Opposition Brief — Arkansas Ed. Television Comm'n v. Forbes

1 Supreme Court, U.S.

FILED

(y DEC 19 1996

No. 2) CLERK

In the Supreme Court of the Anited States

OcTOBER TERM, 1996

ARKANSAS EDUCATIONAL TELEVISION COMMISSION,

PETITIONER

v.

RALPH P. FORBES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE

FEDERAL COMMUNICATIONS COMMISSION

AND THE UNITED STATES AS AMICI CURIAE

SUPPORTING PETITIONER

WALTER DELLINGER

Acting Solicitor General

WILLIAM E. KENNARD LAWRENCE G. WALLACE

Rca aoe Deputy Solicitor General

HRISTOPHER J. WRIGHT

JONATHAN E. NUECHTERLEIN

Deputy General Counsel Assistant to the Solicitor

DANIEL M. ARMSTRONG General

Associate General Counsel Department of Justice

C. GREY PASH, JR. Washington, D.C. 20530-0001

Counsel (202) 514-2217

Federal Communications

Commission

Washington, D.C. 20554

QUESTION PRESENTED

Whether, when providing news-related program-

ming to the communities they serve, broadcast sta-

tions licensed to governmental entities are subject to

First Amendment limitations inapplicable to broad-

cast stations licensed to private entities.

(I)

TABLE OF CONTENTS

Page

Interest of the Federal Communications Commission

and the United States ...............ccccccccceeeeeeseeeeeeenneees 1

IED diitiebctidncaibsblesiniasidichinceeninentascccceubescesseseczeces 2

SITTIN. ditsichesbtsnctendcbbsebecnidibdeetathediccéenensecsbtevessesete 9

} TEIRTIIND wccdcocicnssetachostbicsensenstcscovesescccccoescotccccescoceees 18

TABLE OF AUTHORITIES

| Cases:

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

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

GUIPUUED chrbsdislicinendsbonipsistinnctsctnssnertccteccseccccestcocceees 5, 6

Action for Children's Television v. FCC, 821

ee Pe Es GS BUD cctrcsccscincccescccsccesecocececess 4

Alabama Educ. Television Comm'n, 50 F.C.C.2d

EE ES a ee TTT 4, 16

American Independent Party, 62 F.C.C.2d 4,

aff'd mem. sub nom. McCarthy v. FCC,

| No. 76-1915 (D.C. Cir. 1976), cert. denied, 430

U.S. 955 (1977) ES EE SE a 16

Andrew J. Watson, 26 F.C.C.2d 236 (1970) = ae 17

of Iowa State Univ. Broadcasting

Corp., 9 F.C.C. Red., 481 (1993), aff'd mem.

sub nom. Iowans for WOI v. FCC, 50 F.3d

BE Gee Ge BED cedetecnbcesccccccsseccesccccccccccesecees 5

Arkansas Educ. Television Comm'n v. Forbes,

cert. denied, 115 S. Ct. 500 (1994) .............cccccceeee 7

Aspen lnstitute, 55 F.C.C.2d 697, aff'd sub nom.

Chisaolm v. FCC, 588 F.2d 349 (D.C. Cir.),

cert. denied, 429 U.S. 890 (1976) ..........cccccccceeeees 16

Brown for President Comm., 75 F.C.C.2d 609

(1980) ictiieitihendiiibiuctntiiastitiesensensemacceeveeesee 17

Carol Music, Inc., 37 F.C.C. 379 (1964) deliestibeveptioss 4

CBS, Inc. v. Democratic Nat'l Comm., 412 U.S.

EE tia hienaphtitictymnabditininasiasitentnncscceseecsetecse 11, 12, 16

(II1)

= . a : 4 :

py ee Les Ta. an. ee a _

Cases—Continued: Page

Chandler v. Georgia Pub. Telecommunications

Comm'n, 917 F.2d 486 (11th Cir. 1990), cert.

denied, 502 U.S. 816 (1991) .....-.....ccceccereesereeeees 9, 10

Chisholm v. FCC, 538 F.2d 24% ( ).C. Cir.), cert.

denied, 429 U.S. 890 (1976) .........ccccccceseeeceeeeneeees 16

City of New York Municipal Broadcasting Sys.,

BB FACILE BED GG GED cccsagecssengusesecenpaginstenianpeasece 6

Codification of Commission's Political Program-

ming Policies, 7 F.C.C. Red. 678 (1991), reconsid.

denied, 7 F.C.C. Red. 4611 (1992) 17

Commercial TV Stations, 98 F.C.C.2d 1076 (1984),

reconsid. denied, 104 F.C.C.2d 357 (1986), aff'd in

relevant part sub nom. Action for Children’s

Television v. FCC, 821 F.2d 741 (D.C. Cir.

BEBE) cocccececceccecessseanensssntsnsuntaiecismebeemnpantetdbeanecesed : 4

Conservative Party, 40 F.C.C. 1086 (1962) ........... 17

Constitutional Party, 14 F.C.C.2d 255,

reh’g denied, 14 F.C.C.2d 861 (1968) .................. 17

Cosmopolitan Broadcasting Corp. v. FCC,

59 F.C.C.2d 558 (1976), rev’d on other grounds,

581 F.2d 917 (D.C. Cir. 1978) .............ssessssseseeesees 4

Cyril E. Sagan, 1 F.C.C. Red. 10 (1986) ............... 17

Deregulation of Radio, 84 F.C.C.2d 968, reconsid.

granted in part, 87 F.C.C.2d 797 (1981), aff’d in

relevant part sub nom. Office of Communication

of the United Church of Christ v. FCC, 707

F.2d 1413 (D.C. Cir. 1968) ................ccscccserersseeees 4

En Bane Programming Inquiry, 44 F.C.C. 2308

| Ee eee a eS 4

FCC v. League of Women Voters, 468 U.S. 364

CUED) cccsensesesressuminssesntstsascnpsttembiniiencipedibectenniidads 5, 6, 12

FCC v. Midwest Video Corp, 440 U.S. 689

CRBTED sctnesccncesittianscninctnsdtsinnnninitieitiniatinibinteneinistane 12

FCC v. Pottsville Broadcasting Co., 309 U.S. 134

CODED cnenesressstncinnncinsantemantinibagnaiatitinegapaianiens 2

FCC v. Sanders Bros. Radio Station, 309 U.S.

GED BEND cccccencssesrentprenientnitiinensiitnitntedienne 3,4

Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981) .................... 13

—— —_

"—_— “2-8 7™,

Vv

Cases—Continued:

Henry Geller, 95 F.C.C.2d 1236 (1983) ............00000

for President Comm. v. FCC, 636 F.2d

417 (D.C. Cir. 1980) a

King Broadcasting Co. v. FCC, 860 F.2d 465

(D.C. Cir. 1988)

Marcus v. lowa Pub. Television:

OF FBG VIBE CIGD ccccccctitrecensccicceseensesivccsescccccccece

No. 96-3645SIDM (8th Cir. Dec. 10, 1996) . av ee

FCC v. Midwest Video Corp, 440 U.S. 689

(1979) shane

cere ereeeee

Muir v. Alabama Educ. Television Comm'n, 688

F.2d 1033 (5th Cir. 1982), cert. denied, 460 U.S.

BEEIB CORED cececccescssesecsssscsenscesscsscssetsnsuesosecsseccooce

Office of Communication of the United Church

of Christ v. FCC:

359 F.2d 994 (D.C. Cir. 1966) ..........ccccceeeeeereees

425 F.2d 543 (D.C. Cir. 1969) .........cccccceeeeeeeeees

Perry Educ. Ass'n v. oan Local Educators’

Ass'n, 460 U.S. 37 (1983) .

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

I Dicatdcetinnntbiccnntindbtnstapteqrecinitiogznncceeses

Requests of Fox Broadcasting Co., In re, 11

F.C.C. Red. 11,101 (1906) ..............cccccccsccsrrsereeees

Rosenberger v. Rector & Visitors of the Univ. of

Va., 116 S. Ct. 2510 (1986) .............0.cccrsesessreeeeees

Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4

SS

Sixth Report and Order on Televison Assignments,

41 F.C.C. 148 (19GB) .............ccccrcsesererecssesececersees

Trustees of the University of Pennsylvania, 69

F.C.C.2d 1304 (1978) ..........cccceceeccrrcrerssessceerceeees

WCHS-AM.-TV Corp., 8 F.C.C.2d 608 (1967) .......

Yale Broadcasting Co. v. FCC, 478 F.2d 594

(D.C. Cir.), cert. denied, 414 U.S. 914 (1973) ......

» a " eo. er le ae S a a en _] ~“——) = - oe = él ™ 3 he Ree OR a, me i | is)

. . 7

4

>

" In the Supreme Court of the United States

Constitution, statutes and regulation Page OcTOBER TERM, 1996

OB, Camet, Qanes E ctrisviatestpecsessvesnipccsiteions 2, 7, 9, 11

Communications Act of 1934, ch. 652, 48 Stat. No. 96-779

1064, 47 U.S.C. 151 et 809. ..cececcccececeeeeseseceeseseceeens 1,2

- ae a eapescesocoocosccesasccascocesssseensceuecese - ’ ARKANSAS Epuc ATIONAL TELEVISION CoMMISSION,

CF CE ID tcnitsisiicrctvbirieeienice 3 oe

47 U.S.C. 307(c) (to be codified at Supp. II ,

SOD iil sinccemecitldibeaicsteidiciniitlitababiibeliiediens 3 ¥.

47 U.S.C. 309(k) (to be codified at Supp. II

SD si iicectt adh ctitivictleitabnitariteinetngstinasinnde 3 RALPH P. FORBES

GE WEA GEOG. ccsvccnssseccsesittvspsentabtnessasestone 16, 17

Gy Waa TID cenecnnsnssnstectannscsssccsnnintticteninenes 16, 17

ON PETITION FOR A WRIT OF CERTIORARI

47 U.S.C. SIB(AMI)A4E) .......cccceccresecccerenesceseseees 13, 16 TO THE UNITED STATES COURT OF APPEALS

47 U.S.C. 399 PTETTTTITI TTT 6 FOR THE EIGHTH CIRCUIT

CO 6

Educational Television Act of 1962, Pub. L. No. 87-

FS a a ae 5 FOR THE

Public Broadcasting Act of 1967, Pub. L. No. 90- FEDERAL COMMUNICATIONS COMMISSION

BBD, BE Bhat. BOB 2..0.ccc.-cocrcccsecscvcecccovscsvescesccocescoes 5 AND THE UNITED STATES AS AMICI CURIAE

Radio Act of 1927, ch. 169, 44 Stat. (Pt. 2) 1162 ..... 2 SUPPORTING PETITIONER

oF ey Se aaeane nn eee 6

Miscellaneous:

pry Rec. 5479 (1926) . INTEREST OF THE FEDERAL COMMUNICATIONS

S. Frost, Education’s Own Stations (1937) ........... 5 COMMISSION AND THE UNITED STATES

G. Gordon, Educational Television (1965) ............. 5 The Federal Communications Commission (FCC

S. Rep. No. 562, 86th Cong., Ist Sess. (1959) ......... 3 is the to which Co enn del , ( oa

authority to regulate the broadcast industry under

the Communications Act of 1934. See 47 U.S.C. 151 et

seg. Congress and the FCC have committed sub-

stantial public resources—in the form of frequency

allocations and federal funds—to the development of

noncommercial educational broadcasting (commonly

referred to as “public broadcasting”). In so doing,

(1)

2

Congress and the FCC have acted on the premise that

the employees of all public broadcasting stations, of

which more than two-thirds are licensed to state enti-

ties, will exercise the same editorial discretion over

the content of their programming as their counter-

parts in private commercial broadcasting. In holding

that the First Amendment constrains the editorial

decisions of a state-entity licensee, however, the

court of appeals’ decision in this case threatens the

premise underlying the federal regulatory scheme.

The Commission and the United States therefore

have a substantial interest in the outcome of this

case.

STATEMENT

1. a. Before passage of the Radio Act of 1927, ch.

169, 44 Stat. (Pt. 2) 1162, “the allocation of [broad-

casting] frequencies was left entirely to the private

sector, and the result was chaos.” Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 375 (1969).

Congress recognized that unless the federal govern-

ment regulated access to the airwaves, each speaker

would be drowned out by a “cacophony of competing

voices.” Jd. at 376. Congress thus enacted the Com-

munications Act of 1934, ch. 652, 48 Stat. 1064, “to pro-

tect the public interest in communications,” Scripps-

Howard Radio Inc. v. FCC, 316 U.S. 4, 14 (1942), by

formulating “a unified and comprehensive regulatory

system for the industry.” FCC v. Pottsville Broad-

casting Co., 309 U.S. 134, 137 (1940). Congress as-

signed enforcement responsibility under this new

regulatory scheme to the FCC.

Broadcasters are granted station licenses for

terms of up to eight years. 47 U.S.C. 307(c) (to be

codified at Supp. II 1996). The Commission may grant

3

and subsequently renew such licenses only after ~

finding that doing so will serve the public interest,

convenience or necessity. 47 U.S.C. 308, 307(a) and

(ce), 309(k) (to be codified at Supp. II 1996). The “policy

of the Act is clear that no person is to have anything

in the nature of a property right as the result of the

granting of a license.” FCC v. Sanders Bros. Radio

Station, 309 U.S. 470, 475 (1940).

A central element of this regulete y scheme is the

responsibility of the individual ||\.:.see, whether a

governmental or private entity, act as a public

trustee. A broadcasting license is a public trust. The

licensee obtains “the free and exclusive use of a

limited and valuable part of the public domain” and, in

return, assumes a duty to serve the public interest.

See Office of Communication of the United Church

of Christ v. FCC, 359 F.2d 994, 1003 (D.C. Cir. 1966).

As one sponsor of a predecessor to the Communica-

tions Act observed 70 years ago, “(t]he right of the

public to service is superior to the right of any

individual * * *. If enacted into law, the broad-

casting privilege will not be a right of selfishness. It

will rest upon an assurance of public interest to be

served.” 67 Cong. Rec. 5479 (1926) (remarks of Rep.

White). Similarly, in amending the Communications

Act in 1959, Congress reaffirmed the public trust

concept as the animating principle underlying the

Act: “(BJroadcast frequencies are limited and, there-

fore, they have been necessarily considered a public

trust. Every licensee who is fortunate in obtaining a

license is mandated to operate in the public interest.”

S. Rep. No. 562, 86th Cong., Ist Sess. 8 (1959); accord

Red Lion Broadcasting Co. v. FCC, 395 U.S. at 375-

377; Office of Communication of the United Church

of Christ v. FCC, 425 F.2d 543, 548 (D.C. Cir. 1969).

dq

The “ability of the licensee to render the best

practicable service to [its] community” is crucial to

the Commission’s licensing decisions. Sanders Bros.,

309 U.S. at 475. Specifically, a broadcaster must

direct issue-responsive programming to the identified

needs of its community. See Commercial TV Sta-

tions, 98 F.C.C.2d 1076 (1984), reconsid. denied, 104

F.C.C.2d 357 (1986), aff’d in relevant part sub nom.

Action for Children’s Television v. FCC, 821 F.2d 741

(D.C. Cir. 1987); Deregulation of Radio, 84 F.C.C.2d

968, reconsid. granted in part, 87 F.C.C.2d 797 (1981),

aff’din relevant part swb nom. Office of Communi-

cation of the United Church of Christ v. FCC, 707

F.2d 1413 (D.C. Cir. 1983). Failure to meet that re-

quirement can lead to the denial of a broadcaster’s

renewal application. See Alabama Educ. Television

Comm’n, 50 F.C.C.2d 461 (1975).

Each licensee must itself undertake, and therefore

may not delegate, the “primary duty and privilege to

select the material to be broadcast to his audience.”

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

2311-2312 (1960); see also Yale Broadcasting Co. v.

FCC, 478 } .2d 594, 599-600 (D.C. Cir.), cert. denied,

414 U.S. 914 (1973). The FCC “has always regarded

the maintenance of control over programming as a

most fundamental obligation of the licensee,” WCHS-

AM-TV Corp., 8 F.C.C.2d 608, 609 (1967), and has ex-

pressed strong disapproval of any decision by a

licensee to relinquish control over portions of its

programming. See, e.g., Trustees of the University of

Pennsylvania, 69 F.C.C.2d 1394 (1978); Cosmopolitan

Broadcasting Corp., 59 F.C.C.2d 558 (1976), rev’d on

other grounds, 581 F.2d 917 (D.C. Cir. 1978); Carol

Music, Inc., 37 F.C.C. 379, 380, 400 (1964).

~— -— 4

5

b. “The history of noncommercial, educational

broadcasting in the United States is as old as broad-

casting itself.” FCC v. League of Women Voters, 468 -

U.S. 364, 367 (1984); see also S. Frost, Education’s

Own Stations 464 (1937). Between 1921 and 1936, the

federal government issued approximately 200 radio

broadcast licenses to educational institutions, many

of which were public. See id. at 2-5. When the FCC

first reserved frequencies for noncommercial educa-

tional television use, it assumed that many public

broadcasting facilities would be licensed to and fi-

nanced by state and local governmental entities. See

Sixth Report and Order on Television Assignments,

41 F.C.C. 148, 164-167 (1952); id. at 592 (separate

opinion of Commissioner Hennock). Approximately

two-thirds of noncommercial educational broadcast

stations are now licensed to governmental entities.

See FCC v. League of Women Voters, 468 U.S. at 393

n.22.

With few exceptions, noncommercial stations are

subject to the same regulatory standards and require-

1 Since 1962, the federal government has provided

substantial government funding for noncommercial educational

broadcasting. See Educational Television Act of 1962, Pub. L.

No. 87-447, 76 Stat. 64; Public Broadcasting Act of 1967, Pub. L.

No. 90-129, 81 Stat. 365; see also Accuracy in Media, Inc. v.

FCC, 521 F.2d 288, 292 (D.C. Cir. 1975), cert. denied, 425 U.S.

934 (1976); Muir v. Alabama Educ. Television Comm’n, 688

F.2d 1033, 1040 (5th Cir. 1982) (en banc), cert. denied, 460 U.S.

1023 (1983). Although governmental entities typically seek

licenses to operate noncommercial educational stations, they

may, and occasionally do, operate commercial stations as well.

See, e.g., Applications of lowa State Univ. Broadcasting

Corp., 9 F.C.C. Red. 481 (1993), aff’d mem. sub nom. lowans

for WOI v. FCC, 50 F.3d 1096 (D.C. Cir. 1995); G. Gordon,

Educational Television 9 (1965).

6

ments as commercial stations.’ In particular, the

FCC has addressed, and has specifically rejected, the

position that the editorial decisions of state-entity

broadeast licensees are subject to greater legal

constraints than the decisions of any other licensee.

The Commission reasoned that, because there is no

constitutional right of access to a broadcast station,

and because Congress refused to treat broadcasters

as common carriers, state-entity licensees have both

the same public trustee responsibilities and the same

editorial discretion as private licensees. For that

reason, the Commission concluded that the “public

forum doctrine” is not applicable to, and the First

Amendment does not restrict, a state-entity licens-

ee’s choice and selection of programming. See Mis-

sissippi Auth. for Educ. Television, 71 F.C.C.2d 1296,

1303 n.12 (1979); City of New York Municipal Broad-

casting Sys., 56 F.C.C.2d 169, 170 (1975).

2. This case concerns the constitutionality of a de-

cision by the Arkansas Educational Television Net-

work (AETN) to sponsor and broadcast a 1992 debate

between the two leading candidates for a seat in the

United States Congress. Petitioner Arkansas Edu-

cational Television Commission, an Arkansas state

agency, operates AETN. AETN did not invite re-

spondent Ralph P. Forbes, an independent candidate

for the congressional seat at issue, to participate in

the debate. That decision rested not on any disagree-

2 See FCC v. League of Women Voters, 468 U.S. at 367;

Muir, 688 F.2d at 1040; Accuracy in Media, 521 F.2d at 291.

The exceptions are a ban on supporting or opposing any candi-

date for office; a requirement that such stations operate on

a noncommercial, nonprofit basis; and a general prohibition

against selling time or accepting advertising. See 47 U.S.C.

399, 399b; 47 C.F.R. 73.621.

a=

7

ment with respondent’s political viewpoint, but on his

lack of public support, the absence of public interest

in his candidacy, and his negligible chance of electoral

success. See Pet. 2-3, 6, 14-15; Pet. App. 8a-9a.

Although candidates seeking airtime on any broad-

cast station may pursue various statutory remedies

under the Communications Act by filing a complaint

with the FCC, see pp. 15-17, infra, respondent filed no

such complaint and instead sought relief directly in

federal district court, asserting, among other things,

a First Amendment right to participate in the debate.

The district court dismissed the suit for failure to

_ State a legally valid claim, and respondent unsuccess-

fully sought preliminary injunctive relief in the court

of appeals. See Pet. App. 43a-44a.

Sitting en banc to hear respondent’s appeal on the

merits, however, the Eighth Circuit reraanded the

case to the district court for further proceedings.

Pet. App. 25a-42a (Forbes I). It held that AETN is a

state actor, that it “is faced with constraints not

shared by other television stations,” that respondent

had “a qualified right of access created by [peti-

tioner’s] sponsorship of a debate,” and that petitioner

“must have a legitimate reason to exclude him strong

enough to survive First Amendment scrutiny.” /d. at

33a-34a. The court suggested that whether or not

petitioner’s “reason” was “strong enough” turned on

whether the debate should be characterized as a

“nonpublic” or, alternatively, as a “limited public”

forum, an issue that the court remanded to the dis-

trict court. Jd. at 34a-37a. This Court denied certio-

rari. 115 S. Ct. 500 (1994).

On remand, the district court found as a matter of

law that the debate was a nonpublic forum. See Pet.

App. 6a. The court also submitted to the jury special

8

interrogatories asking whether the decision to ex-

clude respondent from the debate was influenced by

political pressure or disagreement with respondent’s

views. The jury answered those questions in the

negative. See id. at 7a-9a. Based on those findings,

the district court ruled for petitioner.

The court of appeals reversed. Pet. App. la-18a

(Forbes II). The court accepted the jury’s determina-

tion that the decision to exclude respondent from the

debate was viewpoint-neutral and free of influence

from political pressure. See id. at 7a-9a. Indeed, it

specifically found that the decision to exclude peti-

tioner “was made in good faith” and was “exactly the

kind of journalistic judgment routinely made by

newspeople.” Jd. at 16a. Nonetheless, although the

court acknowledged (id. at 15a) that petitioner had

never intended to open the debate to all legally

qualified candidates, it held that the debate was none-

theless a “limited public forum” and that petitioner

was without authority to exclude peripheral candi-

dates: “Whether [respondent] was viable was, ulti-

mately, a judgment to be made by the people of the

Third Congressional District, not by officials of the

government in charge of channels of communication.”

Id. at 14a-16a. Finding that petitioner’s reason for ex-

cluding respondent from the debate was “neither

compelling nor narrowly tailored,” the court reversed

and remanded for an assessment of damages. /d. at

17a-18a.

On September 25, 1996, Justice Thomas denied peti-

tioner’s application to stay enforcement of the Eighth

Circuit’s decision pending the filing of a petition for

certiorari. See Pet. 8. On September 26, 1996, the

Eighth Circuit, in denying petitioner’s motion to stay

its mandate, issued a one-paragraph clarification of

9

its earlier decision. Pet. App. 19a. The court stated

that petitioner remains free, “to the extent provided

by law,” to cover “bona fide news events,” including

candidate debates, that are “organized by people or

groups other than [petitioner].” Jbid. The court

added that its earlier decision did not necessarily re-

quire petitioner to invite write-in candidates to

participate in any debate that it sponsored. /bid.

DISCUSSION

The court of appeals’ decision creates a circuit

conflict on a question of substantial national impor-

tance: whether the editorial decisions of state-entity

broadcast licensees are subject to stringent First

Amendment constraints inapplicable to other broad-

cast licensees. This Court should grant certiorari to

resolve that conflict and preserve the editorial discre-

tion that state-entity licensees have traditionally

exercised over the content of their news program-

ming.

1. The court of appeals held that a state-entity

licensee, when sponsoring a political debate for the

benefit of the viewers in its community, may not limit

the participants to candidates who have demonstrated

a realistic chance of electoral success, but must also

invite every legally qualified candidate—no matter

how peripheral—for the elective office at issue. That

decision, which will undoubtedly lead many state-

entity licensees to abandon their sponsorship of such

debates in the future, is in direct conflict with

Chandler v. Georgia Pub. Telecommunications

Comm’n, 917 F.2d 486 (11th Cir. 1990), cert. denied,

502 U.S. 816 (1991).

In Chandler, Libertarian Party candidates for

Georgia state office sought to enjoin a political debate

10

between the Democratic and Republican candidates

sponsored by, and broadcast on stations licensed to,

the Georgia Public Telecommunications Commission

(GPTC), a state entity. The Eleventh Circuit

observed that GPTC, like all other broadcast licens-

ees, was required under federal law to serve the

viewing needs of its community, and that GPTC’s

employees therefore had to make daily editorial de-

cisions about programming content. 917 F.2d at 488.

The court found that, although GPTC had “ ‘regulated

content’ by making a decision to air debates between

candidates of the major parties,” that decision was

constitutionally permissible because it was reason-

ably designed to, and did in fact, meet GPTC’s obliga-

tion to air programming “of the most interest and

benefit to the citizens of Georgia.” Jd. at 489.

In this case, the Eighth Circuit acknowledged that

the decision to exclude respondent from the debate

was “made in good faith” and is “exactly the kind of

journalistic judgment routinely made by newspeople.”

Pet. App. 16a. Moreover, the court accepted (see id. at

7a-10a) the jury’s determination that that decision

was not influenced by political pressure and was not

“based on disagreement with [respondent’s] political

viewpoint.” Jd. at 9a; compare Chandler, 917 F.2d at

489 (GPTC’s decision to exclude Libertarian can-

didates was “reasonable” and “not an effort to sup-

press expression merely because public officials

oppose the speaker’s views”) (internal quotation

marks omitted). In the court of appeals’ view, how-

ever, those facts are irrelevant; the “crucial fact,” it

held, “is that the people making this judgment were

not ordinary journalists: they were employees of

government.” Pet. App. 16a. In so holding, the court

made final its earlier decision, in Forbes I, to “dis-

ee Oe

~@/ Feil Be Ce

11

agree with the Eleventh Circuit’s conclusion [in

Chandler] that the First Amendment was not impli-

cated by the Georgia public television station’s ac-

tions.” Id. at 37a n.4.

The Eighth Circuit’s decision is also in tension

with Muir v. Alabama Educ. Television Comm’n,

688 F.2d 1033 (5th Cir. 1982) (en banc), cert. denied,

460 U.S. 1023 (1983). In that case, the Fifth Circuit

upheld the authority of a state public broadcasting

network to decide, on content-based grounds, not to

broadcast a particular program. The Muir court

rejected arguments that the state network’s broad-

cast operations constituted a public forum for First

Amendment purposes. As the court explained, “(t]he

pattern of usual activity for public television stations

is the statutorily mandated practice of the broadcast

licensee exercising sole programming authority. The

general invitation extended to the public is not to

schedule programs, but to watch or decline to watch

what is offered.” 688 F.2d at 1042.

2. In our view, the decisions of the Eleventh and

Fifth Circuits in Chandler and Muir are correct, and

the contrary decision of the Eighth Circuit in this

case should be reversed. The political debate at issue

here was not a “public forum,” limited or otherwise,

nor did petitioner violate the First Amendment by

limiting that debate to those whose candidacies have

attracted significant public support or interest.

a. “Congress specifically dealt with—and firmly

rejected—the argument that the broadcast facilities

should be open on a nonselective basis to all persons

to talk about public issues.” CBS, Ince. v.

Democratic Nat'l Comm., 412 U.S. 94, 105 (1973).

Instead, Congress relied on the diverse editorial

decisions of individual broadcasters, combined with

12

each broadcaster’s statutory duty to serve the needs

of its viewing community, to ensure a rich mar-

ketplace of ideas in television broadcasting. I/d. at

120-121. “For better or worse, editing is what editors

are for; and editing is selection and choice of material.

That editors—newspapers or broadcast—can and do

abuse this power is beyond doubt, but that is no rea-

son to deny the discretion Congress provided. Calcu-

lated risks of abuse are taken in order to preserve

higher values.” Id. at 124-125.

Thus, “if the public’s interest in receiving a bal-

anced presentation of views is to be fully served, we

must necessarily rely in large part upon the editorial

initiative and judgment of the broadcasters who bear

the public trust.” FCC v. League of Women Voters,

468 U.S. 364, 378 (1984); accord CBS, Inc., 412 U.S. at

120-121. That principle is no less applicable to state-

entity licensees than to any other licensee. The

Communications Act and the FCC’s detailed regula-

tory scheme require every licensee, whether public

or private, to use its own editorial discretion to serve

the public interest. See pp. 3-6, supra. No broad-

caster may cede that responsibility to members of the

general public. See CBS, Inc., 412 U.S. at 108-114; see

also 47 U.S.C. 153(h) (no broadcaster shall “be deemed

a common carrier”); FCC v. Midwest Video Corp.,

440 U.S. 689 (1979).

A broadcaster’s responsibility to exercise editorial

control and judgment over the content of its pro-

ing is therefore inconsistent with any charac-

terization of broadcasters, or of the programs each

broadcaster airs, as “public forums.” A structured

debate between the two major candidates for a given

political office, sponsored and aired by a state-entity

licensee, is a news program designed to meet the

13

viewing needs of the licensee’s broadcast community.

See generally 47 U.S.C. 315(a)(1)-(4); King Broad-

casting Co. v. FCC, 860 F.2d 465 (D.C. Cir. 1988); In re

Requests of Fox Broadcasting Co., 11 F.C.C. Red.

11,101 (1996). A news program can in fact meet those

needs only if, as Congress intended, the sponsoring

broadcaster exercises its journalistic discretion to

exclude material that would detract from the

program’s overall effectiveness. Such programs are

not, and cannot be equated with, government property

opened up for untrammeled expression by a broad

variety of individual speakers, cf. Rosenberger v.

Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510,

2517 (1995); Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983); Heffron v.

International Society for Krishna Consciousness,

452 U.S. 640, 655 (1981), and they therefore do not

create a right of access to every peripheral candidate

who wishes to appear on television.’

Indeed, carried to its logical conclusion, the court

of appeals’ contrary analysis would appear to apply

not just to candidate debates, but to a broad range of

other programming that has traditionally fallen

within a broadcaster’s editorial discretion. For exam-

8 In any event, petitioner’s viewpoint-neutral decision to

exclude non-major candidates was reasonably calculated to pre-

serve the character of the debate as an efficient means for

community viewers to learn the positions of the principal

candidates. For that reason, even if the debate could properly

be characterized as a limited public forum, which it cannot,

petitioner’s decision to exclude t would be constitu-

tional. See Rosenberger, 115 S. Ct. at 2517 (speech restrictions

in limited public forum must be viewpoint-neutral and “reason-

able in light of the purpose served by the forum”) (internal

quotation marks omitted).

14

ple, any state-entity licensee that airs an interview

with a political candidate as part of its nightly news

broadcast could arguably be required, under the

Eighth Circuit’s reasoning, to air a separate in-

terview of every rival candidate who seeks equal

public exposure.‘ Indeed, taken at face value, the

Eighth Circuit’s decision would seem to grant rights

of television access not just to aggrieved candidates,

but to anyone with a view about a matter of public

controversy. If “journalistic judgment(s) routinely

made by newspeople” cannot be entrusted to “employ-

ees of government” (Pet. App. 16a), then, arguably,

anyone could demand airtime to respond to the views

4 The Eighth Circuit recently agreed to en banc con-

sideration of whether a state-entity licensee may sponsor and

air news programs featuring interviews with the “major

candidates” for political office. See Marcus v. lowa Pub.

Television, initial hearing en bane granted, No. 96-3645SIDM

(Dec. 10, 1996). A divided panel of the Eighth Circuit had

earlier denied preliminary injunctive relief to non-major candi-

dates who sought to appear on those programs; it reasoned

that, even if the programs at issue are limited public forums,

the state-entity licensee likely has a “compelling interest” in

“limiting access to newsworthy candidates.” Marcus v. lowa

Pub. Television, 97 F.3d 1137, 1144 (1996). In analysis that a

dissenting judge characterized as an effort “to distinguish the

indistinguishable,” ibid. (Beam, J., dissenting), the panel major-

ity explained its tentative departure from the decision in this

case on the ground that, “{ujnlike ‘viability,’ which is ulti-

mately for the voters to decide, ‘newsworthiness’ is peculiarly a

decision within the domain of journalists.” Jd. at 1142.

Because the Eighth Circuit is unlikely to overrule its decision

in the present case, this Court should grant certiorari to

resolve the conflict between the Eighth and Eleventh Circuits

on the issue presented; in the alternative, we suggest that the

Court hold this case pending the Eighth Circuit’s disposition of

Marcus.

15

expressed by anyone else interviewed in a televised

news program sponsored by a state-entity licensee.

Even if confined to the context of candidate debates,

however, the court of appeals’ decision will harm pub-

lic awareness of, and discussion about, political con-

tests throughout the United States. The value of a

debate does not necessarily increase with the number

of participants; as common sense suggests, the in-

clusion of too many participants could make almost

any debate unwieldy and uninformative. As a practi-

cal matter, the court of appeals’ decision could well

lead many state-entity licensees simply to abandon

plans to sponsor candidate debates. That is not just

an abstract concern. As petitioner observes (Pet. 11),

the Nebraska Educational Telecommunications Net-

work recently canceled a senatorial debate because it

feared that, under the decision below, it would have to

invite all minor candidates who wished to appear

alongside the major contenders. Such consequences

are unfortunate: not just for state-entity licensees

themselves, but, more significantly, for the innumer-

able American citizens who rely on such licensees to

sponsor televised debates among the principal candi-

dates for federal, state, and local offices.

b. The court of appeals’ decision appears to rest, at

least in part, on the concern that state-entity licens-

ees would exclude minor candidates from televised

debates for impermissible reasons. See, e.g., Pet. App.

4a (Forbes II) (permitting state-entity licensee to ex-

clude non-major candidates from debate would “place

too much faith in government”); see also id. at 34a

(Forbes I) (expressing concern that state-entity li-

censee might “exclude all Republicans, or all Method-

ists, or all candidates with a certain point of view”).

But Congress has already addressed that specific

16

concern—which, for the reasons explained above, is

not of constitutional dimension in any event—in a

detailed statutory scheme.

Although the Communications Act leaves most po-

litical programming to each broadcaster’s own edito-

rial discretion, it does give all legally qualified

candidates the right to make use of broadcast stat-

ions in certain circumstances. Specifically, Section

312(a)(7) confers on all federal candidates a limited

right of “reasonable” access to the airwaves, and Sec-

tion 315 provides that if any legally qualified can-

didate for public office “use[s]” a broadcast station,

other candidates for the same office must be given an

“equal opportunit[y]” to use that station as well. See

47 U.S.C. 312(a)(7), 315; see generally CBS, Inc.,

supra; Kennedy for President Comm. v. FCC, 636

F.2d 417, 422-424 (D.C. Cir. 1980).

The Act generally exempts bona fide news coverage

from the equal opportunity requirement. See 47

U.S.C. 315(a)(1)-(4). The Commission has therefore

held that airing a candidate debate usually does not

obligate a broadcaster to provide equal opportunities

to excluded candidates. See Aspen Institute, 55

F.C.C.2d 697 (1975), aff’d sub nom. Chisholm v. FCC,

538 F.2d 349 (D.C. Cir.), cert. denied, 429 U.S. 890

(1976); Henry Geller, 95 F.C.C.2d 1236 (1983); see also

American Independent Party, 62 F.C.C.2d 4, aff’d

mem. sub nom. McCarthy v. FCC, No. 76-1915 (D.C.

Cir. 1976), cert. denied, 480 U.S. 955 (1977). None-

theless, where a broadcaster does decide to exclude

legally qualified candidates from a televised debate

that it sponsors, the exemption applies only if that

decision rests on the broadcaster’s good-faith jour-

nalistic judgment and not on a desire to promote or

suppress the views of a particular candidate. See

a 7 lie J i Ti * ne Sede onal ie

— ae " Se ee eel ig a ares PPI RS eae PP eee -— ——

17

generally Chisholm v. FCC, 588 F.2d at 358-360;

Henry Geller, 95 F.C.C.2d at 1242; Cyril E. Sagan, 1

F.C.C. Red. 10 (1986); Brown for President Comm.,

75 F.C.C.2d 609, 613-614 (1980); Andrew J. Watson, 26

F.C.C.2d 236 (1970); Constitutional Party, 14

F.C.C.2d 255 (Broadcast Bureau), reh’g denied, 14

F.C.C.2d 861 (1968); Conservative Party, 40 F.C.C.

1086 (1962).

In sum, Sections 312(a)(7) and 315, together with

the Commission’s detailed implementing regulations,

ensure that all legally qualified candidates will have

fair and reasonable opportunities to present their

views on television. See, ¢.g., Codification of Com-

mission's Political Programming Policies, 7 F.C.C.

Red. 678 (1991), reconsid. denied, 7 F.C.C. Red. 4611

(1992). Respondent, was free to pursue his rights

under those provisions by filing a complaint with the

FCC, a procedure that he chose to forgo. See Pet.

App. 3la-32a. Any future candidate, however, may

invoke those statutory remedies to challenge an

unfair denial of access to the airwaves. The avail-

ability of those remedies belies the court of appeals’

concern that state-entity licensees could irremedia-

bly deny candidates a full and fair opportunity to

present their messages directly to the viewing public.

or

18

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

Bloc ering ph Deputy Solicitor General

HRISTOPHER J. RIGHT

JONATHAN E. NUECHTERLEIN

Deputy General Counsel Assistant to the Solicitor

DANIEL M. ARMSTRONG General

Associate General Counsel

C. GREY PASH, JR.

Counsel

Federal Communications

Commission

DECEMBER 1996