Appendix — Muir v. Alabama Educational Television Commission

Donald E. MUIR, H. Jeff Buttram, and

O. Navarro Faircloth,

Plaintiffs-Appellants,

Vv.

ALABAMA EDUCATIONAL TELEVISION

COMMISSION: Jacob Walker,

etc., et al., Defendants-Appellees.

Gertrude BARNSTONE and Harvey

Malyn, Plaintiffs-Appellees,

Vv.

The UNIVERISTY OF HOUSTON,

KUHT-TV, et al.,

Defendants~-Appellants.

Nos. 80-7546, 81-2011.

United States Court of Appeals,

Fifth Circuit.*

Oct. 15, 1982.

Before BROWN, CHARLES CLARK, RONEY,

GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE,

KRAVITCH, FRANK M. JOHNSON, GARZA**,

HENDERSON, REAVLEY, POLITZ, HATCHETT,

*Former Fifth Circuit case, Section 9(1)

of Public Law 96-452 -- October 14, 1980.

** Judge Garza participated in the hearing

but took senior status on July 7, 1982

and is no longer qualified to participate

in the en banc decision.

Judges Jolly and Higginbotham joined the

(cont'd on following page)

001

ANDERSON, RANDALL, TATE, SAME D. JOHNSON,

THOMAS A. CLARK, WILLIAMS and GARWOOD,

Circuit Judges. ***

JAMES C. HILL, Circuit Judge:

I. Introduction

The two appeals before this Court on

consolidated rehearing raise the important

and novel question of whether individual

viewers of public television stations,

licensed by the Federal Communications

Commission to state instrumentalities,

have a First Amendment right to compel

the licensees to broadcast a previously

scheduled program which the licensees

have decided to cancel. For the reasons

stated below we find that the viewers do

not have such a right.

(cont'd from preceding page)

Court after submission and oral argument

but do not choose to participate.

*** John C. Godbold, Chief Judge, did not

participate in the consideration or deci-

sion of this case.

002

Both cases before us concern the

decisions of the licensees not to broad-

cast the program "Death of a Princess."

In Muir v. Alabama Educational Television

Commission, 656 F.2d 1012 (N.D. Ala.

1980), the District Court for the Northern

District of Alabama denied the plaintiff

viewers’ motion for a preliminary injunc-

tion requiring the defendant licensee,

Alabama Educational Television Commission

(AETC), to broadcast the program. The

district court found: (1) that the like-

lihood of success on the merits criterion

for an injunction had not been shown;

(2) that the First Amendment protects the

right of broadcasters, private and public,

to make programming decisions free of

interference; and (3) that viewers have

no First Amendment right of access to

the Alabama educational television net-

work sufficient to compel the showing of

"Death of a Princess." The court granted

003

summary judgment for AETC.

In Barnstone v. University of Houston,

514 F. Supp. 670 (S.D. Tex. 1980), the

District Court for the Southern District

of Texas reached a different conclusion

and granted the injunction requested by

the plaintiff viewers and ordered the

defendant licensee, University of Houston,

to broadcast the program. The court held

that KUHT-TV, the television station op-

erated by the university, was a public

forum and as such it could not deny ac-

cess to speakers--here, the producers

of "Death of a Princess"--who wished

to be heard in the public forum, unless

its reasons for doing so could withstand

the rigorous scrutiny to which "prior

restraints" are traditionally subjected.

On appeal a panel of this court

affirmed the District Court's decision

004

in Muix.2

The panel held that the plain-

tiffs had no constitutional right to com-

pel the broadcast of "Death of a Prin-

cess," and that AETC's refusal to broad-

cast the program was a legitimate exer-

cise of its statutory authority as a

broadcast licensee and was protected by

the First Amendment. In Barnstone

another panel of this court found that

the decision in Muir required that the

panel reverse the judgment of the

District Court for the Southern District

of Texas and dissolve the injunctive

relief which had been granted the

plaintiffs.”

We directed that both cases be

consolidated and reheard en banc. We

now affirm the judgment of the District

1. Muir v. Alabama Educational Televi-

sion Commission, 656 F.2d L012 (5th Cir.

Tosly.

2. Barnstone v. va vereat of Houston,

660 . r. .

005

Court for the Northern District of

Alabama in Muir and reverse the judg-

ment of the District Court for the

Southern District of Texas in Barnstone,

II. Factual Background

The Muir case arose when AETC de-

cided not to broadcast "Death of a

Princess," which had been scheduled for

broadcast on May 12, 1980 at 8:00 P.M.

The program, one of thirteen in the

series "World," is a dramatization of

the investigation by the program's

director, producer and co-author into

the motivations and circumstances which

were said to have led to the July 1977

execution for adultery of a Saudi

Arabian princess and her commoner

lover.

3. “Death of a Princess" was produced

jointly by WGBH Educational Foundation,

licensee of public television station

WGBH-TV in Boston, Massachusetts, and ATV

Network of London, England.

006

AETC, organized under Ala. Code

§ 16-7-1, is responsible for “making

the benefits of educational television

available to and promoting its use by

inhabitants of Alabama" and has “the

duty of controlling and supervising the

use of channels reserved by the Federal

Communications Commission to Alabama

for non-commercial, educational use."

Ala.Code § 16-7-5. AETC operates a

statewide network of nine noncommercial,

educational television stations licensed

by the Federal Communications Commission

under the Communications Act of 1934

(47 U.S.C. §§ 151, et seq.). AETC is

funded through state legislative appro-

priations from the Special Education

Trust Fund, matching federal grants

through the Corporation for Public

Broadcasting (CPB), and private contri-

butions.

007

Ls

AETC is a member of the Public Broad-

casting Service (PBS), a non-profit corp-

oration distributing public, non-commer-

cial television programs to its members

by satellite. AETC is also a member of

the Station Program Cooperative (SPC),

a program funding and acquisition mech-

anism operated by PBS. Membership in

SPC entitles licensees to participate

in the selection and funding of national

public television programs distributed

by PBS. Only those licensees who con-

tribute to a program's cost have a right

to broadcast or not to broadcast the

program. *

4. PBS's "Station Users Agreement" re-

posing in licensees the absolute right

to select programs they will broadcast

and to determine when they will broad-

cast them accords with the FCC regula-

tion contained in 47 C.F.R. § 73.658 (e)

which requires that every broadcaster

reserve the right to reject any program

offered to it. The FCC requires that

(footnote continued on following page)

008

PBS's acquisition of the program

series "World" was funded by 144 public

television licensees, including AETC,

through the SPC. During the week prior

to the scheduled broadcast of "Death of

a Princess" AETC received numerous com-

munications from Alabama residents

protesting the showing of the program,

The protests expressed fear for the

personal safety and well-being of Alabama

citizens working in the Middle East if

the program was shown. On May 10 AETC

announced its decision not to broadcast

the film as scheduled.

Appellants, Muir, Buttram and

Faircloth, residents of Alabama who had

planned to watch "Death of a Princess,"

brought this action on May 12, 1980

(footnote continued from preceding page)

every broadcaster consistently main-

tain independent control over selection

of programs as a condition to retention

of a license. Cosmopolitan Broaceasting:

59 F.C.C.2d 558 TISTEy See p. 1040 infra.

009

under the First and Fourteenth Amendments

and 42 U.S.C. § 1983, seeking to compel

AETC to broadcast the film, and prelim-

inary and permanent injunctions against

AETC's making “political” decisions on

programming.

The Barnstone case arose in a fact-

ual context similar to that of Muir.

The University of Houston is a co-educa-

tional institution of higher hearning

funded and operated by the State of

Texas. See Tex. Educ. Code Ann. §§ 111.01

et seg. The university funds and oper~

ates KUHT-TV, a public television sta-

tion licensed to the university by the

F.C.C. As a member of the SPC, KUHT-TV

contributed to the funding of the "World"

program series. KUHT-TV scheduled

"Death of a Princess" for broadcast-on

May 12, 1980 at 8:00 P.M.

On May 1, 1980 KUHT-TV announced

that it had decided not to broadcast

010

the program. This decision was made by

Dr. Patrick J. Nicholson, University of

Houston Vice-President for Public Infor-

mation and University Relations. Dr.

Nicholson had never previously made a

programming decision such as this, though

as the university official charged with

the responsibility of operating KUHT-TV

he had the power to do so. In a press

release announcing the cancellation Dr.

Nicholson gave the basis of his decision

as “strong and understandable objections

by the government of Saudi Arabia at a

time when the mounting crisis in the

Middle East, our long friendship with

the Saudi government and U.S. national

interests all point to the need to

avoid exacerbating the situation." Dr.

Nicholson also expressed a belief that

the program was not balanced in a "re-

011

sponsible manner ."”

Upon learning of Dr. Nicholson's

decision, on May 8, 1980, plaintiff

Barnstone brought suit to require KUHT-

TV to air "Death of a Princess."° Ms.

5. In addition to the reasons cited in

the press release, the District Court,

upon consideration of Dr. Nicholson's

testimony, found four other reasons why

the cancellation decision may have been

made. First, Dr. Nicholson testified

that he considered the program to be

"in bad taste." Second, Dr. Nicholson

expressed concern that some members of

the public might believe that the

"docu-drama" was a true documentary.

Third, Dr. Nicholson testified that the

University of Houston had previously

entered into a contract with the Saudi

Arabian royal family to instruct a

particular princess. Finally, Dr.

Nicholson testified that he had been

in charge of fund raising activities for

the university from 1957-1978 and that a

significant percentage of the univer~

sity's private contributions came from

major oil companies and from individuals

in oil related companies.

6. Harvey Malyn was subsequently granted

leave to join this action as a party-

plaintiff.

012

Barnstone argued that as a subscriber to

and regular viewer of KUHT-TV her First

and Fourteenth Amendment rights were

violated by the decision to cancel the

program.

III. The First Amendment Does

Not Prohibit Governmental

"Expression

The central argument advanced -by

the plaintiffs on appeal is that their

First Amendment rights were violated

when the defendants, as state actors,

denied the plaintiffs an opportunity to

view "Death of a Princess" on the public

television stations operated by the

defendants. We are thus called upon to

determine whether the First Amendment

rights of viewers impose limits on the

programming discretion of public tele-

vision stations licensed to state instru-

mentalities.

[1-3] The First Amendment operates

to protect private expression from in-

013

fringement by government. Such protec-

tion applies both to the right to speak

and the right to hear and its operative

in a variety of contexts. ’ The amend-

ment prohibits government from control-

ling or penalizing expression which has

been singled out by government because

8 The

of the expression's viewpoint.

First Amendment also prohibits govern-

ment from taking certain actions which

impermissibly constrict the flow of

information or ideas.?

[4] The plaintiffs emphasize that

the protection of the First Amendment

extends only to private expression and

7. See L. Tribe, American Constitutional

Law, 580-584 (1978).

8. See, Police Dept. of the City of

Chicago v. Mosley, 408 U.S. 92, S556, 92

S.Ct. 2286, 7289-2290, 33 L.Ed.2d 212

(1972); New York Times Co. v. Sullivan,

376 U.S. 254, 269-270, 84 S.Ct. 710,

720-721, 11 L. Ed.2d 686 (1964).

9. See Schneider v. State, 308 U.S. 147,

60 S.Ct. 146, 64 L.Ed. 155 (1939).

014

not to governmental expression. They

assert that the amendment serves only to

confer duties on government--not rights.?°

While this argument of the plaintiffs

may be essentially correct it in no way

resolves the issue before us. To find

that the government is without First

Amendment protection is not to find that

the government is prohibited from speak-

ing or that private individuals have the

right to limit or control the expression

of government. Even without First Amend-

ment protection government may "eartiols

pate in the marketplace of ideas," and

"contribute its own views to those of

10. Plaintiffs invoke Justice Stewart's

holding in Columbia Broadcasting Systems,

Inc. v. Democratic National Committee,

q12 U.S. of, 139, 53 S.Ct. 2080, 2107,

36 L.Ed.2d 772 (1973) (Stewart, J., con-

curring) that “[t]he First Amendment

protects the press from governmental

interference, it confers no analogous

protection on the Government."

015

other speakers." Community Service Broad-

casting v. F.C.C., 593 F.2d 1102, 1110

n.17 (D.C. Cir. 1978) .24 As Justice

Stewart aptly noted in Columbia Broad-

casting Systems, Inc. v. Democratic

National Committee, 412 U.S. 94, 139, n.7,

93 S.Ct. 2080, 2105, n. 7, 36 L.Ed.2d

772 (1973) (Stewart, J., concurring)

(hereinafter CBS), "[g]overnment is not

restrained by the First Amendment from

controlling its own expression ... '[t]he

purpose of the First Amendment is to pro-

tect private expression and nothing in the

guarantee precludes the government from

controlling its own expression or that

of its agents. '"22

ll. See L. Tribe American Constitutional

Law, 588-590 (1978); P.A.M. News Corp. v.

Butz, 514 F.2d 272 (D.C. Cir. I975).

12. Government expression, being unpro-

tected by the First Amendment, may be

subject to legislative limitation which

would be impermissible if sought to be

(footnote continued on following page)

O16

Our essential task thus does not cen-

ter on determining whether AETC and the

University of Houston are vested with a

First Amendment right to make the program-

ming decisions which they made regarding

"Death of a Princess." In the absence

of a violation of a constitutional

right inhering in the plaintiffs, AETC

and the University of Houston are free

to make whatever programming decisions

they choose, consistent with statutory

and regulatory requirements. The funda-

mental question before us is whether in

making the programming decisions at issue

here, the defendants violated the First

Amendment rights of the plaintiffs.

(footnote continued from preceding page)

applied to private expression. Yet there

is nothing to suggest that, absent such

limitation, government is restrained from

speaking any more than are the citizens.

Freedom of expression is the norm in our

society, for government (if not restrained)

and for the people. Freedom of speech is

not good government because it is in the

First Amendment; it is in the First Amend-

ment because it is good government.

017

IV. The Regulatory Framework

Enacted by Congress

Our inquiry into the constitutional

issue at hand is aided by a brief review

of the broadcast legislation enacted by

Congress. +? Such a review reveals an

13. The Supreme Court in CBS observed

that First Ameridment issues regarding

broadcast licensees should be analyzed

in light of the Congressional established

statutory and regulatory scheme:

Balancing the various First

Amendment interests involved

in the broadcast media and de-

termining what best serves the

public's right to be informed

is a task of great delicacy and

difficulty. The process must

necessarily be undertaken within

the framework of the regulatory

scheme that has evolved over the

course of the past half century.

For during that time Congress

and its chosen regulatory agency

have established a delicately

balanced system of regulation

intended to serve the interests

of all concerned."

412 U.S. at 102, 93 S.Ct. at 2086. The

Court went on to point out:

That is not to say we 'defer'

to the judgment of the Congress

and the Commission on a consti-

tutional question, or that we

(footnote continued on following page)

018

attempt by Congress to establish a

regulatory system that accommodates the

First Amendment interests of the public

and of the private broadcast licensees

and, it appears, the interests of govern-

ment broadcast licensees unless otherwise

limited by proper legislation. ?4

(footnote continued from preceding page)

would hesitate to invoke the

Constitution should we deter-

mine that the Commission has

not fulfilled its task with

appropriate sensitivity to the

interests in free expression.

The point is, rather, that when

we face a complex problem with

many hard questions and few

easy answers we do well to pay

careful attention to how the

other branches of Government

have addressed the same problem,

Id. at 103, 93 S.Ct. at 2086.

14. Extensive discussion of the history

of broadcast regulation is found in

CBS at 103-104, 93 S.Ct. at 2086-2087;

Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 375-306 a3 S.Ct. 1754, 1798-

We ’ <2 .

1804, 23 L.Ed.2d 371 (1968); National

Broadcasting Co. v. United States, 319

We ’ ee ’ . . 006-

09, 87 L.Ed. 1344 (1943).

019

Prior to 1927 the allocation of

broadcast frequencies was left entirely

to the private sector and the result was

"chaos." Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367, 375, 89 S.Ct. 1794,

1798, 23 L.Ed.2d 371 (1968) (hereinafter

Red Lion). It quickly became apparent

iat governmental regulation of the elec-

tromagnetic spectrum was essential if

the spectrum was to be optimally utilized.

"Without government control, the medium

would be of little use because of the

cacaphony of competing voices, none of

which could be clearly and predictably

heard." Red Lion, 395 U.S. at 376, 89

S.Ct. at 1799. Congress was confronted

with a fundamental choice between total

governmental ownership and control of the

broadcast media--the choice of most other

countries--or some other alternative. The

decision of Congress to establish a sys-

tem of broadcast licensing rather than

020

government monopolization reflects "a

desire to maintain for licensees so far

as consistent with necessary regulation

a traditional journliastic role." CBS,

412 U.S. at 116, 93 S.Ct. at 2093 (Burger,

C.J., writing for three members of the

court). Congress was, however, cognizant

of the fact that the Nation's airwaves

are a public resource not subject to pri-

vate ownership. Thus, in enacting a

regulatory scheme for the broadcast media,

Congress was sensitive to the need to

protect the rights of the public. The

Court in Red Lion aptly noted that because

of the scarcity of radio frequencies Con-

gress is permitted to legislate a licens-

ing regime which limits the number of

people allowed to broadcast, but that

"the people as a whole retain their in-

terest in free speech by radio and their

collective right to have the medium

function consistently with the ends and

021

purposes of the First Amendment." Red

Lion, 395 U.S. at 390, 89 S.Ct. at 1806.

The Court went on to observe that the

purpose of the First Amendment in the con-

text of broadcasting is "to preserve an

uninhibited marketplace of ideas in

which the truth will ultimately prevail,

rather than to countenance monopolization

of that market, whether it be by the

Government itself or a private licensee."

Id. at 390, 89 S.Ct. at 1806.

Congress thus enacted the Radio Act

of 1927 which established the Federal

Radio Commission to allocate frequencies

among competing applicants in a manner

responsive to the public "convenience,

15 The Radio

interest, or necessity."

Act of 1927 was not only protective of

the First Amendment interests of, the

public but it also recognized and sought

15. Radio Act of 1927 § 4, 44 Stat. 1163.

022

to protect the First Amendment interests

of broadcast licensees. The Court in

CBS, 412 U.S. at 105, 93 S.Ct. at 2087,

observed that in enacting this legisla-

tion "Congress chose to leave broad

journalistic discretion with the licen-

sees.” The Court noted further that

"Congress specifically dealt with and

firmly rejected the argument that the

broadcast facilities should be open on

a nonselective basis to all persons

wishing to talk about public issues."

Id.

The Communications Act of 1934, 47

U.S.C. §§ 151 et seg., the successor to

the Radio Act of 1927, was similarly

designed by Congress to promote a balance

between the First Amendment interests of

the public and of the broadcast licensees.

In furtherance of the First Amendment

rights of the public the Communications

Act specifically mandates that the Fed-

G23

eral Communications Commission consider

the public interest in the course of

granting licenses, 47 U.S.C. §§ 307(a),

309(a); renewing them, 47 U.S.C. § 307;

16 The FCC is also

and modifying them.

required to consider the public interest

in promulgating rules and regulations

governing the use of broadcast licenses.

47 U.S.C. § 303.

In affirming the First Amendment

interests of broadcast licensees § 3(h)

of the Communications Act specifically

provides that broadcast licensees are not

to be deemed common carriers.’ The

16. The “public interest" includes the

First Amendment interest of the public

to receive "suitable access to social,

political, esthetic, moral, and other

ideas and experiences ... " Red Lion,

395 U.S. at 390, 89 S.ct. at 1806.

17. Section 3(h) provides as follows:

"Common carrier,’ or ‘carrier’ means

any person engaged as a common car-

rier for hire in interstate or foreign

communication by wire or radio or in

interstate or foreign communication

by wire or radio or in interstate or

foreign radio transmission

of energy, except where ref-

(footnote continued on following page)

O24

Court in CBS observed that this along

with other provisions "evince a legi-

Slative desire to preserve values of

private journalism under a regulatory

scheme which would insure fulfillment

of certain public obligations." CBS,

412 U.S. at 109, 93 S.Ct. at 2089.28

(footnote continued from preceding page)

erence is made to common carriers

not subject to this chapter; but

a person engaged in radio broad-

casting shall not, insofar as

such a person is so engaged, be

deemed a common carrier.

47 U.S.C. § 153(h).

18. See also FCC v. Midwest Video Corp.,

440 U.S. 689, 705, 99 S.ct. 1435, 1443,

59 L.Ed.2d 692 (1979).

"As we see it § 3(h), consistently

with the policy of the Act to

preserve editorial control of

programming in the licensee,

forecloses any discretion in the

Commission to impose access

requirements amounting to commori-

carrier obligations on broadcast

systems. The provision's back-

ground manifests a congressional

belief that the intrusion worked

by such regulation on the jour-

nalistic integrity of broad-

casters would overshadow any

(footnote continued on following page)

025

The FCC has, consequently fulfilled its

statutory obligations by promulgating

regulations which view licensees as hav-~-

ing the sole right and nondelegable

responsibility to select the programs

19

to be broadcast. The Court in

(footnote continued from preceding page)

benefits associated with the

resulting public access. It is

difficult to deny, then, that

forcing broadcasters to develop

a “"nondiscriminatory system for

controlling access ... is precisely

what Congress intended to avoid

through § 3(h) of the Act."

19. The most salient example is section

73.658(e) of the Commission's rules which

provides:

No license shall be granted to

a television broadcast station

having any contract, agreement,

or understanding, express or

implied, with a network organiza-

tion which, with respect to

programs offered or already con-

tracted for pursuant to an af-

filiation contract, prevents or

hinders the station from (1) re-

jecting or refusing network pro-

grams which the station reason-

ably believes to be unsatisfac-

tory or unsuitable or contrary

to the public interest or (2)

substituting a program which, in

the station's opinion is of

greater local or national importance.

47 C.F.R. § 73.658(e).

- 026

Cosmopolitan Broadcasting Corp. v. FCC,

581 F.2d 917, 921 (D.C. Cir. 1978),

pointed out that:

A basic premise of Commission

policy is that a licensee is a

‘trustee’ for the public and

that he must therefore assume

the ‘primary duty and privi~

lege to select the material

to be broadcast to his aud-

ence ... ' [cites omitted]

‘The Commission has always

regarded the maintenance of

control over programming as a

most fundamental obligation

of the licensee.' [cites

omitted]

Public television licensees are

generally subjected to the same regula-

tory requirements as their commercial

counterparts. See Accuracy in Media, Inc.

vv. FCC, 521 F.2d 288, 291'(D.C. Cir.

1975), cert. denied, 425 U.S. 934, 96

S.Ct. 1664, 48 L.Ed.2d 175 (1976). Thus

the FCC, in its demand for unfettered

licensee control over programming has

made no distinction between private and

public licensees. City of New York

027

Municipal Broadcasting System, 56 F.C.C.

2d 169 (1975).

The Public Broadcasting Act of 196779

enacted by Congress to provide financial

assistance for programming and the opera-

tions of public broadcasters further

illustrates a Congressional desire that

public broadcast licensees retain inde-

pendent programming responsibility. In

enacting this statute Congress expressed

the belief that the "local stations are

the bedrock" and they rather than anyone

else, are to "retain the responsibility

to assess community needs and determine

what programs will best meet those needs."

S.Rep. No. 222, 90th Cong., lst Sess. 7

(1967), U.S. Code Cong. & Admin. News

1967, p. 1772, 1778. Congress noted

that "the decision to broadcast ... [any]

program remains with the local station,"

20. Public Broadcasting Act of Nov. 7,

1967, Pub. L. No. 90-129, 81 Stat. 365.

028

id. at 15, U.S. Code Cong. & Admin.

News 1967, p. 1786, and "each station

would be required to make its own deci-

sion as to what programs it accepts and

broadcasts and at what time." Id. at

14-15,72

U.S. Code Cong. & Admin. News

1967, p. 1786.

{5, 6] The picture which emerges from

the regulatory scheme adopted by Congress

is one which clearly shows broadcast li-

censees endowed with the privilege and

responsibility of exercising free pro-

greiinine control of their broadcasts, yet

also charged with the obligation of

making programming decisions which pro-

tect the legitimate interests of the

public. The right to the free exercise

of programming discretion is, for private

licensees, not only statutorily conferred

21. This insistence on unhindered local

licensee programming discretion was codi-

fied in Section 396(g)(1)(B) of the Act.

- 028

but also constitutionally protected. CBS.

Under the existing statutes public li-

censees such as AETC and the University

of Houston possess the same rights and

obligations to make free programming

decisions as their private counterparts;

however, as state instrumentalities, these

public licensees are without the protec-

tion of the First Amendment. This lack

of constitutional protection implies

only that government could possibly impose

restrictions on these licensees which

it could not impose on private licensees.

The lack of First Amendment protection

does not result in the lessening of any

of the statutory rights and duties held

by the public licensees. It also does

not result in individual viewers gaining

any greater right to influence the pro-

gramming discretion of the public licen-

036

V. KUHT-TV_ and AETC are not

Public Forums

It is clear that Congress did not

deem it necessary for viewers to be ac-

corded a right of access to television

broadcast stations in order for the pub-

lic's First Amendment interests in this

medium to be fully realized. Indeed it

is clear that Congress concluded that

the First Amendment rights of public

television viewers are adequately protect-

ed under a system where the broadcast li-

censee has sole programming discretion

but is under an obligation to serve the

public interest. In spite of this Con-

gressional scheme the District Court in

Barnstone found that KUHT-TV was a public

forum because it was operated by the gov-

ernment for public communication of views

on issues of political and social signi-

ficance. The court held that as a public

forum the station could not deny access

C34

to speakers who wished to be heard in

the forum, unless the requirements for

prior restraint were satisfied. 514

F.Supp. at 689-91.

The plaintiffs now urge that we

affirm the District Court's ruling that

public television stations are public

forums. The plaintiffs, unlike the

District Court, however, do not argue

for a public right of access to the sta-

tions. Instead the plaintiffs contend

that as public forums the stations are

prohibited by the First Amendment from

making programming decisions motivated

by hostility to the communicative impact

of a program's message and stemming from

a specific viewpoint of the broadcaster.

{[7, 8] We find both the holding of

the District Court and the argument of

the plaintiffs to be incorrect. The

Supreme Court has recently rejected the

theory adopted by the District Court

032

¢

that because a government facility is

"specifically used for the communication

of information and ideas" it is ipso

facto a public forum. United States

Postal Service v. Council of Greenburgh

Civic Ass'ns, 453 U.S. 114, 101 S.Ct. 2676,

2685 n. 6, 69 L.Ed.2d 517 (1981).77 a

facility is a public forum only if it is

designed to provide a general public

right of access to its use, or if such

public access has historically existed

and is not incompatible with the facili-

23

ty"s primary activity. In Southeastern

22. The Court in United States Postal

Service ruled that mailboxes are not

public forums.

23. Cf. Greer v. Spock, 424 U.S. 828,

836, 56 S.ct. I21TI, IZt6, 47 L.Ed.2d 505

(1976): “The Court of Appeals was

mistaken ... in thinking ... that whenever

members of the public are permitted

freely to visit a place owned or operated

by the Government, then that place be-

comes a ‘public forum’ for purposes of

the First Amendment. Such a principle

of constitutional law has never existed,

(footnote continued on following page)

033

Promotions, Ltd. v. City of West Palm

Beach, 457 F.2d 1016 (5th Cir. 1972), we

adopted the following test for determin-

ing whether a public facility is a "public

forum":

does the character of the place,

the pattern of usual activity,

the nature of its essential pur-

pose and the population who

take advantage of the general

invitation extended make it an

appropriate place for communica-

tion of views on issues of poli-

tical and social significance.

457 F.2d at 1019.

In the cases in which a public fac-

ility has been deemed a public forum the

speakers have been found to have a right

of access because they were attempting

to use the facility in a manner fully

consistent with the "pattern of usual

(footnote continued from preceding page)

and does not exist now. The guarantees

of the First Amendment have never meant

‘that people who want to propagandize pro-

tests or views have a constitutional

right to do so whenever and however and

wherever they please.'" (quoting Adderle

v. Florida, 385 U.S. 39, 48, 87 S.Ct. aa,

247, 17 L.Ed.2d 149 (1966).

034

activity" and "the general invitation

a4 The pattern of usual ac-

extended."

tivity for public television stations is

the statutorily mandated practice of the

broddcast licensee exercising sole pro-

gramming authority. The general invita-

tion extended to the public is not to

schedule programs, but to watch or decline

24. The nature of facilities held to

constitute public forums may be gleaned

from the cases: municipal auditoriums,

Southeastern Promotions Ltd. v. conrad,

L.

2d 448 (1975); bus “terminals, Wolin Vv.

Port of New York Authority, 392 F.2d 83

Cif. , cert. denied, 393 U.S.

940, 89 S.Ct. 290, 21 E.Ed.2d 275 (1968);

airports, Chicago Area “iiLitary Project

v. City of cago, Fe

Cir. 1875); cert. denied, 421 U.S. 992,

95 §.Ct. 1995, 44 L.Ed.2d 483 (1975); high

school =i land National Socialist

White People's Party Vv. Ringers, 473

F.2d IOt0 (4th Cir. 1573) (en Banc) ;

public libraries, Brown v. Louisiana, 383

U.S. 131, 86 S.Ct. 719, 15 L.Bd.2d 637

(1966) (pluralit opinion) ; shopping cen-

ters, Amalg Food ee Vv. Logan

Gat aza, °

d.2da 603 (1968); and welfare

offices, Alban Welfare Rights Organiza-

tion v. Wyman, 493 F.2d 13t5 (2d ar

1574).

© 035

25 It is thus

to watch what is offered.

clear that the public television stations

involved in the cases before us are not

public forums. The plaintiffs have no

right of access to compel the broadcast

of any particular program.

Our holding today is consistent with

the Supreme Court's ruling in CBS that

television stations operated by private

broadcast licensees provide no public

right of access. The Court in CBS

pointed out that the creation of a public

right of access to television stations

25. Similarly producers of television

programs are extended no invitation to

air their programs on the public tele-

vision stations. Producers are, of

course, free to submit their programs

to the stations with a request that they

be broadcast, but they have no right to

compel such broadcast. The decision

whether to broadcast a program remains

entirely with the licensee. The District

Court for the southern District of Texas

thus erred in finding that the producers

of "Death of a Princess" had a right of

access to station KUHT-TV to broadcast

the film.

© O03

would result in the derogation of the

licensees' duty to insure that their

stations serve the public interest:

The result would be a further

erosion of the journalistic

discretion of broadcasters in

the coverage of public issues,

and a transfer of control over

the treatment of public issues

from the licensees who are ac-

countable for broadcast per-

formance to private individuals

who are not. The public interest

would no longer be "paramount"

but, rather, subordinate to

private whim.

CBS, 412 U.S. at 124, 93 S.Ct. at 2097.

The court further observed that, aside

from being inconsistent with the licen-

sees' obligation to insure that the

public interest is served, a public

right of access is also inconsistent

with the licensees' essential task of

exercising editorial discretion:

Nor can we accept the Court of

Appeals' view that every potential

speaker is “the best judge" of

what the listening public ought

to hear or indeed the best judge

of the merits or his or her views.

All journalistic tradition and

experience is to the contrary.

03%

The plaintiffs stress that they do

not argue for the creation of a public

right of access to public television

stations. They contend that, even with-

out a public right of access, the stations

are public forums and as such cannot make

programming decisions based on the com-

municative impact of a program. We find

this contention to be untenable. It is

the right of public access which is the

essential characteristic of a public

forum and the basis which allows a speaker

to challenge the state's regulation of

the forum. The gravamen of a speaker's

public forum complaint is the invalid and

discriminatory denial of his right of

access to the forum. If a speaker does

not have a right of access to a facility,

that facility by definition is not a

“public forum" and the speaker is without

grounds for challenge under the public

t Q34

forum doctrine. “°

VI. The Decision to Cancel Death of a

Princess was not Governmental

Censorship

The plaintiffs argue that even if

we decline to characterize KUHT-TV and

AETC as public forums we should none-

theless find that the defendants violated

the plaintiffs' First Amendment rights

by “censoring” “Death of a Princess."

The plaintiffs contend that censorship,

in violation of the First Amendment,

occurs when state officials in charge of

state operated public television stations

decide to cancel a scheduled program

because of the officials' opposition to

the program's political content.

26. See Jones v. North Carolina Prisoners'

Labor Union, inc., 4 ss P eGo

2532, 923 L.bd.2d 629 (1977); Greer v.

Spock, 424 U.S. 828, 96 S.Ct. I2II, 47

oie tq 505 (1976); Lehman v. Shaker

Heights, 418 U.S. 298, 94 8.Ct. 27147, 41

E-Et-22'770 (1974)) Adderley v. Florida,

385 U.S. 39, 87 §.Ct. 242, b L.Ed.2d 149

(1966).

038

[9] There is no questicn that "the

First Amendment means that government has

no power to restrict expression because

of its message, its ideas, its subject

matter, or its content .... The essence

of this forbidden censorship is content

control." Police Dept. of Chicago v.

Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286,

2289-2290, 33 L.Ed.2d 212 (1972). How-

ever, the First Amendment prohibitions

applicable to one method of expression

do not always transfer intact to another

method because “[e]Jach method tends to

present its own peculiar problems."

Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495, 503, 72 S.Ct. 777, 781, 96 L.Ed.

1098 (1952). The Supreme Court has thus

recognized that "because the broadcast

media utilize a valuable and limited

public resource" they "pose unique and

special problems not present in the

traditional free speech case." CBS,

040

412 U.S. at 101, 93 S.Ct. at 2085.

{10, 11] We are not convinced that edi-

torial decisions of public television sta-

tions owned and operated by the state must,

or should, be viewed in the same manner

and subjected to the same restrictions

as state regulatory activity affecting

speech in other areas. Standard First

Amendment doctrine condemns content con-

trol by governmental bodies where the

government sponsors and financially sup-

ports certain facilities through the use

of which others are allowed to communi-

cate and to exercise their own right of

27

expression. Government is allowed to

impose restrictions only as to "time,

27. See Bazaar v. Fortune, 476 F.2d 570,

574, aff'd as modified en banc, 489 F.2d

225 (5th Cir. 1973), cert. denied, 416

U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774

(1974) (university literary magazine) ;

Brooks v. Auburn University, 412 F.2d

II71 (Sth Cir. 19695) (speaker invited

by college student organization).

041

place, or manner" in the use of such

public access facilities--public forums. 28

As we observed earlier, however, the

First Amendment does not prohibit the

government, itself, from speaking, nor

require the government to speak. *? Sim-

ilarly, the First Amendment does not

preclude the government from exercising

editorial control over its own medium

of expression. See Wooley v. Maynard,

430 U.S. 705, 716-17, 97 S.Ct. 1428,

1436-37, 51 L.Ed.2d 752 (1977); Advocates

for the Arts v. Thompson, 532 F.2d 792

(lst Cir.), cert. denied, 429 U.S. 894,

97 S.Ct. 254, 50 L.Ed.2d 177 (1976); Avins

v. Rutgers, State University of New

Jersey, 385 F.2d 151 (3d Cir. 1967),

cert. denied, 390 U.S. 920, 88 S.Ct. 855,

19 L.Ed.2€ 982 (1968); Network Project

29. See p. 1050 infra; see also Houchins

Vv. K ED Inc. 438 U.S. l, 13-17, 58 S.Ct.

2588, 2556, 57 L.Ed.2d 553 (1978).

~ O42

v. Corporation for Public Broadcasting,

4 Med.L.Rptr. 2399, 2409 (D.D.C. 1979).

{12] The plaintiffs concede that state

officials operating public : television

stations can exercise some editorial

discretion. They contend, however, that

in exercising this discretion the officials

must be “carefully neutral as to which

speakers or viewpoints are to prevail

in the marketplace of ideas." CBS, Inc.

v. FCC, 629 F.2d 1, 30 (D.C. Cir. 1980),

aff'd 453 U.S. 367, 101 S.Ct. 2813, 69

L.Ed.2d 706 (1981). The plaintiffs

further contend that if the officials

restrict a program due to their hostility

to the political content of the program

then the restriction is presumptively

unconstitutional. The plaintiffs sug-

gest that we adopt the evidentiary stan-

dard established by the Supreme Court in

Mt. Healthy City School Dist. v. Doyle,

429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d

- 043

471 (1977). Under this standard the

initial burden would be on the plaintiffs

to show that unconstitutional motivations

were a “substantial” or "motivating" fac-

tor in the defendants’ decisions to

cancel "Death of a Princess." Once this

burden is met by the plaintiffs the duty

shifts to the defendants to show that

the decisions would have been the same

if the improper factor had not been con-

sidered.

The plaintiffs' analysis fails to

recognize a number of essential dif-

ferences between typical state regulation

of private expressive activity and the

exercise of editorial discretion by

state officials responsible for the oper-

ation of public television stations. When

state officials operate a public televi-~

sion station they must necessarily make

discriminating choices. As the Supreme

Court pointed out in CBS, 412 U.S. at

044

124, 93 S.Ct. at 2097, "(flor better

or worse, editing is what editors are

for; and editing is selection and choice

of material." In exercising their edi-

torial discretion state officials will

unavoidably make programming decisions

which can be characterized as "politically

motivated." All television broadcast

licensees are required, under the public

interest standard, to cover political

events and to provide news and public

affairs programs dealing with the poli-

tical, social, economic and other issues

which concern their community. See,

Representative Patsy Mink (WHAR), 59

F.C.C.2d 987 (1976); Fairness Doctrine

and Public Interest Standards, 39 Fed.

Reg. 26371 (July 18, 1974); Report and

Statement of Policy re Commission En

Banc Programming Inquiry, 44 F.C.C. 2303

(1960). The licensees are thus required

to make the inherently subjective deter-

045

mination that their programming decisions

are responsive to the needs, problems and

interests of the residents of the area

they serve. Red Lion, 395 U.S. at 380,

89 S.Ct. at 1801. A general proscription

against political programming decisions

would clearly be contrary to the licen-

sees' statutory obligations, and would

render virtually every programming deci-

sion subject to judicial challenge.

The plaintiffs seek to draw a

distinction between a decision not to

show a program and a decision to cancel

a previously scheduled program. They

suggest that while it is a proper exer-

cise of editorial discretion for a licen-

see initially to decide not to schedule

a program, it is constitutionally improper

for the licensee to decide to cancel a

scheduled program because of its poli-

tical content. In support of their view

the plaintiffs cited decisions holding

046

that school officials may be free ini-

tially to decide which books to place

in their school libraries but that a

decision to remove any particular book

may be subject to constitutional chal-

lenge. °° We are not persuaded, however,

30. At the time this case was submitted

to us, the plaintiff cited, inter alia,

Pico v. Board of Educ., 638 F.2d 404

(2d Cir. 1980), and we noted that the

Supreme Court had granted certiorari.

On June 15, 1982, the judgment of the

Supreme Court was handed down, Board of

Educ. v. Pico, U.S. , 102 S.Ct.

73 L.Ed.2d 435 (1982). We are unable to

interpret the Court's opinion in Pico

to give us guidance in the application

of the First Amendment to the case at

hand. First, Pico is a case involving

a constitutional attack upon the removal

of books from a school library which, as

discussed in the text, is quite different

from the situation confronting us. Fur-

ther, we conclude that the Supreme Court

decided neither the extent nor, indeed,

the existence vel non., of First Amend-

ment implications in a school book re-

moval case.

A majority of the justices did not join

any single opinion in Pico. Thereis a

plurality opinion, i.e., one attracted

more concurrences than did any other

Opinion leading to the result. The

opinion by Justice Brennan is joined by

(footnote continued on following page)

047

(footnote continued from preceding page)

Justice Marshall and Justice Stevens.

Justice Blackmun concurred in all save

one section, but dissents from the plur-

ality's opinion that the "right to

receive information" detected by Justice

Blackmun imposes a duty upon the State

to provide information or ideas,

U.S. at , 102 S.Ct. at 2814, and is

dubitante as to the plurality's opinion

that there is a difference between the

removal of a book from a school library

and the failure to acquire a book. Id.

n.l.

The Chief Justice and three others, Justice

Powell, Justice Rehnquist and Justice

O'Connor, in dissent, agree with Justice

Blackmun that there is no First Amendment

obligation upon the State to provide

continuing access to particular books.

U.S. at , 102 S.Ct. at 2819

(Burger, C.J., dissenting), thus making

a majority of Members for that view.

The four in dissent find no difference,

in constitutional law, in the removal

of a book and in the failure to acquire

it. Id. U.S. at , 102 S.Ct. at

2821. Three Members detect such a dif-

ference; four reject the notion; and one

Member doubts its existence.

The Fifth Member of the Court voting for

the judgment expresses no opinion on the

First Amendment issues, being of the

opinion that the Court should not, until

after remand, “issue a dissertation on

the extent to which the First Amendment

limits the discretion of the school board

to remove books from the school library."

Id. U.S. at , 102 S.Ct. at 2816

(White, J., concurring in the judgment).

Justice White does not express the view

that there may be facts implicating the

First Amendment but, detecting that there

(footnote continued on following page)

048

(footnote continued from preceding »age)

may be a factual setting which would not

involve constitutional concerns on the

part of any Member, prefers a more com-

plete record development before

addressing such concerns.

Being instructed by Marks v. United States,

430 U.S. 188, 192-93, 97 S.Ct. 950, 993,

51 L.Ed.2d 260 (1977), and Gregg v.

Georgia, 428 U.S. 153, 96 S.Ct. , 49

L.Ed.2d 859 (1976) (plurality opinion),

that in no clear-majority cases we should

look to "that position taken by those

members who concurred in the judgment

on the narrowest grounds," id. at 169

n.15, 96 S.Ct. at 2923 n.15, and finding

in the opinion of Justice White the nar-

rowest grounds for the judgment, we con-

clude that Pico is of no precedential

value as to the application of the First

Amendment to these issues. (For comment-

ary discussing the task of determining

precedent from plurality opinions, see,

e.g., Note, Plurality Decisions and

Judicial Decisionmaking, 94 Harv.L.Rev.

1127 (1981); Note, The Precedential

Value of Supreme Court Plurality Deci-

Sions, 80 COlum.L.ReV. 756 (Ida.

e the majority of the Court entered

judgment in Pico resulting in a remand

for the development of the record, this

was necessarily based upon the status

of the record and the issues presented

in the case. Here, we are satisfied

that the record before us adequately

presents the issues.

04g

that the distinction urged upon us is

valid or that the school library cases

are applicable.

The decision to cancel a scheduled

program is no less editorial in nature

than an initial decision to schedule the

program. See Advocates for Arts v.

Thomson, 532 F.2d 792 (lst Cir.), cert.

denied, 429 U.S. 894, 97 S.Ct. 254, 50

L.Ed.2d 177 (1976). Both decisions re-

quire the licensee to determine what

will best serve the public interest, and,

as we noted earlier, such a determina-

tion is inherently subjective and in-

volves judgments which could be termed

"political."

School libraries are distinguishable

from broadcast stations in a number of

important ways. There are limited

hours in a day for broadcasting, and

broadcast licensees are constantly re-

quired to make sensitive choices between

0506

available programs. Cf. Board of Educa-

tion v. Pico, U.S. ’ , nel,

102 S.Ct. 2799, 2814, n. 1, 73 L.Ed.2d

435 (1982) ("The school's finite resources--

as well as the limited number of hours

in the day--require that educational

officials make sensitive choices be-

tween subjects to be offered ....") (Blackmun,

J., concurring in part). The maintenance

of one volume on a library shelf does not

(absent space limitations) preempt an-

other. In broadcast, only one transmis-

sion of information, entertainment, or

other message can occur at any one time.

A library constantly and simultaneously

proffers a myriad of written materials.

As discussed in Part IV, hereinabove,

the Congress has undertaken its careful

analysis and balancing of conflicting

interests involved in broadcasting and

in public broadcasting, and the judicial

- 051

branch should pay careful attention. >=

CBS, 412 U.S. at 103, 93 S.Ct. at 2086.

There have been no comparable delibera~-

tions or enactments by that branch with

respect to libraries. More specifically,

there is no counterprart, vis-a-vis li-

braries, to the Federal Communications

31. All branches of government are, and

ought to be, guardians of the Constitu-

tion. It is no encroachment upon the pri-

vate preserve of the Judicial Branch for

the Congress to undertake implementation

of the First Amendment; it is the duty of

the Congress to do so. The Judiciary

must be the final arbiter, but it is not

the sole provider of freedom under the

Bill of Rights.

The Courts properly pay close attention to

the implementation of constitutional guar-

antees by the Congress. CBS, 412 U.S. at

103, 93 S.Ct. at 2086. Indeed, the

Supreme Court has not infrequently deplored

the absence of action by the Congress,

which, by its nature, is equippped to

gather information and consider the impact

and effectiveness of proposals to imple-

ment such guarantees far more broadly than

the considerations advanced in a given

case. See, e.g., Bivens v. Six Unknown

Federal Narcotics

» 29 Le Ed. 2d 619

(footnote continued on following page)

052

32 When

Commission's "Fairness Doctrine."

a television broadcaster finds that it has

scheduled a program espousing one view,

it may have unwittingly encumbered its

limited broadcast hours with a require-

ment that equal time be devoted to cther

viewpoints which might touch upon an is-

sue of limited interest in its viewing

area. But the maintenance of one volume

(footnote continued from preceding page)

(Burger, C. J., dissenting) (absence of

Congressional action to implement Fourth

Amendment deplored); Stone v. Powell, 428

U.S. 465, 500, 96 S.Ct. 3037, 3055, 49

L.Ed.2d 1067 (Burger, C.J., concurring)

(desirability of Congressional implementa-

tion of Fourth Amendment again noted).

32. "Formulated under the Commis-

sion's power to issue regulations

consistent with the 'public inter-

est,' the [Fairness Ddctrine] im-

poses two affirmative responsi-

bilities on the broadcaster: cov-

erage of issues of public import-

ance must be adequate and must

fairly reflect differing viewpoints.

In fulfilling the Fairness Doctrine

obligations, the broadcaster must

proviae free time for the presenta-

tion of opposing views if a paid

(footnote continued on following page)

054

espousing one side of an issue does not in-

voke government regulation requiring that

shelf space be made available for all

other views. Finally, a school would be

expected to furnish only one library for

its student population. The residents of

a state may expect a choice of a number of

television stations, often with the publicly

owned facility attracting the smallest

number of viewers.

The right to cancel a program is,

futhermore, far more integral a part of

the operation of a television station than

the decision to remove a book from a school

library. Libraries typically have at

least the opportunity to review a book be-

fore acquiring it, therefore, there may

(footnote continued from preceding page)

sponsor is unavailable and must

initiate programming on public

issues if no one else seeks to do

so."

2050-91 (citations omitted) .

~- O54

be "few legitimate reasons why a book,

once acquired, should be removed from a

library not filled to capacity." Pico v.

Board of Education, 638 F.2d 404, 436 (2d

Cir. 1980) (Newman, J., concurring), aff'd,

___—-U.S. se, -:102 S.Ct. 2799, 73

L.Ed.2d 435 (1982). In comparison,

television stations frequently do not

have the chance to see a program until

after the station's schedule has been

printed, and there are numerous legiti-

mate reasons why a station may decide

to cancel a program it has initially

scheduled. Indeed FCC regulations spec-

ifically require that licensees retain

the power to reject any program which

the licensee has already contracted for

if the licensee determines that the

program is “unsatisfactory or unsuitable

or contrary to the public interest." 47

CFR § 73.658.

We conclude that the defendants'

05%)

editorial decisions to cancel "Death of a

Princess" cannot be properly characterized

as "censorship." Had the states of Alabama

and Texas sought to prohibit the exhibi~

tion of the film by another party then in-

deed a question of censhorship would have

arisen. Such is not the case before us.

The states have not sought to forbid or

curtail the right of any person to show

or view the film. In fact plaintiff

Barnstone has already viewed the film at

an exhibition at Rice University in

Houston. °° The state officials in charge

33. Thus, contary to the finding of the

District Court in Barnstone, the defend-

ant did not suppress the speech of the

producer of "Death of a Princess." The

defendants did not in any manner seek to

prevent the producers from freely distri-

buting or exhibiting the film. The de-

fendants chose only not to exhibit the

film through the stations which they

were licensed to operate.

~ 056

of AETC and KUHT-TV have simply exer-

cised their statutorily mandated discre-

tion and decided not to show a particular

program at a particular time. There is

a clear distinction between a state's

exercise of editorial discretion over its

own expression, and a state's prohibition

or suppression of che speech of another .>4

34. The state may not suppress the

expression of ideas. Thus, the state

may not prevent Nazi's from expressing

their views in a parade. National

SO eee Party of America v. tay aeee

OK1e, ’

53 L. Ed. 2d 96 (1977) (per curiam) .

There is a right to receive ideas that

others express. Therefore, we apprehend

that the state could not forbid or

unreasonably obstruct, people within

its jurisdiction from viewing the Nazi

parade. Lamont v. Postmaster General,

381 U.S. 301, 85 S.Ct. 1493, 17 L.Ed.

2d 398 (1965). Nevertheless, the State

is free to decline to express itself in

such a parade ard we apprehend t ’

should a misguided police chief schedule

the appearance of the police force at

the head of a Nazi parade, wearing swas-

tika arm bands, there would be no cen-

sorship, interference with the right to

receive, or other First Amendment viola-

tion should the Mayor or City Council can-

cel the scheduled appearance of the

police officers.

057

VII. The Plaintiffs Can Seek Remedial

Relief from the FCC

Our holding chat the defendants did

not violate the plaintiffs' First Amend-

ment rights does not preclude the plain-—

tiffs from challenging the propriety of

the defendants' programming decisions with

the FCC. Our decision is limited to the

constitutional issue presented. We offer

no opinion as to whether or not the ac-

tions of AETC and the University of

Houston comport with their statutory and

regulatory obligations.

[13] Under the Communications Act the

FCC may at any time, upon public complaint

or sua sponte, review the programming

selections of its licensees to ascertain

whether they are complying with the re-

quirements of the Act, in particular the

requirement that the licensee act in the

public interest. 47 U.S.C. § 308(b).

The FCC routinely reviews complaints sim-

058

ilar to those raised by the plaintiffs.?>

35. See, e.g., KMAP, Inc., 72 F.C.C.2d

241 (1579) Suppression of news concern-

ing United Farm Workers Movement); Right

to Life of Louisville, Inc., 59 F.C.C.2d

T103 (1976) (refusal to broadcast photo-

graphs of live fetuses in womb); RKO

General, Inc., 46 F.C.C.2a'240 (1974)

(failure to air program about Passover) ;

Representative Patsy Mink (WHAR), 59 F.C.

e. om 987 (L567) (Falture to broadcast

strip mining program); William Harsha,

31 F.C.C.2d 847 (1971) (refusal to allow

George Jessel's criticism of "The New

York Times" and "The Washington Post") ;

Mrs. piexane Mark, 34 F.C.C.2d 434

Mark v. FCC, 468 F.2d 266

(lst cls 1972) (refusal to allow comments

concerning astrology and astrological

sign reading); Citizens Communications

Center, 25 F.C.C. 20 705 (1970) (refusal

to air intimate scene between Black and

White actors); Letter to Richard L.

Ottinger, 31 F.C.C.2d 652 (1970) (editing

of remarks on Chicago conspiracy trial);

Gross Telecastin Inc. 14 F.C.C.2d 239

(1568) (news slanting for private inter-~

ests of licensee); Tri-State Broadcastin

Co., Inc., 59 F.C.C.2d 1240 (1976) (alleged

news distortion to promote interests of

advertisers); Public Communications, Inc.,

49 F.C.C.2a 83 (1974) (deletion of

reference to product in entertainer's

monologue); Screen Gems Stations, Inc.,

46 F.C.C.2d , recon, denied, 51

F.C.C.2d 557 (1975) (broadcast of Sugar

Bowl would be contrary to public interest

because the game discriminates against

Blacks); Columbia Broadcasting System

(Mobile Homes), 43 F.C.C.2d 1266 (1973)

("60 Minutes" segment on mobile homes

failed to disclose CBS's interest ina

(footnote continued on following page)

- 058

If the FCC determines that a licensee

has engaged in improper programming it

can impose a variety of remedial sanc-

tions including: admonishment of the

licensee for irresponsible programming

(footnote continued from preceding page)

Florida development); Mark Lane, 37 F.C.

C.2d 630 (1972) (deletion of remarks in

discussion of Viet Name War); Nat“onal

Broadcasting Company (Chet Huntley), 14

F.C.C.2d 713 C1588} (Chet Huntley com-

mentary re: Wholesome Meat Act of 1967

failed to disclose his ranching interests) ;

KTYM (Anti-Defamation League), 4 F.C.C.

2g 190 (1966), aff'd 403 F.2d 169 (D.c,

Cir. 1968), cert. denied, 394 U.S. 930,

89 S.Ct. 1190 32 L ~Ed.2d 459 (1969)

(broadcast of bp Roe a anti-Semitic

remarks); Bernard Hanft, 14 F.C.C.2d

364 (1968) (failure to cover department

store picketing); Columbia Broadcastin

System (WBBM-TV), F.C.C. )

(allegation that "pot party" documentary

was staged by broadcaster) ; Corumbia

Broadcasting System (Poor People's Cam-

aign), 1? P & F Rad. Reg. 9)

(astatece of Poor People's Campaign al-

legedly slanted and staged); Radio Sta-

tion WSNT, Inc. 27 F.C.C.2d 9

(failure to cover Black organization's

activities); Time-Life Broadcast, Inc.

(KOGO-TV), 33 F.C.C. alle-

gations of "Anglo bias" in the news);

Hunger in America, 20 F.C.C.2d 143 (1969)

(documentary allegedly misleading and

staged); Lincoln County Broadcasters, Inc.

51 F.C.C.2d 65 (1975) (broadcast of zoning

decision for political reasons).

O60

judgments, Columbia Broddcasting System

(WBBM-TV), imposition of a forfeiture for

programming inconsistent with the public

interest, Illinois Citizens Committee for

Broadcasting v. F.C.C., 515 F.2d 397 (D.

Cc. Cir. 1974); declaration that the

licensee has failed to comply with FCC

policies, Representative Patsy Mink, is-

suance of a "short term" renewal, CBS,

Inc., 69 F.C.C.2d 1082(1978); desingation

of license renewal application for full

evidentiary hearing, WTWV, Inc., 52 F.C.C.

2d 633 (1977); and denial of license

renewal. °°

36. Indeed in Alabama Educational Tele-

vision Commission, 50 F.C.C.2d 461 (1975)

the FCC denied AETC's license renewal

application because of its finding that

AETC's programming discriminated against

Blacks.

O61

VII. Conclusion

The decisions of AETC and the Univer-

sity of Houston to cancel "Death of a

Princess" did not violate the First Amend-

ment rights of the plaintiffs. The plain-

tiffs have no constitutional right to

compel the broadcast of the program.

Accordingly, we find that the District

Court for the Northern District of Alabama

properly awarded summary judgment to

AETC. We also find that the District

Court for the Southern District of Texas

erred in issuing its order reguiring

KUHT-TV to broadcast the program.

The judgment of the District Court

for the Northern District of Alabama is

AFFIRMED.

The judgment of the District Court

for the Southern District of Texas is

REVERSED and REMANDED. On remand the

District Court shall dissolve the injunc-

tive relief and render judgment for

appellants.

062

RUBIN, Circuit Judge, with whom POL-

LITZ, RANDALL and WILLIAMS, Circuit Judges,

join, specially concurring.

While I join in the result reached

by the majority, I reach my conclusion on

a different basis. Therefore, I join

in the views expressed by Judge Garwood

and add:.

The sensitive and important issues

in these cases cannot be resolved simply

by attempting to decide whether a tele-

vision station operated by a state agency

is, or is not, a public forum. That term

is but a label, developed to describe a

location the use of which is open to the

public. It does not express a definition

but a conclusion.? The limitations imposed

1. See Karst, Public Enterprise and

the Public Forum: A Comment on South-

eastern Promotions, Ltd. v. Conrad, 37

Ohio St.L.J. ’ e

by the first amendment on the operation

of a medium of communication cannot be

determined by application of the rules

governing freedom of expression in streets

and other areas that by tradition or

design serve as platforms for expression

subject only to reasonable time, place,

and manner restrictions and free from con-

tent control.

The issue directly presented can be

stated simply: whether an individual

viewer has a right to compel a television

station operated by a state agency to

broadcast a single program previously

scheduled by an employee of the agency

that a higher-ranking state official has

decided, because of its content, to can-

cel. This pretermits the factual ques-

tions whether the program was canceled

for what the dissent calls "legitimate

reasons" and whether the official's ob-

jection to the content of the program and

O64

to its political implications was in

either of these cases the sole reason

for canceling "Death of a Princess" or

merely the decisive one. Although these

are not unimportant inquiries, they do

not focus on the crucial issue: how

does the first amendment control state

action when the state is operating a

television station?

Determination of the constitutional

limitations that result because a tele-

vision licensee is a state agency rather

than a private agency must take into ac-

count not only the rights of viewers but

number of other considerations. The li-

cense is federally bestowed. The state

agency licensee has both a statutory

duty to comply wiht the rules and regu-

lations governing the use of its license”

2. 47 U.S.C. § 303; see Red Lion Broad-

casting Co. v. FCC, 395 U.S. 367, 379-

’ oCGe , 1800-01, 23 L.Ed.2d

371, 382-83 (1969).

065

and, like other licensees, > the stat~-

utory right to determine the way in

which it shall fulfill that duty. Those

state employees who are charged with op-

eration of the station, whether high or

low in the managerial hierarchy, may

have some right to free expression, which

may be stronger is, for example, they

function in an academic environment

devoted to freedom of inquiry.> Those

Se See Accuracy in Media, Inc. v. FCC,

521 F.2d 288, 291 (D.C. Cir. 1975), cert.

denied, 425 U.S. 934, 96 S.Ct. 1664, 48

4, See Columbia Broadcasting Sys., Inc.

v. Democratic Nat'l Comm., 412 U.S. 94,

2d 772, 787-88 (1973); 47 U.S.C. § 326;

Note, Broadcast Deregulation and the

First Amendment: Restraints on Private

Control of the Publicly Owned Forum, 55

N.Y.U.L.Rev. 517, 518, 521 (1980).

5. See Bazaar v. Fortune, 476 F.2d 570,

580 (5th Cir.) ("[Wle must take note of

the historical role of the University in

expressing opinions which may well not

make favor with the majority of society

and in serving in the vanguard in the

(footnote continued on following page)

» 066

who want access to the medium in order

not to view and listen but to disseminate

a message must also be considered.

Viewers also have an interest in the

content of programs, not only because

of their “right to see" but also because

the state agency is financed at least

in part by viewers as taxpayers.

These interests are all entitled to

consideration and some or all of them

may be accorded constitutional protec-

tion. Whether a viewer has a right,

therefore, to see a single program that

has been canceled by station management

cannot be determined by focusing only on

(footnote continued from preceding page)

fight for freedom of expression and opin-

ion."), aff'd as modified en banc, 489

F.2d 225 (5th Cir. 1973) (per curiam)

cert. denied, 416 U.S. 995, 94 S.Ct. 2409,

40 L.Ed.2d 774 (1974); Brooks v. Auburn

Univ., 412 F.2d 1171, 1173 (5th Cir. 1969)

("TA school may not stifle dissent because

the subject matter is out of favor. Free

expression is itself a vital part of the

educational process.'") (quoting Ferrell

v. Dallas repo School Dist., 392 F.2d

r. ld, Jee con-

curring) ).

ss OO?

the interests of the viewer.°® The in-

terests of other persons and the function

the state is discharging must also be

considered, for the duties imposed on

the state in connection with its vari-

ous activities depend in part on the

functions served by those activities.

Even the fact that the state is

engaged in television broadcasting does

not fully define the constitutional

limitations on its actions, for such

broadcasting might be designed to

6. See generally Lehman v. City of

sueear wet ghes, 418 U.S. 298, 302-03,

Ct. 2717, 41 L.Ed.2d 770,

777 (1974) (plurality opinion) :

Although American constitutional

jurisprudence, in the light of

the First Amendment, has been

jealous to preserve access to

public places for purposes of

free speech, the nature of the

forum and the conflicting interests

involved have remained important

in determining the degree of pro-

tection afforded by the Amendment

to the speech in question.

- 068

serve differing purposes. Licensing

is not destiny. That the state is the

licensee does not predetermine the sta-

tion's function. The state may elect

the station's mission, so long as this

mission is consistent with the station's

license and the Constitution. The pre-

rogatives of managers, editors, and pro-

grammers, the rights of access of those

who seek exposure, and the rights of

viewers, as well as the prerogatives of

the licensee itself as a state agency,

are at least in large part determined by

this mission.

All, or in other instances a part,

of a station's programs might be de-

voted to providing a medium for the com-

munication of competing views.’ Some

7. Cf. City of Madison Joint School

District v. Wisconsin Emp. Comm'n.,

429 U.S. 167, 175, 97 6 421, 426,

50 L.Ed.2d 376, 384 (1976) ("State has

opened a forum for direct ditizen in-

volvement").

069

channels on cable television networks

and some viewer or listener call-in pro-

grams on television and radio stations

are of this kind. Some television sta-

tions are devoted entirely to educational

purposes, designed solely for pedagogy.

Others may be operated to furnish a varied

menu of entertainment having greater

cultural and educational value than the

programs available on commercial sta-

tions. While the record is not clear,

it appears that the two stations involved

in these cases were of this sort. Neither

station has been shown to have been a

magazine of the air, a forum for all

views, or a dispassionate communicator

on issues of the day. Each appears to

serve instead a diet that differs from

commercial television primarily in

appeal to a somewhat more sophisticated

audience, the absence of commercials,

and efforts to raise funds from viewers.

~- O76

The function of a state agency op-

erating an informational medium is sig-

nificant in determining first amendment

restrictions on its actions. State a-~

gencies publish alumni bulletins, news-

letters devoted to better farming prac-

tices, and law reviews; they operate or

subsidize art museums and theater com-

panies and student newspapers. The

federal government operates the Voice of

America® and Radio Free Europe and

Radio Liberty,”

publishes "journals,

magazines, periodicals, and similar

publications" that are "necessary in the

transaction of the public business, ">°

including newspapers for branches of the

Armed Forces, and pays the salaries

of many federal officials who, like the

8. 22 U.S.C. § 1463 (1976 & Supp. IV

1980).

10. 44 U.S.C. § 1108.

es

President's Press Secretary, communicate

with the public through the media. The

first amendment does not dictate that

what will be said or performed or pub-

lished or broadcast in these activities

will be entirely content-neutral. In

those activities that, like television

broadcasting to the general public, de-

pend in part on audience interest,

appraisal of audience interest and

suitability for publication or broad-

cast inevitably involves judgment of

content. ++

If the state is conducting an ac-

tivity that functions as a marketplace

of ideas, the Constitution requires

ll. A recent article on one of these ac-

tivities, Voice of America, vividly

illustrates this point. Bethell,

Propaganda Warts, Harper's, May 1982, at

IS. Indeed, this article describes

an incident similar to the ones at is-

sue in these cases. Id. at 21.

~ O72

content neutrality. Thus, a state

university may not override editorial

freedom for student newspapers. / If,

however, the state's activity is devoted

to a specific function rather than

general news dissemination or free ex-

position of ideas, the state may regu-

late content in order to prevent ham-

pering the primary function of the ac-

tivity,??

just as it may to some degree

restrict the content of material distri-

buted or displayed on military estab-

12. See Bazaar v. Fortune, 476 F.2d at

573-75; Dickey Vv. Alabama State Bd. of

Educ., ' TSF Supp O13~ S17=18 Tbe

Ala. 1967), vacated as moot sub nom.

Troy State Univ. v. Dickey, 402 F.2d

245 (5th Cir. 1968).

13. See Adderly v. Florida, 385 U.S. 39,

47, B37 s.ct. 747, 247, I7 L.Ed.2d 149,

156 (1966) ("The State, no less than a

private owner of property, has power

to preserve the property under its

control for the use to which it is

lawfully dedicated.").

- 073

14 15

blishments,

16

in prisons, on public

17

buses, or in public hospitals.

All of the opinions in Board of Educ.

v. Pico, U.S. , 102 8.Ct. 2799,

73 L.Ed.2d 435 (1982), recognize such a

distinction either implicitly or express-

18

ly. Justice Brennan's opinion for the

14. Greer v. Spock, 424 U.S. 828, 836-40,

96 §-Ce- Tail Tat6- 18, 47 L.Ed.2d 505,

513-15 (1976); id. at 843, 96 S.Ct. at

1220, 47 L.Ed.2d at 517- 18 (Powell, J.,

concurring).

15. see Jones v. North Carolina Prisoners'

Labor Union, inc., 433 U.S. 119, 134-35,

97 8.ct. 3552, 2542-43, 53 L.Ed.2d 629,

644-45 (1977) .

16. penman Vv. ire of Shaker Hotere!

418 U. ox . t. at -18,

41 L. Ed. 24 at 776- 78.

17. Dallas Ass'n of Community Orgs. for

Reform Now v. Dallas County Hosp. Dist.,

670 F.2d 629, 63l—-32 & Neo (th Cir.

1982) (per curiam) .

18. Seven Justices filed opinions in

Pico. The Court divided four-four on

the constitutional issue of the extent

to which the first amendment limits the

discretion of a school board to remove

books from a school library. Justice

White concurred in the judgment of the

(footnote continued on following page)

- (074

plurality stresses "the limited nature

of the substantive question" presented

by the challenge to a school board's

removal of books from a school library.??

It does not classify the library as a

public forum and emphasizes that the

challenged action "does not involve the

(footnote continued from preceding page)

Court but did not reach this issue. See

enerally Maj. Op. supra, 688 F.2d at

FOLEY 102, n.30.

19. U.S. at , 102 S.Ct. at 2805,

73 L.bd.2d at 443; see id. at , 262

S.Ct. at 2806, 73 L.Ed.2d at 444:

In ‘sum, the issue before as in

this case is a narrow one, both

substantively and procedurally.

It may best be restated as two

distinct questions. First, Does

the First Amendment impose any

limitations upon the discretion

of petitioners to remove library

books from the Island Trees High

School and Junior High School?

Second, if so, do the affidavits

and other eWidentiary materials

before the District Court, con-

strued most favorably to respondents,

raise a genuine issue of fact

whether petitioners might have

. exceeded those limitations?

(Emphasis in original).

~ O76

20

acquisition of books." It postulates

that "all First Amendment rights ac-

corded to students must be construed ‘in

light of the special characteristics of

the school environment ,'"2+ just as, I

submit, the rights of television view-

ers must be construed in the light of

the special characteristics of the tele-

vision medium and the mission of a par-

ticular state-operated television sta-

tion. The plurality opinion turns on

"the unique role of the school library"2?

20. Id. at , 102 S.Ct. at 2805, 73

L.Ed.2d at 444 (emphasis in original).

21. Id. at , 102 S.Ct. at 2808-09,

73 L.Bd.2d at 447 (quoting Tinker v.

Des Moines School Dist., 393 U.S. 503,

’ Ct. ’ , 21 L.Ed.2d

731, 737 (1969); see note 28 and accom-

panying text infra.

22. Id. at , 102 S.Ct. at 2809, 73

L.Ed.2d at 448.

A school library is ... is "a

place dedicated to quiet, to know-

ledge, and to beauty," Brown v.

Louisiana, 383 U.S. 131, 142 [86

S.Ct. 7195, 724, 15 L.Ed.2d 637]

(footnote continued on following page)

~- 076

as distinguished, in particular, from

the determination of school curricula.**

Because the plurality was addressing

only the "suppression of ideas," it could

write without considering "the discretion

of a local school board to choose books

to add to the libraries of their

schools."74

(footnote continued from preceding page)

(1966) (Opinion of Fortas, J.).

Keyishian v. Board of Regents

385 U.S. 5891,003, 07 5. om 675,

684, 17 L.Ed.2d 629] (1967),

observed that "students must al-

ways remain free to inquire, to

study and to evaluate, to gain

new maturity and understanding."

The school library is the prin-

cipal locus of such freedom.

Id. at , 102 S.Ct. at 2809, 73 L.

Ed.2d at 448 (footnote omitted).

23. U.S. at , 102 S.Ct. at

2809, 73 L.Ed.2da at 448.

24. Id. at , 102 S.Ct. at 2810,

73 L.Ed.2d at 450.

077

In his concurring opinion, Justice

Blackmun is willing to say only that

“certain forms of state discrimination

between ideas are improper ."*° He

"“doubt([s) that there is a theoretical

distinction between removal of a book

26 There-

and failure to acquire a book.

fore, he is willing to say only that

"school officials may not remove books

for the purpose of restricting access

to the political ideas or social per-

spectives discussed in them, when that

action is motivated simply by the offi-

cials' disapproval of the ideas in-

volved."*” He also notes that the nature

of the governmental activity at issue is

25. Id. at , 102 S.Ct. at 2814, 73

L.Ed.2d4 at 454 (concurring in part and

concurring in the judgment) (emphasis

in‘original).

26. Id. at n.l, 102 S.Ct. at 2814

n.l., 73 L.EBd.2d at 454 n.1l.

27. Id. at , 102 S.Ct. at 2814,

73 L.Bd.2d at 455 (emphasis in ori-

ginal).

significant in determining to what extent

the first amendment limits government of-

ficials' discretion to regulate speech, 7°

The dissenters do not agree that stu-

dents have a constitutional right to

receive information or that "a school

board [has a duty to] affirmatively

aid [a] speaker in its communication

with the recipient."*? "(T)he ‘right

to receive information and ideas’ ...

does not carry with it the concomitant

right to have those ideas affirmatively

28. See id. at , 102 &.Ct. at 2814,

73 L.Bd.2d at 454;

(T]he unique environment of the

school places substantial limits

on the extent to which official

decisions may be restrained by

the First Amendment values. But

that environment also makes it

particularly important that

some limits be imposed,

(Emphasis in original).

29. Id. at , 102 &.Ct. at 2818, 73

L.Ed.2d at 760° (Burger, C.J., dissenting).

079

provided at a particular place by the

030 In his dissenting opin-

government,

ion, Justice Powell adds: "(T]he new

found right [to receive ideas) finds

no support in the First Amendment pre-

cedents of this Court,"?+

All of the opinions in Pico, there-

fore, seem to support the distinction

between the *pplication of the first

amendment to limitations on the use of

a public forum and the restrictions it

30. Id. at , 102 S.Ct. at 2819, 73

L.Ed.2d at FO (quoting Stanley v.

Georgia, 394 U.S. 557, 564, 89 S.ct.

1243, 1247, 22 L.Bd.2d 542, 549 (1969).

31. Id. at , 102 S.Ct. at 2822, 73

L.Ed.2da at 45; accord, id. at , 102

quist, J., dissenting) ("The right de-

scribed by [Justice Brennan's oerigg oy

Opinion] has never been ar zed in the

decisions of this Court and is not sup-

ported by their rationale."); see id. at

, 102 S.Ct. at 2835, 73 L.Bd.2d at

TSI” (O'Connor, J., dissenting).

- 086.

may impose on governmental action in con-

ducting a particular activity. Whether

the views of the plurality or those of

the dissenters express the constitutional

interpretation that will ultimately be

adopted, Pico seems to endorse the view

that the nature of the activity deter-

mines the strictures the first amend-

ment places on governmental action.

While the Mobile and Houston tele-

vision stations are operated hy state

agencies, neither station is designed

to function as a marketplace of ideas,

a medium open to all who have a mes-

sage, whatever its nature. The staff

of each station had made an initial

programming decision based in part on their

assessment of the content of "Death of

a Princess." Had the initial decision

been not to use the program, the argu-

ment might have been made that this too

was censorship and violated the poten-

-. 061

tial viewers' right to see. If a deci-

sion is initially made at one level to

use a program and is then reversed at a

higher level, the content assessment in-

volved is more apparent, but it is not

necessarily converted thereby from legi-

timate programming into forbidden cen-

sorship.

Judicial reassessment of the propri-

ety of a programming decision made in

operating a television station involves

not only interference with station man-

agement but also reevaluation of all

of the content-quality~audience reac-

tion factors that enter into a deci-

sion to use or not to use a program by

a medium that cannot possibly, by its

very nature, accommodate everything

that every viewer might desire. With

deference to the dicta observations

made in the Pico plurality opinion, our

reexamination of such a decision cannot

- 082

logically be confined to occasions when

higher officials overrule subordinates.

If it is forbidden censorship for the

higher official to cancel a program, it

is equally censorship for the lower of-

ficials to decide initially to reject a

program,

The Constitution is categoric but it

does not command the theoretical. The

state's discretion is confined by the

functions it may perform as a broadcast

licensee, and the purpose to which it

has dedicated its license. Moreover,

these cases involve only one program,

not a licensee policy or practice of,

for example, favoring only one political

party, or of broadcasting racially or

religiously discriminatory views. >?

32. See Board of Educ. v. Pico,

U.S. 102 S.Ct. at 2810, 73 LD Ed.

24 at 44> (plurality opinion) ; id. at

, 102 S.Ct. at 2813, 73 L.Ed.2d at

453 (Blackmun, J., concurring in part

(footnote continued on following page)

083

Néither complaint even alleges that

either station has a policy of cur-

tailing access to ideas. Each seeks

only to compel the defendant station to

show a single program. Judicial inter-

vention might be required if these or

other licensees should adopt or follow

policies or practices that transgress

constitutional rights. But, one call,

even if it is ill-advised, does not

constitute a policy or practice, and

judicial intervention does not appear

required or warranted for a single pro-

gramming decision.

For these reasons, although I cannot

agree with all of the majority opinion,

particularly its discussion of the ap-

plication of the public forum doctrine,

I concur in the result.

(footnote continued from preceding page)

and concurring in the judgment); id. at

, 102 S.Ct. at 2827, 73 L.Ed.2d at

470 (Rehnquist, J., dissenting).

084

KRAVITCH, Circuit Judge, dissenting:

I agree with the analysis in Judge

Johnson's thorough and well-reasoned

dissent, with one exception: his state-

ment that the government's decision to

withdraw a program becomes presumptively

unconstitutional once a plaintiff has

shown that the decision was made because

of the program's “substantive content.”

In my view, in addition to "substantive

content," there must be shown an improper

motivation, an intent to "restrict[] ac-

cess to the political ideas or social

perspectives discussed ...." Board of

Education v. Pico, U.S. ’ ’

102 S.Ct. 2799, 2814, 73 L.Ed.2d 435

(1982) (Blackmun, J., concurring). In

this regard I agree with Judge Reaviey.

I do not join Judge Reavley's dissent,

however, because his standard suggests

that intent to suppress must be the

sole factor before the withdrawal vio-

- 085

lates the First Amendment. The Pico :

plurality explicitly stated that an

improper motive is a "decisive factor"

and makes the withdrawal unconstitutional

if it is a “substantial factor." Id.

at —s—s & n.22, 102 S.Ct. at 2809,

2810 & n.22 (plurality opinion of

Brennan, J., Marshall, J., and Stevens,

J.). The improper motivation need not

be the only factor in the withdrawal de-

cision. For these reasons I write sep-

arately.

FRANK M. JOHNSON, Jr., Circuit Judge,

with whom HATCHETT, ANDERSON, TATE and

THOMAS A. CLARK, Circuit Judges, join,

dissenting.

I dissent because I am convinced

that the majority has committed a ser-

ious error in applying the law to these

cases. The clearly defined issue in

these appeals is whether the executive

officers of a state operated public tele-

- 086

vision station may cancel a previously

scheduled program because it presents

a point of view disagreeable to the reli-

gious and political regime of a foreign

country. The majority opinion permitting

cancellation on these grounds flies

completely in the face of the First Amend-

ment and our tradition of vigilance

against governmental censorship of poli-

tical and religious expression.

Death of a Princess is a dramatiza-

tion of one man's investigation of the

circumstances and motives which led to

the July 1977 execution of a Saudi

Arabian princess and her lover for adult-

ery. The film presents narrative and

recreated interviews which examine the

religious, cultural, ard political

hierarchy of Saudi Aeebien society.

Death of a Princess is directly criti-

cal of many aspects of the Saudi regime,

including the government's enforcement

- 087

of religious and cultural proscriptions.

The Saudi government reacted strongly

to the production and distribution of

Death of a Princess. After the film was

shown in Great Britain, Saudi Arabia

temporarily recalled its ambassador in

protest. The Saudis again evidenced

strong displeasure when. PBS scheduled

the film for broadcast in May 1980 as

part of its World series.

The record in Muir reveals that

during the period immediately preceding

the May 12 air date the Alabama Educa-

tional Television Commission received

numerous telephone calls expressing

concern over the scheduled telecast

of Death of a Princess.* William Harbert of

1. The district court in Muir entered

its orders denying the preliminary in-

junction and granting defendants’ motion

for summary judgment in this case with-

out benefit of oral evidence and on the

basis of very limited discovery. Assum-

ing that the court did not abuse its dis-

(footnote continued on following page)

- 0868

Harbert Construction Company, an Ala-

bama firm with substantial Saudi and

Middle Eastern business, along with a

representative of the Birmingham Area

Chamber of Commerce, personally con~

tacted Henry Bonner, program manager

of the Alabama Educational Television

Commission, to express their concern

regarding the proposed broadcast. On

May 9th Bonner reported these conver-

sations and the fact of the telephone

calls to Edward Wegener, general manager

(footnote continued from preceding page)

cretion in denying the preliminary in-

junction, the issue of summary judgment

remains. In reviewing the appropriate-

ness of summary judgment this Court must

view the facts in the light most favor-

able to the nonmoving party to deter-

mine (i) whether there is a genuine is-

sue as to any material fact, and (ii)

whether the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.

P. 56 (c); Northeast Ga. Radiological As-

sociates, P.Cc. Vv. Tidwell, 670 F.od 507,

onlin v. Bias,

;

631 F.2a 1235, 1237 (

089

Of The Alabama Educational Television

Commission, who in turn contacted Jacob

Walker, Chairman of the Alabama Educa-

tional Television Commission,

Walker scheduled a telephone confer-

ence with the other commissioners for

later in the day. At some point,

Walker spoke directi}y with Harbert, who

supplied him with most or all of the

facts relied on by the commission in

reaching its conclusion that "broadcast

of the program could expose Alabama cit-

izens in the Middle East to physical and

emotional abuse through rioting, physical

assault and property damage." The plain-

tiffs unsuccessfully maintained that the

decision "was one made out of political

considerations." (R. at 96.)

The district court in Barnstone

found that Dr. Patrick Nicholson, Vice

President for Public Information and Uni-

versity Relations of the University of

0s0

Houston, unilaterally decided to pre-

vent broadcast of Death of a Princess

on the University operated television

station, KUHT-TV. Barnstone v. University

of Houston, 514 F.Supp. 670 (S.D. Tex.

1980). Nicholson, who had never made a

programming decision in his 17 years'

tenure : and who was opposed in his

decision to cancel the scheduled pro-

gram by the station's programming director

and eventually by the general manager of

KUHT-TV, cited as his reason the "strong

and understandable objections by the govern-

ment of Saudi Arabia." Id. at 674. While

Dr. Nicholson testified that he feared

the broadcast might "exacerbate the sit-

uation in the Middle East," the court

found that he was "entirely unable ... to

explain what he meant by this phrase ...."

Id. at 691.

- 094

The majority of this Court--now in

the twilight of its long and honorable

existence’=-has affirmed Muir and re-

versed Barnstone in an opinion which

grants state authorities unlimited dis-

cretion to regulate the content of public

television within their control. Because

state law and FCC licensing grant defend-

ants full broadcasting authority over

these stations in their respective areas,

2. By Public Law 96-452, 94 Stat. 1994,

effective October 1, 1981, the United

States Congress divided the Fifth Cir-

cuit Court of Appeals into two new auto-

nomous circuits--the new Fifth Circuit

and the Eleventh Circuit. The cases now

under consideration, as required by the

Act, are being considered by the judges

of the former Fifth Circuit as if the

legislation dividing the circuit "had

not been enacted." Pub. Law 96-452

§ 9(3). Thus, having been established

Congress in 1891 as one of the ori-

ginal Circuit Courts of Appeals, the

Fifth Circuit is indeed in its twilight.

092

the majority's decision confers unre-

stricted control over a monopoly market.

See Ala. Code §§ 16-7-1-5; Barnstone v.

University of Houston, supra, 514 F.

Supp. at 672-73, 680. By finding no

other restriction on state operated tele-

vision than that imposed by federal regula-

tion, the Court has elevated "the Com-

munications Act above the Constitution."

Barnstone, supra, 514 F.Supp. at 686.

Moreover, the Court has abdicated its

duty in an area in which the plaintiffs

have no comparable remedy.

The freedom of expression protected

by the First Amdndment encompasses the

rights of both speakers and listeners.

CBS, Inc. v. FCC, 453 U.S. 367, 101 S&S.

Ct. 2813, 2829, 69 L.Ed.2d 706 (1981);

FCC v. Nat'l Citizens Committee for

Broadcasting, 436 U.S. 775, 800, 98

§.Ct. 2096, 2114, 56 L.Ed.2d 697 (1978);

First Nat'l Bank of Boston v. Bellotti,

- 093

435 U.S. 765, 776-77, 98 §.Ct. 1407,

1415-1416, 55 L.Ed.2d 707 (1978);

Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Coun., Inc.,

425 U.S. 748, 756, 96 S.Ct. 1817,

1822, 48 L.Ed.2d 346 (1976); Columbia

Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94, 102,

93 S.Ct. 2080, 2086, 36 L.Ed.2d 772

(1973); Kleindienst v. Mandel, 408 U.S.

753, 762-63, 92 S.Ct. 2576, 2581-82,

33 L.Ed.2d 683 (1972); Red Lion Broad-

casting Co. v. FCC, 395 U.S. 367, 386-

90, 89 S.Ct. 1794, 1804-1807, 23 L.Ed.2d

371 (1969); Stanley v. Georgia, 394 U.S,

557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.

2d 542 (1969); Lamont v. Postmaster

General, 381 U.S. 301, 305-07, 85 S.Ct.

1493, 1495-1497, 14 L.Ed.2d 398 (1965).

As the Supreme Court unanimously held

in Red Lion, supra:

~ 094

It is the right of the viewers and

listeners, not the right of the

broadcasters which is paramount.

It is the purpose of the First

Amendment to preserve an unin-~

hibited marketplace of ideas in

which truth will ultimately pre-

vail, rather than to countenance

monopolization of that market,

whether it be by the Government

itself or a private licensee.

It is the right of the public

to receive suitable access to

social, political, esthetic,

moral, and other ideas and ex-

periences which is crucial here.

That right may not constitu-

tionally be abridged ....

395 U.S. at 390, 89 S.Ct. at 1806 (cita-

tions omitted). The proper inquiry for

this Court, then, should not be whether

the Communications Act grants state

broadcasters editorial discretion, but

whether the action of state officials

in these cases abridged free expression

protected by the First Amendment. See

Bellotti, supra.

Our system of constitutional pro-

tection clearly reflects that government

may not restrict the free discussion of

- 095

public issues on the basis of the poli-

tical, religious, or ideological content

of the message. Fxzeedom of expression

concerning public issues "is at the heart

of the First Amendment's protection."

First Nat'l Bank of Boston v. Bellotti,

supra, 435 U.S. at 776, 98 S.Ct. at 1415;

Mills v. Alabama, 384 U.S. 214, 218,

86 S.Ct. 1434, 1436; 16 L.Ed.2d 484

(1966); Garrison v. Louisiana, 379 U.S.

64, 74-75, 85 S.Ct. 209, 215-216, 13

L.Ed.2d 125 (1964) ("speech concerning

public affairs is more than self-expres-

sion; it is the essence of self-govern-

ment"). Self-government suffers when

those in power suppress competing views

on public issues. Bellotti, supra, 435

U.S. at 777 n.12, 98 S.Ct. at 1416 n.12.

As a result, federal courts have con-

sistently struck down content-based

restrictions on the discussion of public

issues. Carey v. Brown, 447 U.S. 455,

O36

100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)

(statute which prohibited all peaceful

picketing except for labor pickets

impermissibly discriminated between

lawful and unlawful activity on the

basis of the content of the demon-

strator's communication); First Nat'l

Bank of Boston v. Bellotti, supra, (stat-

ute which prevented corporate. expression

on tax issue); Virginia State Board of

Pharmacy v. Va. Citizens, supra, (inval-

idating prohibition on dissemination of

over-the-counter drug prices); Police

Dept. of the City of Chicago v. Mosley,

408 U.S. 92, 95-96, 92 S.Ct. 2286,

2289-90, 33 L.Ed.2d 212 (1972) (inval-

idating picketing ordinance which per-

mitted labor picketing); Mills v.

Alabama, 384 U.S. 214, 86 S.Ct. 1434,

16 L.Ed.2d 484 (1966) (invalidatine pro-

hibition against discussion of politi-

cal candidates on the last day of the

- 097

campaign); Lamont v. Postmaster General,

gupra, (unjustifiable burden on the ad-

dressee's First Amendment rights to “e-

quire that intended recipient of "com-

munist" material affirmatively request

that it be delivered); see Board of

Educ. v. Pico, . U.S. P , 102

S.Ct. 2799, 2810, 73 L.Ed.2d 435 (1982)

(plurality) ("({L]ocal school boards may

not remove books from school library

shelves simply because they dislike the

ideas contained in those books and seek

by their removal to ‘prescribe what

shall be orthodox in politics, national-

ism, religion, or other matters of opin-

ion.'") (quoting West Virginia v.

Barnette, 319 U.S. 624, 642, 63 S.Ct.

1178, 1187, 87 L.Ed. 1628 (1943)).

This Court held in Bazaar v. Fortune,

476 F.2d 570, 574, aff'd as modified en

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

cert. denied, 416 U.S. 995, 94 S.Ct.

- 088

2409, 40 L.Ed.2d 774 (1974), that once

the state recognizes an activity which

has elements of free expression it

must operate the activity in accord with

First Amendment principles. In Fortune

this Court affirmed an order restraining

University of Mississippi officials from

interfering with the publication of a

university sponsored literary magazine

they considered controversial. The Court

held in Brooks v. Auburn University, 412

F.2d 1171 (5th Cir. 1969), that the

state university unconstitutionally

abridged the First Amendment rights of

disappointed listeners when Auburn's

president withdrew a speaking invita-

tion extended to the Reverend William

Sloan Coffin, then Chaplain of Yale

University, because of concern over

what Reverend Coffin might speak about.

The law is clear in this nation and up

until now in this Circuit that once the

- 099

government establishes a particular

medium for the expression of different

viewpoints it may not later intervene

for the purpose of eliminating unpop-

ular views. The law as I read and under-

stand it has never condoned censorship

in the name of editorial discretion.

See, e.g., Board of Educ. v. Pico,

supra, U.S. at , 102 S.Ct. at

2814 (Blackmun, J., concurring) ("({OJur

precedents command the conclusion that

the State may not act to deny access to

an idea simply because state officials

disapprove of that idea for partisan

or political reasons.") (footnote omitted).

The majority opinion completely

ignores the critical issue in these

cases by concluding that "[t]Jhe state

officials in charge of AETC and KUHT-TV

have simply exercised their statutorily

mandated discretion and decided not to

show a particular program at a particu-

- 160

lar time." The very simple answer to

that position is that FCC regulation is

designed neither to preempt judicial

scrutiny nor to redress state censorship

as alleged in these cases.

Federal regulation of the broadcast

media, for the most part, reflects the

government's attempt to balance the allo-

cation of a scarce resource with the First

Amendment interests of private broad-

casters and the public. See Red Lion

Broadcasting Co. v. FCC, supra, 395 U.S.

at 386-392, 89 S.Ct. at 1804-1808; CBS,

Inc. v. Democratic Nat'l Comm., supra,

412 U.S. at 103-114, 93 S.Ct. at 2086-

2092. The fact that state operated tele-

vision stations are entitled to exercise

editorial discretion, however, does not

absolve them of their First Amendment

responsibilities. "The First Amendment

protects the press from governmental

interference; it confers no analogous

- 101

protection on the Government." CBS, Inc. |

v. Democratic Nat'l Comm., 412 U.S. at

139, 93 S.Ct. at 2104 (Stewart, J., con-

curring) (emphasis in original); Red Lion

Broadcasting Co. v. FCC, 395 U.S. at 390,

89 S.Ct. at 1806 (First Amendment pro-

tects against governmental monopolization

of the free marketplace of ideas). The

majority commits fundamental error when

it permits state broadcasters to ride

on the coattails of their private counter-

parts. Even when the majority admits

that state broadcasters "are without

the protection of the First Amendment,"

it offers no principled reason why this

“implies only that government could

possibly impose restrictions on these

licensees which it could not impose

on private licensees."

In addition, while it is true that

the FCC hears complaints similar to

those raised in these cases, it is also

+ 102

true that the FCC routinely denies relief.

A brief review of the cases cited by the

majority reveals that the FCC steadfastly

refuses to depart from its "longstanding

policy of deferring to licensee discre-

tion." Right to Life, Inc. v. WAVE-TV,

59 F.C.C.2d 1103 (1976). As the FCC it-

self has stated, the Commission "is pro-

hibited by the First Amendment to the Con-

stitution and Section 326 of the Comnuni-

cations Act of 1934 ... from censoring

broadcast material, and it does not at-

tempt to direct licensees in the selec-

tion or presentation of specific material."

KMAP, Inc., 72 F.C.C.2d 241, 244 (1979):

[B]ecause of the sensitive First

Amendment considerations involved,

the Commission must strike a

delicate balance between ensur-

ing that licensees operate in

the public interest and avoid-

ing unnecessary interference

in their programming decisions.

Thus, the Commission has made

clear that both the responsi-

bility for and discretion in the

selection of broadcast material

rests with licensees.

~- 106

Id.; RKO General, Inc., 46 F.C.C.2d 240,

244 (1974). In its pursuit of the public

interest the FCC routinely defers to li-

censee “discretion as to the manner in

which a controversial issue is to be

covered, including such matters as appro-

priate spokesman and program format."

William Harsha, 31 F.C.C.2a 847 (1971).°

In order for the FCC to take adverse

action against a broadcaster for suppress-

ing a particular viewpoint, the petitioner

"must present substantial extrinsic evi-

dence of intentional and specific inci-

3. Although a controversy arose over

the broadcast of Death of a Princess, it

does not appear that the program itself

dealt with a controversy within the

meaning of the fairness doctrine. See

RKO General, Inc., 46 F.C.C.2d 240, 243

(1974).

~- 104

dents" of suppression. KMAP, Inc., supra,

72 F.C.C.2d at 244; Citizens Communications

Center, 25 F.C.C.2d 705, 707 (1970) (evi-

dence must firmly establish discriminatory

policy inconsistent with the public in-

terest); see Stone v. FCC, 466 F.2d 316,

322 (D.C. Cir. 1972) (court defers to

expertise and experience of commission

and will reverse grant of application

only if commission's position is arbitrary,

capricious, or unreasonable) ,4 Complaints

4. The substantial quantum of proof a

petitioner must produce in order to per-

suade the FCC to deny a state broadcaster's

license is clearly illustrated in Alabama

Educational Television Commission, 50 F.

C.C.2d 461 (1975). After finding over-

whelming evidence of "serious misconduct

involving discriminatory programming prac-

tices and an all but complete failure to

serve the needs of Alabama's black resi-

dents" the Commission declined to renew

the AETC's license. 50 F.C.C.2d at 477.

In rendering its decision, the FCC em-

phasized the practically uncontroverted

evidence of AETC's racially discriminatory

policies. "The systematic exclusion of

blacks and of programming designed to

serve their distinctive interests is

(footnote continued on following page)

- 105

regarding individual cancellation deci-

sions are regularly denied. E.g.',

Right to Life of Louisville, Inc., 59

F.C.C.2d 1103 (1976); RKO General, Inc.,

46 F.C.C.2d 240 (1974); William Harsha,

31 F.C.C.2d 847 (1971); Citizens Com-

munications Center, 25 F.C.C.2d 705 (1970).

thus demonstrated by the substantial evi-

dence adduced by petitioners that blacks

rarely appeared on AETC programs; that no

black instructors were employed in connec-

tion with locally-produced in-school pro-

— and that unexplained decisions or

neonsistently applied policies forced the

pre-emption of almost all black-oriented

network programming." Id. at 469. The

Commission cautioned, however, that

"[a]Jny one of these decisions [to cancel

black-oriented programs], taken by itself,

might be reasonably regarded as a valid

exercise of a licensee's discretion as

to scheduling or program content." Id.

In taking action the FCC acknowledged that

it had refrained from imposing the same

sanctions on AETC that it would have im-

posed on a private broadcaster on account

of the considerable deference the Commis-

sion traditionally afforded state auth-

ority. See Puerto Rico Telephone Co.,

47 F.C.C.2d 1166 (1974).

~ 106

Thus it is clear that the majority's

deference to the FCC in these cases that

present important constitutional questions

amounts to nothing more than "... a promise

to the ear ... “ which will most certainly

be broken "to the hope." See Cuthbert

v. United States, 278 F.2d 220 (5th Cir.

1960). Relying on the system of FCC regu-

lation, the majority has granted state

broadcasters immunity from constitutional

scrutiny. There is nothing, however, in

the Communications Act or in the system

of FCC regulation which prevents judicial

scrutiny. On the contrary, the Supreme

Court has recognized the need for vigi-

lance in the face of governmental regula-

tion. See, e.g., Red Lion, supra, 395

U.S. at 390, 89 S.Ct. at 1806; CBS, Inc.

v. Democratic Nat'l Comm., 412 U.S. at

104-05, 93 S.Ct. at 2087-88. To rely on

FCC regulation is to create a substantial

gap in the protection of First Amendment

~- 107

interests. Because the FCC does not dis-

tinguish between private and public broad-

casters in its regulation of the airwaves,

see City of New York Mun. Broadcasting

System, 56 F.C.C.2d 169 (1975), it pro-

vides no protection from the kind of

state censorship alleged in these cases.

The concurring opinions of Judges

Rubin and Garwood erroneously suggest

that official censorship may only be

found when the state operates a medium

which is “content neutral," see, e.g.,

City of Madison Joint School Dist. v.

Wisconsin Emp Rel. Com'n, 429 U.S. 167,

175, 97 S.Ct. 421, 426, 50 L.Ed.2d 376

(1976), or which is a “public forum."

E.g., Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43

L.Ed.2d 448 (1975). In all other cases,

the concurrences suppose, the state must

be given unbridled authority to discrim-

inate among different viewpoints, even if

~ 108

the state chooses to suppress a particu-

lar point of view solely on the basis of

the political, ideological, or religious

content of the message. Otherwise, the

opinions caution, any citizen would have

the "right" to force the state operated

televisions in this case to broadcast

any program of his choosing.

These suppositions erroneously ig-

nore the proper considerations a Court

may give the editorial process, as demon-

strated by this Court's previous exper-

ience. For example, the issue presented

to this Court in Bazaar v. Fortune, supra,

a case relied on to some extent by Judge

Rubin, was not whether the University of

Mississisippi's literary magazine was

“content neutral" or whether any student

had the "right" to force the English

Department and its student editors to

publish any given article or short story.

The issue in Fortune was whether the Uni-

109

versity chancellor could prevent the

distribution of the magazine because

one of its short stories contained "in-

appropriate" materials criticizing con-

temporary race relations. 476 F.2d at

572-73. See Dickey v. Ala. State Bd. of

Educ., 273 F.Supp. 613, 618-19 (M.D. Ala.

1967), vacated as moot sub nom. Troy State

Univ. v. Dickey, 402 F.2d 515 (5th Cir.

1969) (district court order recognizing

restrictions on the editorial operation

of a school newspaper but finding ban on

criticism of the Governor an unreasonable

restriction). Similarly, in Brooks v.

Auburn, supra, the issue before this

Court was not whether the speakers’ com-

mittee was forced to disregard all guide-

lines in selecting a speaker or whether

any given student had the "right" to

name the next speaker who was to be in-~

vited to the University. The issue in

Brooks was whether the University presi-

ame

dent could effectively censor the politi-

cal viewpoint of a previously chosen

speaker by refusing to authorize payment

of his expenses. 412 F.2d at 1172. In

Brooks, as in Fortune, this Court concen-

trated on the particulars of the alleged

censorship decision in the context of the

existing editorial format. It was not

necessary for the Court to find a "content

neutral" or “open forum" setting in order

to evaluate the claim of official censor-

ship.

In the recent case of Board of Educ.

v. Pico, U.S. , 102 §.Ct. 2799,

73 L.Ed.2d 435 (1982), both the plurality

and Justice Blackmun recognized the pre-

sence of enforceable First Amendment

rights, even within the context of a

highly discretionary state function. As

Justice Blackmun wrote, concurring: "In

my view, we strike a proper balance here

by holding that school officials may not

++ Jil

remove books for the purpose of restrict-

ing access to the political ideas or

social perspectives discussed in them,

when that action is motivated simply by

the officials' disapproval of the ideas

involved." Id. at __, 102S.Ct. at

2814 (Blackmun, J., concurring). Unlike

Judges Hill and Rubin, I find allegations

of censorship in the context of state

operated television broadcasting entitled

to much greater scrutiny than similar

allegations involving school board regula-

tion of students’ reading material. Public

television stations "provide educational,

cultural, and discussion programs which

serve the general community." Senate

report to the Public Broadcasting Act of

1967, 47 U.S.C.A. §§ 390-399, S.Rep. No.

222, 90th Cong., lst Sess., reprinted ‘in

1967 U.S. Code Cong. & Ad. News 1772, 1782.

AETC is specifically charged with the

duty “of making the benefits of educational

~. 132

television available to and promoting

its use by inhabitants of Alabama ...."

Ala. Code § 16-7-5. Viewed in the con-

text of these stations' purposes and the

framework of existing regulation, the

editorial discretion of a state broad-

caster is more circumscribed than that of

a school board member. Moreover, the

facts of both Muir and Barnstone reveal

dramatic departures from established edi-

torial practice in direct response to the

urgings or implied threats of a foreign

government.

Finally, the concurring opinions

would appear to recognize official cen-

sorship by state television broadcasters

when that censorship is conducted as a

"policy or practice" of the state.

Neither opinion, however, advances a prin-

cipled distinction between censorship

which is a "policy or practice" and that

which is an individual overt act of sup-

«33S

pression. It is clear to me that the

First Amendment does not prohibit censor-

ship only when it reaches the level of

state "policy." To do so would be to

allow the state to abrogate the funda-

mental concept of individual civil liber-

ty. See, e.g., Pickering v. Board of

Educ., 391 U.S. 563, 574-75, 88 S.Ct. 1731,

1737-38, 20 L.Ed.2d 811 (1968).

It is the judiciary which is the ul-

timate arbiter of the fundamental rights

involved in these cases.” Courts may not

5. The very purpose of a Bill of

Rights was to withdraw certain

subjects from the vicissitudes

of political controversy, to

place them beyond the reach of

majorities and officials and

to establish them as legal prin-

ciples to be applied by the

courts. One's right to life,

liberty, and property, to free

speech, a free press, freedom of

worship and assembly and other

fundamental rights may not be

submitted to vote; they depend

on the outcome of no elections.

West Virginia State Board of Education v.

(footnote continued on following page)

+> ee

abdicate their duty by reference to a

system of administrative regulation, or

because they would prefer that the plain-

tiffs take their complaints elsewhere.

We must review the allegations of state

censorship in the context of television

broadcasting according to applicable

legal standards. The standard for eval-

uating the allegations of abridgement in

these cases must be that which was arti-

culated in Mt. Healthy School Dist. v.

Doyle, 429 U.S. 274, 287, 97 S.Ct. 568,

576, 50 L.Ed.2d 471 (1977). Once the

plaintiff demonstrates that the govern-

ment has silenced a message because of

its substantive content, the government's

decision becomes presumptively uncon-

(footnote continued from preceding page)

Barnette, 319 U.S. 624, 638, 63 S.Ct.

II78, 1185, 87 L.Ed. 1628 (1943); see

Wesberry v. Sanders, 376 U.S. l, 17-18,

Ct. ’ oT 5, 11 L.Ed.2d 481

(1964).

~» 115

stitutional. The government should then

be allowed to demonstrate that it would

have taken the same action on the basis

of legitimate reasons. Finally, the

plaintiff should be given a full oppor-

tunity to refute the government's asser-

tion.

Because of the importance of the

values at stake, and the ability of the

defendant usually to offer a colorably

permissible reason for its actions, the

trier of fact must critically examine

the asserted rationale for the defendant's

conduct. In Bazaar v. Fortune this Court

rejected defendants’ assertion that they

were attempting to prevent the publication

of a literary magazine because it contained

obscenities when no action had been taken

against similar writings found in the

university library or on students' re-

quired reading lists. 476 F.2d at 578-

eter

79.° Similarly, in Brooks v. Auburn, the

Court rejected defendants’ assertion that

lawlessness would result from a speaker's

engagement when defendants were unable

to present suitable facts of potential

reaction, 412 F.2d at 1173. In addition,

the trier of fact must weigh the ration-

ale for action with the extent of the

action taken. An absolute ban on a parti-

cular program would require a stronger

showing of justification than would a

temporary withholding of the broadcast.

6. As this Court concluded in Fortune:

"... [W]e can only reiterate

that speech cannot be stifled

by the state merely because it

would perhaps draw an adverse

reaction from the majority of

people, be they politicians or

ordinary citizens, and news-

papers. To come forth with such

a rule would be to virtually

read the First Amendment out of

the Constitution and, thus, cost

this nation one of its strong-

est tenets.

476 F.2d at 579.

+. 117

No one would doubt that "broadcast

media pose unique and special problems

not present in the traditional free

speech case." CBS, Inc. v. Democratic

Nat'l Comm., 412 U.S. at 101, 93 S.Ct.

at 2086. The course of these cases amply

demonstrates that proposition. The solu-

tion, however, is neither to deny the

existence of constitutional rights nor to

abdicate judicial responsibility. The

solution is to face the problems squarely

and resolve the issues accordingly.

The plaintiffs in Muir and Barnstone

have made serious allegations of state

censorship which the defendants have at-

tempted to refute. Muir comes to us

without benefit of a full hearing. The

district court in Barnstone made sub-

stantial findings yet considered the

evidence in light of an incorrect legal

«- 118

standard. ’ I would remand both cases for

redetermination in light of the correct

legal standard and burden of proof.

7° Judge McDonald found that KUHT-TV

was a public forum and concluded that

"decisions not to show programs on it

may be challenged as prior restraint."

514 F.Supp. at 689. Evaluating the

evidence accordingly, the court found

that defendants' explanation for can-

celling the program was “unacceptable

as a matter of law." Id. at 691. Asa

result, it is not possible to determine

how the district court would have evalu-

ated the evidence in light of the Mt.

Healthy standard.

- 119

REAVLEY, Circuit Judge, dissenting:

I cannot join the majority or con-

curring opinions for the reason that

each of these television stations does

far more than transmit expressions of the

state. Our desire to free non-profit

public broadcasting from judicial inter-

ference is no justification for pretend-

ing that the state is not relaying mess-

ages into the idea marketplace. I must

conclude that the state encounters the

First Amendment requirement of neutral-

ity for reasons generally discussed in

my Original panel concurrence. Barnstone

v. University of Houston, KUHT-TV, 660

F.2d 137, 138 (Sth Cir. 1981).

On the other hand, I would not go so

far as Judge Johnson does to make the

state's decision presumptively unconsti-

tutional whenever a program is not shown

"because of its substantive content."

State operated television stations should

+ 120

be given more latitude, even to choose

on the basis of substantive content, in

their program selection. They should

be entitled to pursue excellence, to

build viewing audiences, to respond to

what viewers want, and to consider the

effect of their programs upon that

audience. Bona fide programming decisions

would not, for me, violate the First Amend-

ment neutrality. Only if the decision to

show or not to show were based upon view-

point alone, in juxtaposition to the per-

sonal viewpoint of the programming authority

or state superiors, entirely aside from

any Opinion as to program value or effect,

would I regard neutrality abused and court

action justifiable.*

* The recent opinion of a plurality of

the Supreme Court in Board of Educ. v.

Pico, U.S. , 102 S.Ct. 2799, 73

L.Ed.2d 435 (1982), supports the analysis

offered here and in my separate opinion

in Barnstone. The plurality reaffirmed

that government action intended to sup-

press viewpoints with which the government

(footnote continued on following page)

t. 121

(footnote continued from preceding page)

disagrees offends the First Amendment,

and also confirmed the distinction be-

tween "content" discrimination and "view-

point" suppression which I offer here.

[Government officials] rightly

possess significant discretion

to determine the content of their

school libraries. But that

discretion may not be exercised

in a narrowly partisan or poli-

tical manner .... Our Consti-

tution does not permit the of-

ficial suppression of ideas.

Thus whether petitioners’ re-

moval of books from their school

library denied respondents

their First Amendment rights

depends upon the motivation

behind petitioners' actions.

If petitioners intended by

their removal decision to deny

respondent ‘access to ideas

with which petitioners disagreed,

and if this intent was the deci-

sive factor in petitioners'

decision, then petitioners have

exercised their discretion in

violation of the Constitution.

U.S. , 102 S.Ct. at 2810 (foot-

note omitted) (citing Mt. Healthy: ae

Board of Educ. v. Doyle, U.S.

287, 97 S.Ct. 500, 345 50 L.Ed.2d 471

(1977) ; compare Barnstone, 660 F.2d at

141 « n.Il becnouretne opinion).

Moreover, for the reasons I have already

explained, see 660 F.2d at 141 n.9, I

_ believe that the factual differences

’ between this case and Pico make this an

“even stronger case for the poet pony Fong

. Of the First Amendment.

-- 122

GARWOOD, Circuit Judge, concurring:

I concur in the majority opinion, and

append these remarks only to point up two

additional interrelated matters I believe

significant.

First, plaintiffs are not attacking

governmental "public" broadcasting as

such. Nor do they seek to require its

operation to be on a pure "open forum"

basis--like an empty stage available to

all comers--where each citizen can cause

the broadcast of his or her program of

choice, with the inevitable selectivity

determined by completely content neutral

factors such as lot, or first come first

served or the like.? Rather, plaintiffs

seek to become a part of governmental

"public" broadcasting essentially as it

l. Nor do plaintiffs claim that they

were denied any right or privilege

which the stations granted any other

citizen similarly situated.

+ 128

is, except they want it to broadcast

this particular program of their choice,

However, there is simply no way for

them--together with all others who

might wish to assert similar rights for

their favorite "dramatization"--to

become a part of such "conventional"

(as distinguished from pure "open forum")

governmental broadcasting except on the

basis of governmental selection of the

individual programs.

As the majority opinion convincingly

demonstrates, in television broadcast-

ing not only is selection inevitable, but

it is likewise inevitable that in num-

erous instances it will be largely based

on factors that are not content neutral

and on considerations that involve

sympathy for or hostility to the pro-

gram's “mess=qge" on the part of the

~ 124

party having the power of selection.”

This is not to say that program selec-

tion influenced by "message" sympathy

or hostility on the part of governmental

television stations is a desirable phen-

omenon, or even one which is wholly con-

sistent with the values underlying the

First Amendment. But such a character-

istic is part and parcel of the operation

of the conventional (not pure "open for-

2. In my view, the level at which a par-

ticular television programming decision

is made, just as the question of whether

it is made by failure to initially select

or by cancellation, is relevant here only

in the sense of possibly being evidentiary

of whether the decision is made on the

basis of sympathy for or hostility to the

program message or for some similar "po-

litical" tyne reason. In the context of

these governmental stations broadcasting

to the general public, I do not think it

is of constitutional significance that

the "sympathy" or “politics” influencing

the decision is that of the program

director or the university public affairs

director or the station board of directors,

when all are acting as governmental

personnel.

~~ 125

um") governmental television stations of

which plaintiffs seek to avail themselves.

They are not entitled to have a special

exception made in their favor so that for

this particular program they are entitled

to make the selection and require that

these conventionally operated govern-

mental stations broadcast it.

In contrast to a pure "open forum"

system where diverse individual members

of the public (and perhaps third-party

producers) in effect select the programs

and may be considered the speakers, in

conventional broadcasting the power of

selection rests with the station (or

party controlling it) and bn substance

it is the speaker. Where a governmental

- unit controls a conventionally operated

station, it is the speaker and speaks

either in its corporate capacity or as

a kind of proxy for the full body of its

citizens. In an isolated instance, to

+. 126

grant an individual the right to require

such a station to broadcast a particular

program merely because the station re-

jected it for "political" type considera-

tions, is, in effect, to force the gov-

ernmental unit--in either its corporate

or more general representative capacity~--

to speak in a certain way and to forego

other speech it would have engaged in.

To grant such a right on a consistent

and thorough basis is to necessarily

transform the station into one operated

essentially on an "open forum" basis.

In the second place, plaintiffs do

not assert that the stations in question

have, on the basis of their agreement or

disagreement with the different points

of view involved or for similar "poli-

tical" type reasons, structured their

programming so that it constitutes a

one-sided or slanted presentation of

any matter of public concern, importance

«> 127

or controversy, whether relevant to the

"message" of plaintiffs' desired program

or otherwise. ? So far as any such mat-

ters are concerned, plaintiffs’ complaint

is made essentially in a vacuum--they

claim that merely because on one parti-

cular occasion a "political" type decision

was made not to air one specific program

plaintiffs wished to see, they therefore

have a right to a court order directing

these conventionally operated governmen-

tal stations to promptly air this pre-

cise program. We have rejected this

Claim. This is not to say, however,

that no private citizen has a right to

question the programming of governmental

3. And plaintiffs do not contend their

particular (or some similar) program

must be shown to fairly balance the pre-

sentation on this subject matter which

the stations have improperly slanted by

showing some other program or programs.

-- 128

"public" television stations under any

circumstances, or that the remedy of com-

plaint to the F.C.C. will always be

adequate.

A private citizen has no constitu-

tional right to force a conventionally

operated governmental "public" television

station to enter with its broadcasting

a particular propaganda war by showing

a specific program selected by the cit-

izen. Whether it is proper for such

a governmental station to enter that

kind of a war at all, or whether if it

does so it may nevertheless present only

one side while refusing, for reasons of

a "political" nature, to broadcast any

competing view, are questions of a dif-

ferent nature that are not now before us.

- 129

DONALD E. MUIR, H. JEFF .BUTTRAM, and

O. NAVARRO FAIRCLOTH,

Plaintiffs-Appellants,

Vv.

ALABAMA EDUCATIONAL TELEVI-

SION COMMISSION; JACOB WALKER,

etc., et al., Defendants-Appellees.

No. 80-7546.

United States Court of Appeals,

Fifth Circuit.

Unit B

Sept. 21, 1981.

Before MARKEY*, Chief Judge, HILL

and THOMAS A. CLARK, Circuit Judges.

MARKEY, Chief Judge:

Appeal from a judgment of the United

States District Court for the Northern

District of Alabama refusing to order

Alabama Educational Television Commission

(AETC) to broadcast the program "Death

of a Princess" and granting summary

judgment for AETC. We affirm,

*Chief Judge of the U.S. Court of

Customs and Patent Appeals, sitting by

designation.

130

BACKGROUND

AETC decided not to broadcast

"Death of a Princess", scheduled for

broadcast in Alabama on May 12, 1980 at

8:00 p. m. The film, one of thirteen in

the series "World," is a drama/documentary

of events said to have surrounded the

July 1977 public execution for adultery

of a Saudi Arabian princess and her

lover.

AETC, organized under Ala. Code

§ 16-7-1, is responsible for "making the

benefits of educational television avail-

able to and promoting its use by inhabi-

tants cf Alabama" and has "the duty of

controlling and supervising the use of

channels reserved by the federal communi-

cations commission to Alabama for non-

commercial, educational use". Ala.Code

§ 16-7-5.2 To this end, AETC

1 Footnote on following page.

‘ 181

operates a statewide network of nine

non-commercial, educational television

stations licensed by the Federal Comnuni-

cations Commission (FCC) under the Com-

munications Act of 1934 (47 U.S.C. §§ 151,

et seq.). AETC is funded through state

1 (from preceding page)

The statutory provisions establishing

AETC provide in pertinent part:

§ 16-7-1. Creation.

There is hereby created an agency to

be known as the Alaabama educational

television commission, hereinafter called

the commission.

§ 16-7-5. Duties.

The commission is organized for

the purpose of making the benefits of

educational television available to

and promoting its use by inhabitants

of Alabama ... The commission is spec-

ifically charged with the duty of *on-

trolling and supervising the use of

channels reserved by the federal com-

munications commission to Alabama for

non-commer¢ial, educational use. It

may ... make rules and regulations

governing the operation of such sta-

tions and the programs televised over

such channels.

~ 1382

legislative appropriations from the

Special Education Trust Fund, matching

federal grants through the Corporation

for Public Broadcasting (CPB), and pri-

vate contributions.

AETC is a member of the Public

Broadcasting Service (PBS), a non-profit

corporation distributing public, non~

commercial television programs to its

members by satellite.” AETC is also

a member of the Station Program Coopera-

tive (SPC), a program funding and acqui-

sition mechanism operated by PBS. Mem-

bership in SPC entitles licensees to

participate in the selection and fund-

ing of national public television pro-

grams distributed by PBS. Respecting

each such program, member licensees

indicate whether they will contribute

to the costs of purchasing the broadcast

2 PBS filed a brief Amicus Curiae in

the district court and in this court.

~ 1388

rights. Those refusing to contribute to

a program's cost are precluded from broad-

casting that program. Those agreeing to

contribute are free to broadcast or not

to broadcast the program. PBS's "Station

Users Agreement", reposing in licensees

the absolute right to select programs

they will broadcast and to determine when

they will broadcast them, accords with

an FCC requirement that its licensees

exercise exclusive control over selection

of material for broadcast.

PBS's acquisition of "World" was

funded by 144 public television licensees,

including AETC, through the SPC. During

the week before its May 12 scheduled broad-

cast, the showing of "Death of a Princess"

was protested by Alabama residents citing

fear for the personal safety and well-

being of Alabama citizens working in the

Middle East. On May 10, AETC announced

its decision not to broadcast the film

© 184

as scheduled,

Appellants, residents of Alabama

who had planned to watch “Death of a

Princess," brought this action on May 12,

1980 under the First and Fourteenth

Amendments and 42 U.S.C. § 1983, seeking

to compel AETC to broadcast the film

and preliminary and permanent injunctions

against AETC's making “political” deci-

sions on programming.

In a well-reasoned opinion, Judge

J. Foy Guin, Jr. explained (1) that the

likelihood of success on the merits cri-

terion for an injunction had not been

shown; (2) that the First Amendment

protects the right of broadcasters, pri-

vate and public, to make programming

decisions free of interference; and (3)

that viewers have no First Amendment

right of access to the Alabama educational

television network sufficient to compel

the showing of "Death of a Princess,"

es 185

Accordingly, Judge Guin denied the motion

for a mandatory order, denied a prelim-

inary injunction, and granted summary

judgement for AETC.

Issue

[1] Whether AETC's decision not to

broadcast “Death of a Princess" viola-

ted Appellants' constitutional rights

under the First and Fourteenth Amend-

3

ments.

3. The parties concentrated their briefs

and arguments on First Amendmant consid-

erations and did not differentiate be-

tween the First and Fourteenth Amend-

ments. In view of our holding and dis-

cussion, no useful purpose would be

served by a detailed treatment of merely

mentioned or potential arguments con-

cerning primary FCC jurisdiction, a

government speaker's right not to speak,

due process elements in AETC's decision-

making, federalism implications in

federal court review of state-agency

decisions, os {geal standing, or

prior restraint upon the film's pro-

ducers who are not parties. Though

(continued on following page)

- 186

OPINION

Worthy but warring concepts are

from the outset endemic when government

acts not solely to govern but to fund

and foster functions paralleling those

4

conducted by its private citizens.

3. (continued from previous page)

Amicus PBS argues for our abstention

in light of FCC's jurisdiction, resolu-

tion oe conflict among the district

courts of this circuit, see n. 21, and

considerations of overall judicial econ-

omy, waxrant treatment on the merits

here. The text sets forth the basis

for our agreement with the district

court's conclusion that Appellants had not

met the "likelihood of success on the

merits" criterion for issuance of an

injunction.

4. See, eg., Lafayette v. Louisiana

Power & Light Co., 435 U.S. 389, 98

§.Ct. 1123, 55 L.£d.2d 364 (1978) (mu-

nicipal operation of utility); Parker

v. Brown, 317 U.S. 341, 63 S.Ct. 307,

87 L.Ed. 315 (1943) (state-approved

price fixing among growers).

© 1387

If, for example, the umpire sponsors a

team, can the game's rules be applied

equally to private and sponsored teams?

Put another way, how may constitutional

provisions designed to control the acts

cf those operating a government be

applied to the acts of those operating

a government sponsored television sta-

tion? At the federal level, the prag-

matic answer has been the adoption of

legal and operational mechanisms limit-

ing the federal government to a funding

function and divorcing it from control

5

over program content.

5. Whether "public" operation of com-

munication media in a free society is

wise, warranted, or workable is a mat-

ter within the province of the Congress,

not the courts. It has not been shown

to be unconstitutional. Of relatively

recent vintage, operation of public

television stations has grown in an

atmosphere of continuous concern for

avoidance of government control over

program content. To date, “he who

(continued on next page)

«~ 188

Those mechanisms have thus far permitted

identical treatment under the Constitu-

6

tion of private and public broadcasters.

5. (continued from previous page)

pays the fiddler” has not apparently

"called the tune", From the grant of

the first noncommercial-educational TV

license in the late 1940's, to today's

285 educational and public television

stations, a growing recognition of the

pervasive power of television has been

reflected in efforts to divorce federal

support from federal control. Insula-

tion of the fund-dispersing CPB from

political control in 1967, the creation

of PBS and its limitation to intercon-

nection and program distribution in

1969, and the formation of SPC in 1974,

reflect a consistent effort to insure

that program content selection remains

in the hands of local public television

stations. See, Blakel To Serve the

Public Interest (1975); The Public

Broadcasting Act of 1967, 47 U.S.C

§§ 390-399; The Broadcast Indust (R.

Stanley, ed. 1975); Public Television,

ction, Report of the Com-

mission on Educational Television,

January, 1967.

6. The FCC requires that every broad-

caster consistently maintain independent

control over selection of programs as

(continued on next page)

- 139

In a very real sense, the presenta-

tion of competing first amendment inter-

ests here reflects the influence of em-

phasis. AETC and Amicus PBS emphasize

the First Amendment's protection of a

free press, of which the lifeblood is

editorial freedom. Appellants emphasize

the First Amendment's protection of

free speech and their derivative right

6. (continued from previous page)

a condition to retention of a license.

E.g., Cosmopolitan Broadcasting, 59 FCC

558 (Io 78). ar ests © 73-858 (e),

requires that every broadcaster reserve

the right to reject any program offered

to it. The FCC makes no distinction

between private and public licensees,

Mississippi Authority for Educational

Television, 71 F.C.C.2d 1296 (1979) ,

caty of New York Municipal Broadcastin

ysten. 56 F.c.c.od 1609 (1975). The

rig and duty of public broadcasters to

choose their programs is clear also in

the Public Broadcasting Act of 1967,

§ 396(a) (1) (B), and in its legislative

history, S.Rep.No. 222., 90th Cong., lst

Sess. 7, 14. 15.

~ 140

to hear. The former, except in fair-

ness doctrine cases, has to date pre-

vailed with respect to all broadcasters.

Whether it should prevail with respect

to AETC in this case may be judged on

whether the function challenged here was

a governmental function.

Public and private broadcasters may

be safely treated identically, in consti-

tutional juriprudence, if their functions

under review be essentially identical.

A focus on function, rather than on

ownership or funding source, leaves

room for public and private broad-

casters to operate. At the same time,

a functional analysis would permit

7. Appellants describe AETC throughout

as "a government-owned television sta-

tion". AETC describes itself as "a

non-commercial broadcaster". PBS de-

scribes AETC as "a public broadcaster".

s

court enforcement of First Amendment. pro-

tections in a case in which mere govern-

ment ownership or funding had been meta-

morphosed into actual government con-

test control.

[2] The First Amendment is not a fetish.

Revered it must be, but continued rever-

ence requires that its applications be

intelligible. A criterion for consisten-

cy is the recognition that the function

to which the Amendment is applied may in-

fluence the result reached. If, for example

the function be government censorship of a

newspaper, the Amendment forbids it. If

the function be, as Mr. Justice Holmes put

it, a false cry of "Fire" in a crowded the-

atre, it is not protected. At the same time

a myriad of functions -- speaking, book pub-

lishing, ehoanee presentations, pamphleteer-

ing, and others -<-- enjoy a proper presump-

tion of protection under the First Amendment

~s FAR x

In the present case, the challenged

function of AETC, in deciding to cancel

"Death of a Princess", is not unlike

that routinely performed by private

broadcasters. Because Appellants con-

cede that function to private broad-

casters, a functional analysis would

appear to end the controversy at that

point. Appellants' arguments, however,

amount to a vigorous value-versus~-value

dichotomy deserving of response. Point-

ing to the presence of a state govern-

ment as sponsor and partial source of

funds for AETC, Appellants paint AETC

as “government related" and its program-

ming choices as "governmental action"

and “governmental censorship".

Editorial Freedom v. Censorship

Among the conflict of concepts

here is that between an asserted right

“ov Gg

in Appellants as potential viewers to

compel broadcast of "Death of a Princess"

and an editorial freedom of AETC to

independently select the programs it

will broadcast. Solely because it is

"owned" by a government Appellants say

AETC is bound by First Amendment re-

strictions against governmental censor-

ship. The application of constitutional

principles cannot, however, be controlled

by the bare and barren fact that govern-

ment plays some role.

[3] Recognizing a unique role played

by broadcast licensees in our jurispru-

dence, the Supreme Court has held that

regulation of the broadcast media, he-

cause of its inherent physical limita-

tions, presents “an unusual order of

First Amendment values," Columbia

Broadcasting System v. Democratic

~ 144

National Committee, 412 U.S. 94, 101, 93

S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973),

(hereafter CBS). See also Red Lion

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

89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).

Broadcast frequencies are a scarce

resource which must be parceled among

applicants. Because all who desire to

communicate cannot be satisfactorily

accommodated, "it is idle to posit an

unabridgable First Amendment right to

broadcast comparable to the right of

every individual to speak, write, or

publish." Red Lion Broadcasting Co. v.

FCC, supra at 388, 89 S.Ct. at 1806.

Delicate indeed is the process of balanc-

ing First Amendment interests while

determining what best serves the public's

right to be informed, a process which

must "necessarily be undertaken within

~- 145

the framework of the regulatory scheme

{the Communications Act]." CBS Supra

412 U.S. at 102, 93 S.Ct. at 2086.

[4] Under the Communications Act, both

public and private broadcasters are

licensed by the FCC to serve the public

interest as public trustees. As such,

each licensee has an obligation to per-

form a programming function responsive

to the needs and interests of the com-

munity it serves and to insure that the

public is presented suitable and varied

social, political, and aesthetic ideas

and experiences. As indicated above,

the manner in which those obligated

functions are discharged has to date

been left to the editorial discretion

of the licensee, whether public or

private.

As Judge Guin noted, the Communi-

cations Act envisages the licensee as

~ 146

having the absolute right and nondelega-

ble responsibility to select the pro-

grams to be broadcast. CBS supra.

AETC's decision to cancel the scheduled

showing of “Death of a Princess" was

thus an exercise of its obligation as a

broadcast licensee to make its own pro-

gramming decisions. If AETC had re-

frained from that exercise, it would

have violated its statutory duty as a

licensee. ®

{5] If, however, continuation of a

right in public broadcasters to select

their programs would violate Appelants'

8. AETC once lost its license in part

because it failed to maintain exclusive

authority over all of its programming

decisions. Alabama Educational Tele-

vision Commission, 50 F.c.c.o2da 461, at

- 147

constitutional rights, the former could

not prevail solely because it is statu-

torily authorized. Neither broadcast

licensees nor FCC may operate in a con-

stitutional vacuum, Indeed, as Justice

Stewart indicated in CBS, the First

Amendment exists to protect the people

from government, not vice-versa,”

Hence, if government ownership and par-

tial funding alone be synonymous with

government censorship of program content,

government ownership and funding would

doubtless have to cease.

9. The First Amendment does not, how-

ever, preclude the government from speak-

ing, P.A.M, News Corp. v. Butz, 168 U.S.

App. p.t, 376, S14 rooa 272° (D.c.Cir. 1975),

or from exercising editorial control over

its own medium of expression. 4

Woole nat Maynard, 430 U.S. 705 at

oT 8 et. at 1436, 51 L.Ed.2a 752 —

(1977); * abaee v. Rutgers, State Univers-

ty of NeW Texsey, 30% F.2d IST (3d Cir.

’ a nied, 390 U.S. 920, 88

S.Ct, 8 19°L.Bd.2d 982 (1968); Advo-

cates for the Arts v. Thomson, 532 ad

9727 (lst CIE. J, Gert. WsNLsa;, 429 U.S.

894, 97 &.Ct. 357,50. LiBa.7a 177 (1976);

Network pr edece v. Corporation for Pub-

’ 4 Med -Tonptr 2 419,7409

/ 148

Public broadcasters, Like private broad-

casters, make decisions every day on

which programs to broadcast. They do

so not only as a matter of practical

necessity but, as above indicated, in

accord with their duty under the Com-

munications Act. The inevitable re-

sult of the statutory scheme and the

limited availability of broadcast time,

is the licensee's rejection of some pro-

grams in favor of others. If initial

rejection of some programs were consid-

ered a form of constitutionally for-

bidden censorship, every public televi-

sion station would violate the Consti-

tution with virtually every choice it

made,

Whatever the programming choice

made by a public broadcaster, our plu-

ralistic society insures that unanimous

public concurrence would be rare. It

is true that the protections of the

-. 149

First Amendment relate most solidly to

speech likely to prove controversial,

universally approved speech having no

need of protection. Yet it is incon-

eeivable that Appellants could complain

that their constitutional rights would

have been infringed if AETC had initially

declined to participate in financing

the "World" series, It would demean the

First Amendment to find that it required

a public referendum on every programming

decision made every day by every public

television station solely because the

station is "owned" and partially funded

by a state government. It would be

equally Draconian to hold on that sole

ground that the programming decisions

of public broadcasters constitute

government censorship, with the concomi-

tant necessity of declaring that public

+ 150

television stations exercising editori-

al freedom are themselves constitutionally

prohibited.

[6] The present case originates at a

point beyond the initial choice stages.

AETC made the decisions to fund and ac-

cept the "World" series, to schedule

"Death of a Princess" for showing on

May 12, 1980, and to advertise that sched-

ule. AETC then made a subsequent pro-

gramming decision; it "changed its mind",

and decided not to make the showing.

Thus the issue on the present facts

can be stated as whether a public tele-

vision station may cancel an announced,

scheduled program without violating

the constitutional rights of viewers

who were expecting to see it. In essence,

appellants here assert a constitutional

right to see every show appearing on a

pre-announced schedule.

ene 228

A decision to cancel a scheduled

broadcast is obviously a programming

decision, no less editorial in nature

than the initial scheduling decision.

No reason in fact or law appears for

treating the former differently from

the latter in this case. Whether ap-

plied to cancelling decisions or to

initial scheduling decisions, court in-

junctions would implicate the same

destruction of editorial freedom, the

same excessive involvement of govern-

ment and the courts in the editorial

process, and the same impossibility of

either editor or court pleasing an

entire public.

Appellants' "censorship" argument

is a recognition that the risk of re-

posing editorial freedom in government

owned broadcasters lies in an obvious

+ 152

potential for government control of pro-

gram content, in a word, for govern-

ment use of its non-commercial, educa-

tional television station to perform

the function of propagandizing the pub-

lic. It is useful, in this context, to

be reminded of the facts before us.

Raising the spectre of government

control cannot serve the ends of jus-

tice if employed as determinative in

a case involving no such control. AETC

is operated by a commission. There is

no allegation or indication that the

commission is functioning in any manner

as a propaganda arm of the government

of Alabama. Though AETC receives some

of its funds fromthe state legislature,

its present operation could not survive

on those funds alone. The matching

amounts from CPB, see note 5 supra,

and those from the public, are isolated

© 153

from a “money talks" potential for con-

trolling program content. There is no

evidence here that the government of

Alabama had anything whatever to do with

AETC's decision. »°

10. In Mississippi Gay Alliance v.

Goudelock, 536 Food OLE (5th Cir. 1976),

the majority noted, 536 F.2d at 1075,

that University authorities had nothing

to do with a student editor's rejection

of an ad submitted by the Alliance and

upheld the free press right of editorial

discretion. In an extended and scholarly

dissent, Judge Goldberg viewed the editor's

action as state action, pointed to the

access provided to the student papers’

advertising columns for ads from any

source, and offered a reconciliation un-

der which the content of sections devot-

ed to news, editorial, guest columns, and

letters could remain under editorial

discretion, while access to space de-

voted to unedited advertisements and

announcements would be accessible to all,

subject to possible source and content-

neutral limitations. Attractive as

Judge Goldberg's reasoning is, we are

denied its benefit here, where AETC has

not opened its facilities to the pub-

lic, for ads, announcements, or other-

wise, and appellants are not seeking to

present their ads, announcements, or

views, but are merely seeking to force

AETC to present a show they want to see.

154

In sum, the present record reflects no

basis for fear that the government of

Alabama is “really operating the elec-

tronic press". CBS, 412 U.S. at 143,

93 S.ct. at 2106.72

ll. The concerns expressed in CBS by Jus-

tice Douglas, at 412 U.S, 149, 53°S.Ct. at

2109, and Justice Stewart at 412 U.S. 143,

93 S.Ct. at 2106, about "the Government"

were directed toward the presence of a

federal regulatory agency, the FCC. If

public broadcasting stations were consid-

ered "the government", solely because they

are "owned" and partially funded by state

governments, and the statements of con-

cern in CBS were so applied as to enable

any citizen to compel the showing of any

program the citizen desired to see, pub-

lic broadcasters could be precluded from

making any choice of programs, which may

in practice equate to forbidding their

existence. In applying the First Amend-

ment, we make no distinction between

state and federal governments. The re-

cord does not establish, however, that

AETC is an “agency” of either government,

or that its programming decisions were

in fact decisions of either government.

It is unnecessary to determine, there-

fore, whether AETC must either operate

as a public forum or cease operating.

~ 156

[7] The district court found that AETC

elected not to broadcast "Death of a

Princess" because it believed the show-

ing posed a direct threat to the well-

being of Alabama citizens in the Middle

East, that is, that the showing would

be contrary to the "public interest."

Appellants have not shown that finding

to have been erroneous. Nor have they

shown error in the finding that AETC's

decision was independently made by the

commission itself, and did not result

from importunings of any government.

It is useful also to note that

Appellants here are asserting rights

as viewers desiring to see a scheduled

film, thus seeking to force an unwilling

speaker to speak. They are not seeking

relief from a prior restraint of their

own right to speak. Nor are they

- 156

asserting that the film is a one-sided

presentation of, or deals in any manner

with, a controversial issue before the

public. If appellants were asserting

that the challenged decision dealt with

issues of public importance, their claim

would be under the fairness doctrine and

would have to be lodged with the FCC,

which has developed procedures amenable

to accommodation of First Amendment

conflicts under the doctrine. See Ameri-

can Security Council Education Foundation

Vv. FCC, 197 U.S. App.D.C. 124, 607 F.2d

438 (1979) (en banc), cert. denied, 444

U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642

(1980). Respecting conflict between the

right to hear and the right not to speak,

even when government has the information

sought, see Virginia State Board of

Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 96 S.Ct.

~- 157

1817, 48 L.Ed.2d 346 (1976), and Houchins

v. KQED, Inc. 438 U.S. 1, 98 S.Ct. 2588,

57 L.Ed.2d 553 (1978),

{8] That a "public" television station

is “owned" by a state government may be

cause for concern, for vigilance with

vigor, for seeking of safeguards. It

may raise a possibility, even an opportun-

ity, for government censorship. It is

not itself censorship. Nor is it alone

a talisman for application of First

Amendment principles different from those

applied to private broadcasters. Hence

the naked fact of government ownership,

from which appellants leap to the con-

clusion that every program rejection

constitutes government censorship, is

insufficient in itself to require denial

of editorial freedom in this case to pub-

lic broadcasters.

t 158

Editorial Freedom v. Public

Forum/Public Access

That the First Amendment protects

the right of private broadcasters, sub-

ject to the fairness doctrine, to make

programming decisions free of interfer-

ence and public access was made clear by

the Supreme Court in CBS, supra, In up-

holding the right of a private broadcast

licensee to refuse editorial advertise-

ments, the Court said:

For better or worse, editing is

what editors are for; and edit-

ing is selection and choice of

material. That editors -- news-

paper or broadcast -- can and do

abuse this power is beyond

doubt, but that is no reason

to deny the discretion Congress

provided, Calculated risks of

abuse are taken in order to pre-

serve higher values. The pre-

sence of these risks is noth-

ing new; the authors of the

Bill of Rights accepted the re-

ality that these risks were

evils for which there was no

acceptable remedy other than a

t 159

spirit of moderation and

a sense of responsibility --

and civility -- on the part

of those who exercise the

guaranteed freedoms of

expression,

CBS, supra 412 U.S. at 124-125, 93 S.Ct.

12

at 2097.

12. Both parties quote segments of one

or more of the six opinions supplied by

the court in CBS. The quoted segments,

standing alone, appear to support the

position of the quoting party. From

the six opinions, it is difficult to

glean from any one in its entirety a

majority view on all the issues. Though

a majority clearly concluded that private

broadcaster CBS did not violate the Con-

stitution in refusing the proffered ad-

vertising, the opinions contain varied

comments respecting the relationship of

a broadcasting facility to "the Govern-

ment". In one opinion, CBS's decision

was viewed as not constituting "govern-

mental action", its refusal to accept

the advertisements, “assuming govern-

mental action", was held not violative

of the First Amendment, and journalis-

tic independence was described as in-

capable of existence if CBS's refusal

were read as governmental action. In

two concurring opinions it was pointed

out that to read broadcaster action as

governmental action would be to render

broadcast stations public forums and

(continued on next page)

- 160

[9] The First Amendment right set forth

in CBS has been held to reside equally

in non-commercial public licensees,

such as AETC, who do not forfeit that

right merely because they are publicly

supported. Community Service Broad-

casting v. FCC, 593 F.2d 1102 (D.C. Cir.

1978) .+3

(Continued from previous page)

strip them of their First Admendment

rights. The dissent argued that CBS

should be considered a public forum.

No specific reference to noncommercial

public broadcasters like AETC appears

in the opinion accompanying the Court's

decision in CBS.

13. (NJoncommercial licensees are fully

protected by the First Amendment.

Clearly, the existence of public sup-

port does not render the licenses vul-

nerable to interference by the federal

government without regard to or restraint

by the First Amendment .... non-commer-

cial broadcasters no less than their

commercial counter-parts are entitled

to invoke the protection of the First

Amendment .... 593 F.2d at 1119.

t 161

Thus AETC's refusal to broadcast “Death of

a Princess" is itself constitutionally

protected.

[10] Nothing of record indicates that

AETC must be considered a public forum to

which Appellants have a constitutional

right of access or in which Appellants have

a constitutional right to compel the

broadcast of “Death of a Princess." That

the government "owns" or financially sup-

ports a speech medium does not alone create

a public right to force that medium to pre-

sent a particular film. See Avins v.

Rutgers, State University of New Jersey,

385 F.2d 151 (3rd Cir. 1967), cert. denied,

390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982

(1968), and Advocates for the Arts v. Thom-

son, 532 F.2d 792 (lst Cir, 1976), cert. de-

nied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed,

2d 177 (1976). It is only when the govern-

ment has created a public forum dedicated

+. 162

to public use that a right of access may

obtain. The Supreme Court has recognized

that "the nature of the forum and the

conflicting interests involved have re-

mained important in determining the de-

gree of protection afforded by the Amend-

ment to the speech in question." Lehman

v. Shaker Heights, 418 U.S. 298, 302, 94

S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974).

More recently, in upholding a

statute prohibiting use of residential

mail boxes for dissemination of unstamped

literature, the Court cited its earlier

recognition that "the First Amendment

does not guarantee access to property

simply because it is owned or controlled

by the government". United States

Postal Service v. Council of Greenburg

+. 163

Civic Associations, U.S. _, ’

101 S.Ct. 2676, 2685, 69 L.Ed. 2d 517

(1981). That recognition appears in

Greer v. Spock, 424 U.S. 828, 96 S.Ct.

1211, 47 L.Ed.2d 505 (1976) Adderley v.

Florida, 385 U.S. 39, 87 S.Ct. 242, 17

L.Ed.2d 149 (1966), Jones v. North

Carolina Prisoners' Labor Union, Inc.,

433 U.S. 119,97 Ct. 2532, 53 L.Ed.2d

629 (1977), and Lehman v. City of Shaker

Heights, supra. Though none of the

facilities involved in the cited cases

was a public broadcast station, the

principle for which the cases stand,

name’ y that government ownership or con-

trol does not alone guarantee public

access, is unaffected by that circum-

stance. Moreover, the Court pointed out,

at _—s'UX«.S. at sin. 6, 101 S.Ct. at

2685 N.6, that use of an instrumentality

~ 164

for communication of ideas or information

does not alone require that the instru-

mentality be declared a public forum,

citing the presence of such use in

Lehman.

The Court in CBS concluded that a

right of public access was fundamentally

inconsistent with the responsibilities

imposed on broadcasters to serve the

1

public interest, ‘ and that a public

14. "The result would be a further

erosion of the journalistic discretion

of broadcasters in the coverage of pub-

lic issues, and a transfer of control

over the treatment of public issues

from the licensees who are accountable

for broadcast performance to private

individuals who are not, The public

interest would no longer be 'para-

mount' but, rather, subordinate to pri-

vate whim." CBS, supra 412 U.S. at

124, 93 S.Ct. at 2097.

+ 165

right to demand that particular programs

be broadcast would result in excessive

and undesirable governmental intrusion. ?°

15. Under a constitutionally commanded

and Government supervised right-of-

access system urged by respondents and

mandated by the Court of Appeals, the

[FCC] would be required to oversee far

more of the day-to-day operations of

braodcasters'’ conduct, deciding such

questions as whether a particular indi-

vidual or group has had sufficient

opportunity to present its viewpoint

and whether a particular viewpoint has

already been sufficiently aired. Regi-

menting broadcasters is too radical a

therapy for the ailment respondents

complain of ...

The [FCC's] responsibilities under a

right-of-access system would tend to

draw it into a continuing case-by~case

determination of who should be heard and

when." CBS, supra at 126, 127, 93

S.Ct. at 2098, 9.

© 166

In FCC v. Midwest Video Corp., 440 U.S.

689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979),

the Court again stated that public access

would conflict with the independence of

individual licensees. /® We can see -

basis for abandoning or evading those

conclusions with respect to public

broadcasters, to the functioning of

which those conclusions apply with equal

force. Indeed, the radical therapy of

16. The language of § 3(h) [of the Com-

munications Act] is unequivocal; it stip-

ulates that broadcasters shall not be

treated as common carriers.... [Section]

3(h), consistent with the policy of the

Act to preserve editorial control of pro-

gramming in the licensee, forecloses any

discretion in the [FCC] to impose access

requirements amounting to common carrier

obligations on broadcast systems. The

provision's background manifests a con-

gressional belief that the intrusion

worked by such regulation on the

journalistic integrity of broadcasters

would overshadow any benefits associ-

ated with the resulting public access.

440 U.S. at 705, 99 S.Ct. at 1444.

167

regimentation foreseen as accompanying

access in CBS, 412 U.S. at 124, 93 S.Ct.

at 2097, would be no less radical when

applied to public broadcasters.

That the functioning of a broad-

cast station is fundamentally incon-

sistent with the concept of a public

forum which must be opento all distin-

guishes this case from Southeastern

Promotions Ltd. v. Conrad, 420 U.S. 546,

95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), on

17

which Appellants rely. There the

17. Appellants also cite Mink v. Station

WHAR, 59 FCC2d 987 (1976), wherein the

FCC ordered a West Virginia radio station

to file a plan stating how it would com-

ply with the "fairness doctrine" by

broadcasting programs related to strip

mining. The fairness doctrine, codified

in part at 47 U.S.C. § 315(a), imposes

on broadcasters a duty to fairly reflect

opposing viewpoints on public issues.

That the FCC may, consistent with the

First Amendment, limit the editorial dis-

cretion of its licensees by imposing

(Continued on following page)

- 166

Court held that a municipal auditorium

could not preclude the showing of the

musical "Hair" because it found that that

the auditorium was a public forum dedi-

cated to the public use as a “community

center ... where civic, educational,

religious,

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