# Appendix — Muir v. Alabama Educational Television Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0287%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1023

## Text

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, plaintiff

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0287%3A2. Public record. Not legal advice.