizens, have thus provided the matching coopera-

tion and contributions which have been essential for the crea-

tion and development of loca] public broadcasting stations across

the nation.

S. Rep. No. 813, 94th Cong., 2d Sess. 4 (1976).

15

control is concerned, it is inaccurate to treat disparate

federal, state, and local funding sources as one. Each is

motivated by different interests, and they do not act in

concert.?®

II. THE EDITORIALIZING BAN IS AN UNCONSTI-

TUTIONAL RESTRICTION ON THE CORE FIRST

AMENDMENT RIGHT OF PUBLIC BROADCAST-

ERS TO PARTICIPATE IN THE DEBATE ON IS-

SUES OF PUBLIC IMPORTANCE.

A. Section 399 Is a Content-Based Regulation Which

Can Be Justified Only Under the Strictest First

Amendment Standards.

The government does not claim that any compelling

government interest justifies the editoriai.zing ban, but

only that it furthers “important” government interests.

Gov’t Brief at 34, 35, 39. The government justifies this

less stringent standard on the ground that broadcasting

is not entitled to full First Amendment protection and

that Section 399 is a content-neutral regulation. Gov’t

Brief at 8, 28-32.

While it is true that this Court has allowed certain

limited restrictions on the free speech rights of broad-

18In apparent recognition of the lesser state and local govern-

mental involvement with community licensees, many of whom are

major national program suppliers for public television, the govern-

ment argues that the tax exempt status of these licensees is evi-

dence of government entwinement. Gov’t Brief at 20. However,

this in no way distinguishes public broadcast stations from any

other tax exempt entity, including many commercial broadcast sta-

tions, that must comply with the Internal Revenue Code provisions

under which it qualifies for its exemption. Nor is it relevant to

whether, consistent with the First Amendment, Congress can im-

pose greater restrictions on the speech of public broadcasters. The

limitations Congress has imposed on the activities it will subsidize

through tax exemptions are properly reflected in the Internal Reve-

nue Code and enforced by the Internal Revenue Service, not the

Federal Communications Commission. Cf. Community Television of

Southern California v. Gottfried, —— U.S. ——, 108 S.Ct. 885

(1983).

16

casters that would not be permitted in other media, in

each case, the limitation was justified by some special

characteristic of the broadcast media. See,’e.g., Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The gov-

ernment argues that the scarcity and unique power of

broadcast frequencies, which have justified other limita-

tions on broadcasters’ First Amendment rights, such as

the fairness doctrine and personal attack rules, also

justify the ban on editorializing. Gov’t Brief at 29-32.

The government’s arguinent is flawed on two counts.

First, the regulations the government relies upon were

designed to insure that broadcasters fulfill the public in-

terest obligation they assumed when they received their

licenses. Those regulations are intended to increase, not

restrict, the diversity of views available to the public.

The government cannot point to any other regulation

designed to censor broadcasters’ editorial judgments; and

no other regulation precludes broadcasters from con-

tributing to the debate on issues of public importance.”

Second, none of those regulations singles out public

broadcasters for special] treatment. To the extent that

searcity is the rationale for limiting broadcasters’ First

Amendment rights, it applies with equal] force to com-

mercial broadcasters. The FCC has exactly the same

regulatory power over both commercial and noncommer-

cial licensees.*” Noncommercial educational broadcasters

are subject to the same technical and programming rules

19 The FCC’s oversight power to consider a licensee’s use of in-

decent language, FCC v. Pacifica Foundation, 438 U.S. 726 (1978),

does not have the same preclusive effect on First Amendment rights

as the ban at issue here. Pacijica requires licensees to be sensitive

to community standards in choosing language to express their views,

but it does not bar expression of those views. 438 U.S. at 743 n.18.

2 House Hearings at 205 (statement of Rosei Hyde, Chairman,

FCC). See Community Television of Southern California v. Gott-

fried, US. , 108 S.Ct. 885 (1983) (FCC to review public

broadcasters’ service to the handicapped under the same standard

applicable to commercial broadcasters).

17

(fairness doctrine, personal attack and equal time! as

commercial broadcasters. And, prior to 1967, both com-

mercial and noncommercial broadcasters were permitted

to editorialize. The government has not identified, nor

can it, any special characteristic of the broadcast medium

that justifies the lesser First Amendment protection for

public broadcasters accorded by Section 399.*"

Also without merit is the government’s assertion that

“Section 399 is a content-neutral regulation designed to

*! The only unique characteristic the government has identified is

the fact that public broadcasters receive CPB funds. The govern-

ment relies on this assistance to argue that Section 399 is a valid

exercise of the Spending Power, merely restricting the activities

Congress has chosen to fund. This argument mischaracterizes the

impact of Section 399. It is not a limit on the manner in which

public broadcasters may use CPB funds, but a condition imposed on

their acceptance of those funds. Section 399 prohibits public broad-

casters not just from using CPB funds to present editorials, but

from editorializing if they receive any assistance from CPB at all.

Under the government’s rationale, if a local station receives from

CPB so much as one dollar appropriated by Congress, and uses that

dollar for general operating expenses, then Congress is free to at-

tach conditions to the use of that dollar that restrict the broad-

caster’s programming discretion in all of its broadcast activities.

The government's argument opens the door wide to government

censorship under the guise of simple restrictions on what the gov-

ernment chooses to subsidize rather than infringements on First

Amendment rights.

Accordingly, the editorializing ban is distinguishable from the

restriction involved in Regan v. Tazation With Representation,

USS. , 108 S.Ct. 1997 (1983), where the federal subsidy in

fact funded the proscribed activity, and where Congress provided

an alternative in §501(c)(4) of the Internal Revenue Code that

would permit plaintiff to lobby. No such alternative is available to

public broadcasters. Consequently, if Section 399 is to pass con-

stitutional muster, it must meet the strict scrutiny required for any

restriction on First Amendment rights. See, e.g., Speiser v. Randall,

857 U.S. 513 (1958). As we demonstrate, and as the district court

held, it cannot pass that test. Cf. Community-Service Broadcasting

v. FCC, 593 F.2d 1102, 1110 (D.C. Cir. 1978) (en banc).

18

assure that public funds do not go to subsidize private

political and ideological activity.” Gov’t Brief at 8. On its

face, Section 399 discriminates between different types of

expression and bans only one: editorializing. The at-

tribute that brings programming within the ban is

strictly its content, namely whether it expresses the opin-

ion of the station management.” It is immaterial that

editorializing encompasses a range of viewpoints. A regu-

lation that restricts particular kinds of speech is content-

based.**

Even if, as the government suggests, the neutral pur-

pose of Section 399 were to prevent public funds from

subsidizing private political and ideological activity, it

fails to achieve this result.** The government acknowl-

edges that public broadcasters are free to present the pri-

vate political and ideological views of anyone other than

the station management. Gov’t Brief at 8, 41. There-

fore, to the extent that public funds support public broad-

casting, they subsidize the private political and ideol-

ogical views of every guest interviewed on a public af-

fairs program, every producer of a documentary, and

22 In fact, the legislative history indicates that members of Con-

gress were chiefly concerned that the content of public broadcast

editorials might be unfavorable to them personally. See 113 Cong.

Rec. 26,388, 26,391, 26,399 (1967).

23 See First National Bank of Boston v. Bellotti, 485 U.S. 765

(1978) ; Carey v. Brown, 447 U.S. 455, 462 n.6 (1980) ; Linmark As-

sociates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977) ; Police

Department of Chicago v. Mosley, 408 U.S. 92 (1972) ; Community-

Service Broadcasting v. FCC, 593 F.2d 1102, 1111-1112 (D.C. Cir.

1978).

*% The government’s statement that it would be fundamentally

wrong to use tax money to support private views (Gov't Brief at

40) misconstrues the First Amendment interest involved. As this

Court has recognized, “every appropriation made by Congress uses

public money in a manner to which some taxpayers object”; the

First Amendment does not preclude the use of public funds to en-

hance, rather than suppress, private expression. Buckley v. Valeo,

424 U.S. 1, 90-93 (1976).

19

every citizen who delivers an editorial. In short, every

private view but one—that of the station management—

is permitted to be expressed.

B. Section 399 Serves No Compelling Government

Interest.

Section 399 is a content-based regulation that goes to

the heart of the free speech rights protected by the First

Amendment. To survive First Amendment scrutiny, it

must serve a compelling government interest and be nar-

rowly tailored to that end. See Consolidated Edison Co. v.

Public Service Commission, 447 U.S. 530, 585 (1980);

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

776 (1978). The government has not advanced any inter-

est that is sufficiently compelling to justify the restriction

that Section 399 imposes on public broadcasters’ exercise

of their First Amendment rights. Indeed, the government

has not even shown that Section 399 is narrowly tailored

to achieve any valid government purpose.

1. The Editorializing Ban Is Not Necessary To

Prevent Federal Government Control of Public

Broadcasters’ Programming.

The government claims that the editorializing ban is

necessary to forestall any attempt by the federal govern-

ment to use the power of the purse to create a govern-

ment propaganda machine. This fear that public broad-

casters could ever speak with a monolithic, government-

controlled voice is unfounded. First, the safeguards Con-

gress built into the Public Broadcasting Act serve to in-

sulate the stations ‘rom such control. And nothing could

be plainer than the injunction in 47 U.S.C. § 398 (Supp.

V 1981) against federal control or interference in public

broadcasting.

Second, each public broadcast licensee operates inde-

pendently of other public broadcast licensees and is man-

aged by individuals who are answerable to different en-

tities, none of which speaks with a common voice. Each

20

exercises absolute programming discretion and bears sole

responsibility for the material it broadcasts. During the

Senate debate on the Public Broadcasting Act, concerns

about a possible federal government “takeover” of pro-

gramming were raised and quickly laid to rest:

Most significant of the means to prevent any ‘take-

over’ is that each local TV station is itself a com-

plete locally controlled entity. Stations are licensed

to universities, school systems and educational or-

ganizations, themselves responsible to local legisla-

tures or citizens boards. Their charters and their

Federal Communications Commission licenses forbid

Federal program censorship of any sort.

Senate Hearings at 20 (statement of Sen. Pepper).

Third, contrary to the government’s contention that

“ public’ television stations may be less answerable to the

public than commercial stations” (Gov't Brief at 40),

public broadcasters are at least as, if not more, account-

able. Every public broadcast licensee, regardless of its

ownership, is ultimately responsible to an entity that rep-

resents the public: state and local government licensees

are responsible to the citizens through their government;

college licensees are responsible to their educational! insti-

tutions and the coinmunities those institutions serve; and

community licensees answer to boards drawn from, and

representative of, the entire community. Station manage-

ment and boards have a built-in sensitivity to their com-

munity’s reaction to the political overtones in their

programming.*

Public broadcasters are also directly dependent on the

public for contributions, volunteer help, corporate under-

writing, donations of goods and services, contributions

from local businesses, and state and local funding. This

2% Senate Hearings at 55 (statement of John Gardiner, Secretary

of HEW); House Hearings at 161-162 (statement of Mr. Henry),

270 (statement of Mr. Case), 481 (statement of Mr. Schenkkan),

514 (statement of William G. Harvey), 516 (statement of Mr.

McBride).

21

support is critical to the operation of their stations.

Therefore, were a public broadcaster to embark on an

editorial course that the audience opposed, the problem

would be self-correcting.

Finally, the government’s fear that public broadcast

stations might be captured by a narrow interest group is

irrelevant to the justification for Section 399, which is

tied to CPB funding. In any event, this potential prob-

lem existed long before passage of the 1967 Act, and Con-

gress has enacted appropriate safeguards in the Commu-

nications Act to deal with it. See 108 Cong. Rec. 3553

(Mar. 7, 1962) (statement of Rep. Moss). The existing

system of broadcaster accountability administered by the

FCC precludes the federal government, or any narrow

interest group, from exercising undue influence on public

broadcasters’ programming. In addition, regulations such

as the fairness doctrine assure that the public will receive

access to a diversity of views on issues of public impor-

tance. See Accuracy in Media, Inc. v. FCC, 521 F.2d 288,

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

2. No Valid Government Purpose Is Served by

Shielding the Public from Public Broadcasters’

Editorializing.

Underlying the government’s justification for Section

399 is the assumption that expression of private editorial

opinion by a public broadcaster is an evil to be avoided.

The government’s position runs directly counter to estab-

lished First Amendment principles, which recognize the

valuable community service editorials provide. See Mills

v. Alabama, 384 U.S. 214 (1966). The FCC has under-

scored the importance of licensee editorializing by iden-

tifying this as one of fourteen necessary program ele

ments in a station’s service. Report and Statement of

Policy Re: Commission En Bane Programming Inquiry,

44 F.C.C. 2303 (1960) .*

26 Cf. RKO General, Inc., 44 F.C.C.2d 149, 219 (1969) (“The pol-

icy of not presenting editorials runs squarely athwart Commission

22

Public broadcaster editorializing is not the source of

the evils the government fears. First, there is little dan-

ger that the public would be misled or duped if editorial-

izing were permitted. An editorial is unabashedly and

openly a statement of opinion, and everyone recognizes it

as such. As the FCC has recognized, “(clertainly the

public has less to fear from the open partisan than from

the covert propagandist.” Editorializing by Broadcast

Licensees, 13 F.C.C. 1246, 1254 (1949).

Second, Section 399 does nothing to eliminate biased

coverage of public affairs, and several congressmen made

this very point:

This Corporation could be a propaganda monster, al-

though we have said there shall be no editorializing.

Let us be realistic. An editorial is not very persua-

sive or influential. Let them go ahead and editorial-

ize. Give me the right to control program content,

and others can editorialize all they want to, but I

will influence the thinking of the American public

more with the programs or with people I have ap-

pearing on the programs.

The American public knows editorials are subjective,

but they believe regular programs are objective.”

policy”); Evening Star Broadcasting Co., 27 F.C.C.2d 316, 332

(1971) (“we consider noteworthy the fact that the licensee has

regularly editorialized”); WHDH, Inc., 16 F.C.C.2d 1, 10 (1969),

reh’g denied, 17 F.C.C.2d 856, 859 (1969) (slight demerit assessed

against applicant to be owned by tax-exempt foundation which would

restrict its ability to editorialize).

27113 Cong. Rec. 26,392, 26,405 (Sept. 21, 1967) (statement of

Rep. Watson). See 113 Cong. Rec. 26,408 (Sept. 21, 1967) (state

ment of Rep. Brown).

The government erroneously asserts that Section 399 precludes

the broadcast of “federal government propaganda” (Gov't Brief at

22 n.46). However, it is only licensee editorializing, not general pro-

gramming, that falls within the ban. If federal funding were indeed

a coercive lever, it could be used to compel the broadcast of the very

propaganda the government thinks Section 399 prohibits.

23

These issues were among those considered by the FCC

when it reversed its earlier ban and decided to allow

broadcast editorials. The Commission concluded that

fears similar to those raised by the government:

are largely misdirected [and] stem from a confusion

of the question of overt advocacy in the name of the

licensee, with the broader issue of insuring that the

station’s broadcasts devoted to the consideration of

public issues will provide the listening public with a

fair and balanced presentation of differing viewpoints

on such issues .... Assurance of fairness must in

the final analysis be achieved, not by the exclusion of

particular views because of the source of the views,

or the forcefulness with which the view is expressed,

but by making the microphone available for the pre-

sentation of contrary views withovt deliberate re-

strictions designed to impede equally forceful pre-

sentation.

Editorializing by Broadcast Licensees, 13 F.C.C. 1246,

1253 (1949). By taking the opposite approach and ban-

ning editorializing, Congress has deprived the public of

a valuable community service and restricted the one form

of expression in which bias or opinion is openly

acknowledged.

The government is also wrong when it asserts that

editorializing is inconsistent with public broadcasting’s

mission. Gov’t Brief at 33-35. Under the First Amend-

ment, public broadcasters are entitled to ihe same edi-

torial rights as other journalists, and, prior to 1967, they

enjoyed those rights. During this period, public broad-

casters received federal funds for systems construction,

equipment, programming, training, research, and plan-

ning under programs administered by the Department

of Health, Education, and Welfare. House Hearings at

23-24, 84-87. In authorizing those funds, Congress was

sensitive to the possibility of federal government pressure

and committed to preserving the local public broadcast li-

censee’s complete and unfettered control over program-

24

ming.** Although none of the legislation authorizing these

HEW programs prohibited editorializing by public broad-

casters, there were no problems with improper federal

government influence.*

The government’s statement that public broadcasting is

obligated to “serve all” and that this is inconsistent with

expression of private views stands the First Amendment

on its head. Gov’t Brief at 33. bor it is precisely when

government begins to define permissible programming

that government control and influence over program con-

tent become a reality rather than a distant fear. To the

extent that serving diverse audiences is one of public

broadeasting’s goals, it does not require bland, noncon-

troversial programming that reflects a consensus view

rather than a private one. Rather, “service to all” is

achieved by providing a range of private views to ad-

dress controversial issues from diverse perspectives. And

it is clear that Congress intended public broadcasters to

participate fully in the debate on issues of public im-

portance: “[p]articularly in the area of public affairs

. .» noncommercial broadcasting is uniquely fitted to offer

in-depth coverage and analysis which will lead to a better

informed and enlightened public.” S. Rep. No. 222, 90th

Cong., lst Sess. 7 (1967).

The editorializing ban prevents public broadcasters

from addressing important local issues in the most effec-

tive manner. For example, a Denver newspaper recently

deleted the program listings for a public television sta-

tion from its daily grid. The station wanted vo go on the

air and encourage viewers to write protest letters to the

newspaper, but felt constrained by Section 399. Another

28 See House debate on H.R. 132 at n.11 supra.

2° As Congressman Springer observed in the House debate on the

Public Broadcasting Act, “. . . anyone who has had any experience

in the past six years knows there has not been the slightest control

of any kind exercised by the Federal Government in making grants.”

118 Cong. Rec. 26,407 (Sept. 21, 1967).

25

example involves public television’s efforts to use a pro-

gram scheduled for this fall, The Chemical People, as

the focus for community outreach efforts to deal with

drug and alcohol abuse. This is precisely the kind of ef-

fort that could be enhanced by allowing stations to edi-

torialize about these problenis.

The government stresses the dangers of allowing pub-

lic broadcasters to become embroiled in “political” or

“partisan” issues (Gov’t Brief at 34), but that part of

Section 399 which bars noncommercial educational broad-

casting stations from supporting or opposing any candi-

date for politica! office is not challenged here. At issue is

the right of public broadcasters to contribute to the pub-

lie debate by providing an important perspective on the

broad range of problems that arise in every community:

fair housing, equal employment opportunity, environmen-

tal concerns, public and private transportation, police

methods and procedures, consumer protection, public ed-

ucation, local and state government, city and area plan-

ning bodies, etc.

It does not suffice that public broadcasters can treat

these issues in non-editorial formats. In many cases, re-

stricting the broadcaster’s choice of format silences his

voice. Some issues do not lend themselves to longer treat-

ment than an editorial. Others are time sensitive, and

by the time the broadcaster could develop . program to

deal with them, they would no louger be relevant. The

fact that some public broadcasters may prefer not to ad-

dress such issues through editorials is beside the point.

Other public broadcasters will choose to editorialize.” The

crucia] First Amendment issue is whether the decision to

editorialize is left to the public broadcaster or dictated

by the federal government.

In the 1979 study cited by the government, more than half of

the responding station managers expressed willingness to editorial-

ize. Wollert & Haney, Editorializing and Fundraising: Does It

Miz? 7% Pub. Telecommunications Rev., No. 5, at 35 (Sept./Oct.

1979).

26

C. The Editorializing Ban Is Not the Least Restrictive

Alternative for Addressing Concerns about Gov-

ernment Propaganda.

The government has not only failed to identify any im-

portant, never mind compelling, interest to support the

editorializing ban, but has also failed to demonstrate that

Section 399 is narrowly tailored to achieve the govern-

ment’s ends. To the extent that the government seeks to

prevent the use of public broadcast stations for govern-

ment propagandizing, the least restrictive alternative

would be to stem the problem at its source and prohibit

the federal government or CPB from attempting to in-

fluence public broadcasters’ programming. This is the ap-

proach adopted in Section 398 of the Public Broadcasting

Act, which bars “any department, agency, officer, or em-

ployee of the United States” from using the provision of

federal financial assistance ‘“‘to exercise any direction, su-

pervision, or control over public telecommunications, or

over the Corporation or any of its grantees or contractors

..’ 47 U.S.C. § 898(a) (Supp. V 1981).™

To the extent that the government fears editorializing

could result in misuse of a public broadcasting facility,

those fears are based on a paternalistic attitude at odds

with basic First Amendment principles. As this Court

noted when it struck down a ban on advertising the

prices of prescription drugs:

There is... an alternative to this highly paternalis-

tic approach. That alternative is to assume that this

information is not in itself harmful, that people will

perceive their own best interests if only they are well

enough informed, and that the best means to tha.

end is to open the channels of communication rather

than to close them.

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748, 770 (1976). Thus, the

*! The only exception to this bar is in the area of equal oppor-

tunity employment and there it is clear that programming remains

insulated. 47 U.S.C. § 398(c) (Supp. V 1988).

27

least restrictive alternative, and preferred First Amend-

ment remedy, is not to silence the public broadcaster, but

to insure that other viewpoints are afforded an opportu-

nity to be heard. See Whitney v. California, 274 USS.

357, 375-77 (1927) (Brandeis, J., concurring). This ap-

proach, reflected in the fairness doctrine and the FCC’s

editorializing rules, not only protects the First Amend-

ment interests of broadcasters, but also furthers the First

Amendment interest of the public in suitable access to di-

verse ideas on important issues.

CONCLUSION

For the foregoing reasons, Amici Curiae urge this

Court to affirm the decision below and vindicate the First

Amendment rights of public broadcasters and the listen-

ing and viewing public.

Respectfully submitted,

LAWRENCE A. HORN

General Counsel

NANCY H. HENDRY *

Deputy General Counsel

BARBARA S. WELLBERY

Deputy General Counsel

475 L’Enfant Plaza West, S.W.

Washington, D.C. 20024

(202) 488-5053

Attorneys for Amicus Curiae,

Public Broadcasting Service

THEODORE D. FRANK

ARENT, Fox, KINTNER, PLOTKIN

& KAHN

Washington Square

1050 Connecticut Avenue, N.W.

Washington, D.C. 29036-5339

(202) 857-6016

Attorney for Amicus Curiae,

National Association of

* Counsel of Record Public Television Stations

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