# Amicus Curiae Brief — Arkansas Ed. Television Comm'n v. Forbes

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0034%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 666

## Text

Supreme Court,
FILE

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U.S. |
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No. 96-779 OFEICE O§ IME CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

ARKANSAS EDUCATIONAL TELEVISION COMMISSION,
PETITIONER

v.

RALPH P. FORBES

ON 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

General Counsel Deputy Solicitor General
CHRISTOPHER 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 j

Whether, when providing news-related program-
ming to the communities they serve, broadcast sta-
tions licensed to state and local governmental entities
are subject to First Amendment limitations inapplica-
ble to private commercial broadcasters.

(I)

TABLE OF CONTENTS

Interest of the Federal Communications Commission and

Il. Even if “forum” analysis were applicable to the
editorial decisions of state-entity broadcasters,
petitioner’s reasonable, viewpoiont-neutral
choice of debate participants still would have
III cececcecascnssnectenssentescocsesveszescecces

TABLE OF AUTHORITIES

Cases:

Accuracy in Media, Inc. v. FCC, 521 F.2d 288
(D.C. Cir. 1975), cert. denied, 425 U.S. 934 (1976) ...
Alabama Educ. Television Comm'n, 50 F.C.C.2d 461
GET ctnchithowssthinscdedncnbcctitecvecitennicnecseqsntuinmmnazesnesseeees
American Independent Party, 62 F.C.C.2d 4, aff'd
mem. sub nom. McCarthy v. FCC, No. 76-1915
(D.C. Cir. Oct. 21, 1976), cert. denied, 430 U.S. 955
CRIED eicestilteiccctincrentinnatstbocinateitcsmenerineemteeenemecese
Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967), cert.
denied, 390 U.S. 920 (1968) .........cccseceseseeereeeseeeeees
Block v. Meese, 793 F.2d 1303 (D.C. Cir.), cert.
denied, 478 U.S. 1021 (1986) ............cccccseeeerereeeeerenes
Brown for President Comm., 75 F.C.C.2d 609
Ciecrnnctantcstthtidlidetttadecinnrevisenéesnemacsansecssensceseee

(Il)

Page
1

1]
13

14

3

7,8

19

18

IV
Cases—Continued: Page

CBS, Inc. v. Democratic Nat'l Comm., 412 US.

a 14, 15, 19, 21
CBS, Inc. v. FCC, 453 U.S. 367 (1981) .........ccccceeees 5, 20
Carol Music, Inc., 37 F.C.C. 379 (1964) .........ccccceeeeee 4
Chandler v. Georgia Pub. Telecommunications

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

denied, 502 U.S. 816 (1991) ........ccccecccceeeeeereeeenneennens 11
Chisholm v. FCC, F.2d 349 (D.C. Cir.), cert.

denied, 429 U.S. 890 (1976) socectiieniianizenmantentudne 5, 6
City of New York Municipal Broadcasting Sys.,

56 F.C.C.2d 169 (1975) .......cccccesereereeseeeeennenensenneneeres 8
Codification of Commission's Political Programming

Policies, 7 F.C.C. Red 678 (1991), reconsideration

granted in part, 7 F.C.C. Red 4611 (1992) ............. 5, 6,8

Commercial TV Stations, 98 F.C.C.2d 1076 (1984),
reconsideration denied, 104 F.C.C.2d 358 (1986),

aff’d in part sub nom. Action for Children’s Tele-

vision v. FCC, 821 F.2d 741 (D.C. Cir. 1987) ........ 4
Commission Policy in Enforcing Section 312(a)(7)

of the Communications Act, 68 F.C.C.2d 1079

(1978) .......+ a x
Cornelius v. NAACP Legal Defense & Educ. Fund,

Inc., 473 U.S. 788 (1985)
Cosmopolitan Broadcasting Corp., 59 F.C.C.2d 558,
reconsideration denied, 61 F.C.C.2d 257 (1976),
rev'd, 581 F.2d 917 (D.C. Cir. 1978) .
Cyril E. Sagan, 1 F.C.C. Red 10 (1986) .........00--000+++-
Denver Area Educ. Telecommunications Consortium,
Inc. v. FCC, 116 8. Ct. 2374 (1996) ........0002+ 18, 25, 26

Deregulation of Radio, 84 ¥ .C.C.2d 968, reconsider-

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

in part sub nom. Office of Communication of United
Church of Christ v. FCC, a ae

Cir. 1983) ....... scpaseasqcesnseususgsusnsnsassbenseanocesesesesess 4

oo >

Vv
Cases—Continued: Page
En Bane Programming Inquiry, 44 F.C.C. 2303
CODED cocticnencssivnsmncdiibcastebsentshnctedcisevcsuibintatessscocessesees 4
FCC v. League of Women Voters, 468 U.S. 364
1 eee 6, 7, 8, 14, 16, 21
FCC v. Midwest Video Corp., 440 U.S. 689 (1979) .. 15
aa Pottsville Broadcasting Co., 309 U.S. 134
D <essesonstinetsnetiqussedinensenseesbebetdestetnincstessssstscessccsses 2
FCC v. Sanders Bros. Radio Station, 309 U.S. 470
GE datibedertitetinetscccncstcncntessenctitniatntszesnsectacibeaberes 3
Farmers Educ. & Coop. Union v. WDAY, Inc.,
ED Siientinccthicisineihnliinpiniiitasiiemseneviemesee 5
Fox Broadcasting Co., 11 F.C.C. Red 11,101
GENE cthtrepastntsnnsentecccencctdbsbibbaiiitinbestcnenienebtehectueuseneves 6
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260
Ne Oltertictrretinintsintennccesensssantesitibientelbartmecscssesreerees 19
Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640 (1981) ................ 15
Henry Geller, 95 F.C.C.2d 1236 (1983), aff’d sub nom.
League of Women Voters Educ. Fund v. FCC, 731
F.2d 996 (D.C. Cir. 1984) ........ccccceccsssersesscesenesersens 6
International Society for Krishna Consciousness, Inc.
V. Lee, BOG U.S. 672 (1902) .............ecccerccsorcserseseseees 17
Iowa State Univ. Broadcasting Corp., 9 F.C.C. Red
481 (1993), aff’d sub nom. Iowans for WOI-TV, Inc.
v. FCC, No. 94-1014, 1995 WL 116251 (D.C. Cir.
Feb. 24, 1995) (60 F.3d 1096 (Table)) ..................00+. 7
Kennedy for President Comm. v. FCC, 636 F.2d
IED ctntencccsensnnnsntcnnsesennsenscsnesséticsesees 8
King Broadcasting Co. v. FCC, 860 F.2d 465
Ge NS BID enectncnccnmecscccqrsanseamnpinttttinsantinescesssecce 6
Lebron v. National R.R. Passenger Corp., 513 US.
374 (1995) ee 16
Lehman v. City of Shaker Heights, 418 U.S. 298
Sie inccanviciinsvnsiniasteenscmascsotmnmainemmnpsentictsnmenscseishitenes 17

Cases—Continued: Page

Marcus v. Iowa Pub. Television:
97 F.3d 1137 (1996), reh’g en banc granted, No. 96-

3645SIDM (8th Cir. Dec. 10, 1996) .......-..v:ssves00: 22, 23

No. 96-3645SIDM (8th Cir. Dec. 10, 1996) ......-.0--0+«- 22
Mississippi Auth. for Educ. Television, 71 F.C.C.2d

ee ERY Cane ne oe 8

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

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

SI CIGD ccncasccctesectciscenttnestemasincssenmatmsmnesctesnees 7, 8, 11
Office of Communication of United Church of Christ

v. FCC:

359 F.2d 994 (D.C. Cir. 1966) .........cccccccccsereneeeeenee 3
425 F.2d 543 (D.C. Cir. 1969) ............ccceececeeeeeeeeees 3
Perry Educ. Ass'n v. Perry Local Educators’
Ass'n, 460 U.S. 37 (1983) ..........ccccceeeeeee 15, 16, 24, 25, 26
Piarowski v. Illinois Community College, 759 F.2d
625 (7th Cir.), cert. denied, 474 U.S. 1007 (1985) ..... 19
Polk County v. Dodson, 454 U.S. 312 (1981) ........... 16
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
CUNAD wsncovctcintiiiiitaittititashaihnseiinniniillleaitititainitelies 2, 3, 12, 21
Rosenberger v. Rector & Visitors of Univ. of
Virginia, 115 S. Ct. 2510 (1995) ............. 12, 13, 15, 16,
17, 18, 22, 24, 25, 26
Rust v. Sullivan, 500 U.S. 173 (1991) .........cccccceeeeee 17
Scripps-Howard Radio, Inc. v. FCC, 316 US. 4
BOGED ccecensccerecccncnvsierssccensetstsncnscetantchstesciiedliainadietons 2
outa Promotions, Ltd. v. Conrad, 420 U.S.
a 16, 21
Television Assignments, Sixth ‘Report and Order,
41 PIC. LEB (IGERD .nccccccccccccsccsscccccscsccessssescsssesececes 7
Trustees of Univ. of Por veylvania, 69 F.C.C.2d 1394
a 4
eure aie Ine. v. FCC, 512 US.
GE (IBD ccccesccocesecevescesensceseccesesscesssqssscacssessesccecscsees 8, 18
United States v. Kokinda, 497 US. 720 (1990) ssendene 17
WCHS-AM-TV Corp., 8 F.C.C.2d 608 (1967) ............ 4

VII
Cases—Continued: Page
West v. Atkins, 487 U.S. 42 (1988) .0........cccccccecocceocee 16
Widmar v. Vincent, 454 U.S. 263 (1981) ...... 2, 16, 17, 18
Yale Broadcasting Co. v. FCC, 478 F.2d 594 (D.C.
Cir.), cert. denied, 414 U.S. 914 (1978) .........ccc0000... 4
Constitution, statutes and regulation:
RES IF passim
Communications Act of 1934, ch. 652, 48 Stat. 1064 .... 2
SEE 5 1
4 ETE 4, 15
47 U.S.C. 153(10) (Supp. IT 1996) ............cccccccceseeeee 4, 15
ESSE ee Sa 3
5 EES Se 3
Oe 5, 8, 9, 20
Et AE a 5, 8, 9, 19, 20
EE 5
SE eae eee x
EET x
Educational Television Act of 1962, Pub. L. No.
| ETT A TT A SRL a 7
Public Broadcasting Act of 1967, Pub. L. No. 90-129,
REE ele Sell 5a 7
Radio Act of 1927, ch. 169, 44 Stat. 1162 .................... 2
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56:
§ 203, 110 Stat. 112 (to be codified at 47 U.S.C.
807(c)1 (Supp. IT 1996) ..........cccccccccccceeeceeeeeees 2,3
§ 204(aX(1), 110 Stat. 113 (to be codified at
47 U.S.C. 309(k) (Supp. II 1996) ..................... 3
ES ARE AE Se x
Miscellaneous:
RD 3
Federal Communications Comm’n, Mass Media
Bureau, Broadcast Station Totals (May 9, 1997) 7
S.E. Frost, Jr., Education’s Own Stations (1937) ..... 6
George N. Gordon, Educational Television (1965) ..... 7
S. Rep. No. 562, 86th Cong., Ist Sess. (1959) .:............ 3

In the Supreme Court of the Anited States

OCTOBER TERM, 1996

No. 96-779

ARKANSAS EDUCATIONAL TELEVISION COMMISSION,
PETITIONER

Vv.

RALPH P. FORBES

ON 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

INTEREST OF THE FEDERAL COMMUNICATIONS
COMMISSION AND THE UNITED STATES

The Federal Communications Commission (FCC)
is the agency to which Congress has delegated the
authority to regulate the broadcasting industry
under the Communications Act of 1934. See 47 U.S.C.
151 et seg. Congress and the FCC have committed
substantial public resources—in the form of fre-
quency allocations and federal funds—to the
ment of noncommercial educational broadcasting
(commonly referred to as “public broadcasting”). In
so doing, Congress and the FCC have acted on the

(1)

2

premise that the employees of all public broadcasting
stations, of which more than two-thirds are licensed
to state entities, will exercise the same editorial
discretion over the content of their programming
as their counterparts in private commercial broad-
casting. In holding that the First Amendment con-
strains the editorial decisions of a state-entity licen-
see, 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. 1162, “the allocation of [broadcasting]
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 recog-
nized that, unless the federal government regulated
access to the airwaves, each speaker would be
drowned out in a “cacophony of competing voices.”
Id. at 376. Congress thus enacted the Communi-
cations Act of 1934, ch. 652, 48 Stat. 1064, “to protect
the public interest in communications,” Scripps-
Howard Radio, Inc. v. FCC, 316 U.S. 4, 14 (1942),
by formulating “a unified and comprehensive regula-
tory system for the industry.” FCC v. Pottsville
Broadcasting Co., 309 U.S. 134, 137 (1940). Congress
assigned enforcement responsibility under this new
regulatory scheme to the FCC.

Broadcasters are granted station licenses for
terms of up to eight years. Telecommunications Act
of 1996 (1996 Act), Pub. L. No. 104-104, § 208, 110 Stat.
112 (to be codified at 47 U.S.C. 307(c)(1) (Supp. II

1996)). The Commission may grant and subsequently
renew such licenses only after finding that doing
so will serve “the public convenience, interest, or
necessity.” 47 U.S.C. 303, 307(a); see 1996 Act §$ 208,
204(a)(1), 110 Stat. 112-113 (to be codified at 47 U.S.C.
307(c)(1), 309(k) (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 a result of the granting
of a license.” FCC v. Sanders Bros. Radio Station,
309 U.S. 470, 475.(1940).

A central element of this regulatory scheme is the

responsibility of the individual licensee, whether a

governmental or private entity, to 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 United Church of
Christ v. FCC, 359 F.2d 994, 997, 1008 (D.C. Cir. 1966).
As one sponsor of a predecessor to the Communica-
tions Act observed 70 years ago, “the right of the
public to service is superior to the right of any
individual. * * * If enacted into law, the broadcast-
ing 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); see also S. Rep. No. 562, 86th Cong., Ist Sess.
8 (1959) (amendments to Communications Act); Red
Lion, 395 U.S. at 375-377; Office of Communication of
United Church of Christ v. FCC, 425 F.2d 548, 548
(D.C. Cir. 1969).

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

4

direct issue-responsive programming to the identified
needs of its community. See Commercial TV Sta-
tions, 98-F.C.C.2d 1076 (1984), reconsideration denied,
104 F.C.C.2d 358 (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, reconsideration granted in part, 87
F.C.C.2d 797 (1981), aff’d in relevant part sub nom. Of-
fice of Communication of United Church of Christ v.
FCC, 707 F.2d 1418 (D.C. Cir. 1983). Failure to meet
that requirement can lead to the denial of a broad-
caster’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 Bane Programming Inquiry, 44 F.C.C. 2303,
2311-2312 (1960); see also Yale Broadcasting Co. v.
FCC, 478 F.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 Univ. of Penn-
sylvania, 69 F.C.C.2d 1394 (1978); Cosmopolitan
Broadcasting Corp., 59 F.C.C.2d 558, reconsideration
denied, 61 F.C.C.2d 257 (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); see also 47 U.S.C. 153(h)
(no broadcaster shall “be deemed a common carrier”)
(to be recodified at 47 U.S.C. 158(10) (Supp. II 1996)).

b. A broadcaster must exercise the same editorial
control over its political programming that it exer-

5

cises over all other forms of programming. The
ray pnt my an important distinction,

wever, between politi rogramming and politica]
advertisements, over which candidates, mr than
broadcasters, exercise absolute editorial control. See
generally Farmers Educ. & Coop. Union v. WDAY,
Inc., 360 U.S. 525 (1959). The Act imposes a specific
set of requirements on a broadcaster’s sale (or con-
tribution) of airtime to candidates for political adver-

ing airtime for political advertisements), other candi-
dates 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(a); see generally CBS, Inc. vy.
FCC, 453 U.S. 367 (1981); Kennedy for President
Comm. v. FCC, 636 F.2d 417, 422-424 (D.C. Cir. 1980);
Codification of Commission’s Political Program-
ming Policies, 7 F.C.C. Red 678, 680-686 (1991), recon-
sideration granted in part, 7 F.C.C. Red 4611 (1992).

A candidate’s appearance in a broadcaster’s news
programming, however, is not a “use” by that candi-

is instead an intrinsic part of any broadcaster’s

exempts news » including such “bona
fide news events” as televised candidate debates,
from any “equal ” requirement that

would t rights of

gran appearance or participation
to excluded candidates. See 47 U.S.C. 315(a)(1)-(4);
Chisholm v. FCC, 588 F.2d 349 (D.C. Cir.), cert.

6

denied, 429 U.S. 890 (1976); Henry Geller, 95 F.C.C.2d
1236 (1983), aff’d sub nom. League of Women Voters
Educ. Fund v. FCC, 731 F.2d 995 (D.C. Cir. 1984)
(Table); 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. Oct. 21, 1976), cert. denied, 430
U.S. 955 (1977).

Moreover, a televised candidate debate is a “bona
fide news event,” and qualifies for the exemption from
the equal-opportunities requirement, even if the
debate is sponsored by the broadcaster itself. See
Henry Geller, supra; see also King Broadcasting Co.
v. FCC, 860 F.2d 465, 466-467 (D.C. Cir. 1988); Fox
Broadcasting Co., 11 F.C.C. Red 11,101 (1996). The
Commission has indicated, however, that it will rec-
ognize that exemption only where a broadcaster’s
decision to exclude a candidate from a debate it has
sponsored rests on a reasonably based, good-faith
journalistic judgment about the most effective way to
present the debate to the public, and not on a desire to
promote or suppress the views of a particular candi-
date. See, e.g., Codification of Commission’s Politi-
cal Programming Policies, 7 F.C.C. Red at 684, 685
n.51; Cyril E. Sagan, 1 F.C.C. Red 10 (1986); Brown
for President Comm., 75 F.C.C.2d 609, 613-614 (1980);
see also Chisholm, 538 F.2d at 358-360.

ce. “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.E. Frost, Jr.,
Education’s Own Stations 464 (1937). Between 1921
and 1936, the federal government issued approxi-
mately 200 radio broadcast licenses to educational
institutions, many of which were public. See id. at
2-5. When the FCC first reserved frequencies for

ing C
~9 F.C.C. Red 481 (1993), aff’d sub nom. Iowans for WOI-TV,
24,

7

noncommercial educational (or “public”) television
use, it fully expected that many public broadcasting
facilities would be licensed to, and financed by, state
and local governmental entities. See Television As-
signments, Sixth Report and Order, 41 F.C.C. 148,
164-167 (1952); id. at 592 (separate opinion of Commis-
sioner Hennock).' Approximately two-thirds of pub-
lic broadcasting stations are now licensed to govern-
mental entities. See League of Women Voters, 468
U.S. at 393 n.22.?

With few exceptions, public broadcasters are sub-
ject to the same regulatory standards as commercial
broadcasters, including the requirement that each li-
censee retain editorial control over the content of its

' Since 1962, the federal government has provided substan-
tial public funding for noncommercial educational broadcast-
ing. 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
a c (5th Cir. 1982) (en banc), cert. denied, 460 U.S. 1023

* Today, noncommercial educational stations in general
(including those licensed to private entities) account for 365 of
the 1,555 television broadcast licenses in the United States;
among the nation’s 12,142 total radio stations, 1,871 are classi-
fied as noncommercial educational stations. See Federal Com-
munications Comm’n, Mass Media Bureau, Broadcast Station
Totals (May 9, 1997). Although governmental entities typi-
cally seek licenses to operate noncommercial educational sta-

tions, they may, and occasionally do, operate commercial sta-
tions as well. See, ¢.g., lowa State Univ.

Inc. v. FCC, No. 94-1014, 1996 WL 116251 (D.C. Cir. Feb.
1995) (60 F.3d 1096 (Table)); George N. Gordon, Educational
Television 9 (1965).

8

programming.’ In particular, the FCC has addressed,
and has specifically rejected, the position that the
editorial decisions of state-entity broadcast licensees
are subject to greater legal constraints than the deci-
sions of any other licensee. The Commission reasons
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 dis-
cretion as private licensees. Accordingly, the Com-
mission has concluded that the “public forum doc-
trine” is not applicable to, and the First Amendment
does not restrict, a state-entity licensee’s choice and
selection of programming. See Mississippi Auth. for
Educ. Television, 71 F.C.C.2d 1296, 1303 n.12 (1979);
City of New York Municipal Broadcasting Sys., 56
F.C.C.2d 169, 170 (1975).

2. This case concerns the constitutionality of a
decision by the Arkansas Educational Television Net-
work (AETN) to sponsor and broadcast a 1992 debate

3 See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622,
650-651 (1994); League of Women Voters, 468 U.S. at 367; Muir?
688 F.2d at 1040; Accuracy in Media, 521 F.2d at 291. The

be
‘al
iit

e.g., Codification of
Programming Policies, 7 F.C.C. Red at 681; Commission Pole
in Enforcing Section 312(a)(7) of the Communications Act, 68
F.C.C.2d 1079, 1092-1094 (1978).

9

between the two leading candidates for a seat in
the United States House of Representatives. Peti-
tioner Arkansas Educational Television Commission
(AETC), an Arkansas state agency, operates AETN.*
Petitioner did not invite respondent Ralph P. Forbes,
an independent candidate for the congressional seat
at issue, to participate in the debate. That decision
rested not on any disagreement 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 administrative
remedies under Sections 312(a\(7) and 315(a) of the
Communications Act by filing a complaint with the
FCC, see pp. 5-6, supra, 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 unsuccessfully

Sitting en banc to hear respondent’s appeal on the
merits, however, the Eighth Circuit remanded the
case to the district court for further proceedings.
sae ae Q). It held that AETN is

it

* We will refer to AETC and AETN collectively as “peti-
tioner.”

—_—S-

10

“must have a legitimate reason to exclude him strong
enough to survive First Amendment scrutiny.” Jd. 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 pub-
lic” forum, an issue that the court remanded to the
district court. Jd. at 34a-37a. This Court denied
certiorari. 513 U.S. 995 (1994).

On remand, the district court found as a matter of
law that the debate was a forum. See Pet.
App. 6a. The court also submitted to the jury special
interrogatories asking whether the decision to ex-

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

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

the kind of journalistic judgment routinely made by
newspeople.” Jd. at 16a. Nonetheless, although the
court acknowledged (id. at 15a) that petitioner had

.

11

in charge of channels of communication.” Jd. at 16a.

judgments

purpose, and participants.
The product of those judgments is an expressive news
8 statu-

12

tory duty to exercise its own journalistic discretion
to inform its viewers on matters of public interest.
Sponsorship by a state actor does not convert that
news program into a “public forum” to which private
individuals have a constitutional right of access.
Instead, televised debates and other news programs
sponsored by state-entity broadcasters, like academic
lecture series sponsored by state universities, are
informative, focused presentations that, as a general
matter, a state actor may constitutionally create,
structure, and invest with such content as it deems
appropriate. See generally Rosenberger v. Rector &
Visitors of Univ. of Virginia, 115 S. Ct. 2510, 2519
(1995); Widmar v. Vincent, 454 U.S. 263, 276 (1981).
Indeed, subjecting the editorial discretion of state-
entity broadcasters to case-by-case constitutional
scrutiny would disserve “the First Amendment goal
of producing an informed public capable of conducting
its own affairs.” Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 392 (1969). Compelling state-entity
broadcasters to invite every legally qualified candi-
date to any debate that they sponsor, or even expos-
ing those broadcasters to a threat of constitutional
litigation for excluding particular candidates, could
discourage many such broadcasters from sponsoring
political debates at all. Moreover, there is no obvious
limiting principle that would afford minor candidates
a constitutional “right of access” to televised debates
but not, for example, to evening news broadcasts fea-
turing interviews with the major candidates. Indeed,
carried to its logical conclusion, the court of appeals’
reasoning—that “journalistic judgment{s] routinely
made by newspeople” cannot be entrusted to “employ-
ees of government” (Pet. App. 16a)—could bar state-
entity broadcasters from structuring weekly panel

seinen ipaastmematiadiels

13

discussions to include certain outside commentators
but not others who might also wish to participate.

Because broadcast journalism often requires diffi-
cult judgments about the range of differing view-
points that can be feasibly and usefully presented on
any given topic, application of “forum” analysis to the
editorial decisions of state-entity broadcasters could
imperil the ability of those broadcasters to air many
kinds of news programming. Nonetheless, even if
that analysis were applicable, which it is not, and even
if (as the court of appeals believed) the debate at is-
sue here could properly be characterized as a limited
public forum, petitioner’s decision to exclude respon-
dent would be constitutional. Petitioner’s decision to
exclude non-major candidates from the debate was
both viewpoint-neutral and reasonably calculated to
preserve the character of the debate as an efficient
means for community viewers to learn the positions
of the principal candidates. That showing is enough
to justify regulation of speech in either a limited
public forum or a nonpublic forum. See Rosenberger,
115 8S. Ct. at 2517.

ARGUMENT

The court of appeals held that a state-entity public
, when sponsoring a political debate for
the benefit of the viewers in its community, may not

4)

14

I. THE FIRST AMENDMENT DOES NOT CON-
STRAIN THE EDITORIAL CHOICES OF STATE-
ENTITY PUBLIC BROADCASTERS LICENSED TO
OPERATE UNDER THE COMMUNICATIONS ACT

a. “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.” C2S, Inc. v.
Democratic Nat'l Comm., 412 U.S. 94, 105 (1973).
Instead, Congress relied on the diverse editorial
decisions of individual broadcasters, combined with
each broadcaster’s statutory duty to serve the needs
of its viewing community, to ensure a rich market-
place of ideas in television broadcasting. See, ¢..,
FCC v. League of Women Voters, 468 U.S. 364, 378
(1984). “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 doubi, but that is no
reason to deny the discretion Congress provided.
Calculated risks of abuse are taken in order to pre-
serve higher values.” CBS, Inc., 412 U.S. at 124-125.

That judgment is no less applicable to state-entity
broadeasters than to any other broadcaster. See
League of Women Voters, 468 U.S. at 392 n.21, 397-
399; see also CBS, Inc., 412 U.S. at 121-132 (“assum-
ing [that] governmental action” inheres in the actions
of commercial broadcasters in their role as public
trustees, an issue on which the Court reached no
majority, the First Amendment nonetheless creates
no “right-of-access” to broadcast stations for pur-
chase of editorial advertising). The Communications
Act and the FCC’s detailed regulatory scheme re-
quire every broadcaster, whether public or private, to

use its own editorial discretion to serve the public
interest, and no broadcaster may cede that responsi-
bility to members of the general public. See pp. 4-5,
supra; CBS, Inc., 412 U.S. at 108-114; see also 47
U.S.C. 153(h) (no broadcaster shall “be deemed a com-
mon carrier”) (to be recodified at 47 U.S.C. 153(10)
(Supp. II 1996)); FCC v. Midwest Video Corp., 440
U.S. 689 (1979).

A state-entity broadcaster’s responsibility to exer-
cise editorial control and judgment over the content
of its programming is therefore inconsistent with any
characterization of those broadcasters, or of the
programs each such 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 viewing needs of te licensee’s
broadcast community. See pp. 5-6, supra. A news
program is more likely to meet those needs if, as
Congress intended, the sponsoring broadcaster may
exercise its journalistic discretion to exclude mate-
rial that would detract from the program’s overall
effectiveness. Such programs are not, and should not
be equated with, government property opened up
for untrammeled expression by a broad variety of
individual speakers, cf. Rosenberger v. Rector &
Visitors of Univ. of Virginia, 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, Inc., 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.

b. The court of appeals erred not simply in charac-
terizing a state-entity licensee’s news programming

16

as a “limited public forum,” but also, more fundamen-
tally, in employing “forum” analysis at all to resolve
this case. As discussed in point II below, this Court
has relied upon that analysis to determine the proper
level of First Amendment scrutiny applicable to re-
strictions on private speech that, while delivered on
(or by means of) public property, is not itself part
of a state actor’s own expressive presentation to
the public. See generally Rosenberger, 115 S. Ct. at
2518-2519; Widmar v. Vincent, 454 U.S. 263, 276
(1981); Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546 (1975). In that context, even when the pub-
lie property at issue is characterized as a “non-
public” forum, a speech regulation may be subject to
significant First Amendment constraints (such as a
viewpoint-neutrality requirement). See, e.g., Perry
Educ. Ass’n, 460 U.S. at 46.

But “forum” analysis is altogether inapplicable
where, as here, a state actor’ creates, and exercises

6 Petitioner “is an agency of the State of Arkansas,” Pet. 2,
and is therefore “part of the Government for purposes of the
First Amendment.” Lebron v. National R.R. Passenger Corp.,
513 U.S. 374, 400 (1995); ef. West v. Atkins, 487 U.S. 42, 50-51
(1988); Polk County v. Dodson, 454 U.S. 312, 320-322 (1981).
Nonetheless, federal law insulates the editorial decisions of
state-entity broadcasters from political influence by the federal
government, see League of Women Voters, 468 U.S. at 389-390,
394, and the Communications Act imposes on such broadcasters
the same obligation to serve the public interest as it imposes on
other licensees. Moreover, petitioner’s organizational struc-
ture and operating principles serve to protect its editorial
decisions from influence by state or local government officials.
See J.A. 110-112, 195-197; see also Pet. App. 7a-8a (accepting
jury’s finding that the decision to exclude respondent from
the debate was not “influenced in any way by political pres-
sure from anyone inside or outside of the Arkansas Educa-

17

continuing editorial control over, a structured news
or educational program designed to edify the public on
discrete topics. Cf. Rosenberger, 115 S. Ct. at 2519.
In that setting, among others, the state actor may
take the same reasonable measures a private party
might pursue in analogous circumstances to ensure
that its program is “neither garbled nor distorted.”
Ibid.; cf. International Society for Krishna Con-
sciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (distin-
guishing, for First Amendment purposes, between
government “as lawmaker” and government “as a
proprietor”); United States v. Kokinda, 497 U.S. 720,
725-726 (1990) (plurality opinion) (similar); Lehman v.
City of Shaker Heights, 418 U.S. 298, 303-304 (1974)
(plurality opinion) (similar).

That conclusion follows from the more general
principle that, “when the State is the speaker, it may
make content-based choices.” Rosenberger, 115 S. Ct.
at 2518 (citing, inter alia, Widmar, 454 U.S. at 276,
and Rust v. Sullivan, 500 U.S. 173 (1991)); see also id.
at 2548 n.11 (Souter, J., dissenting). Of course, a
televised candidate debate contains much speech that
is not itself the speech of the sponsoring broadcaster
and cannot be attributed to the broadcaster: during
the course of the debate, the candidates give their own
answers to the questions they are asked. Nonethe-
less, the program itself—much like televised weekly
panel discussions featuring the views of designated
outside commentators—is the expressive product of a

tional Television Network”). Although such influence on a
broadcaster (whether or not it is a state entity) might impair
the broadcaster’s performance of its statutory obligations under
the Communications Act, it would not, in our view, change the
analysis under the First Amendment.

18

series of interrelated journalistic judgments by the
broadcaster about format, purpose, the topics to be
addressed, and the participants to be invited. Those
judgments, and the news programs that they shape,
are no more subject to First Amendment challenge
than would be the direct expression of a government
spokesperson’s views on a matter of public impor-
tance. See generally Block v. Meese, 793 F.2d 1303,
1312-1314 (D.C. Cir.), cert. denied, 478 U.S. 1021
(1986). By analogy, when private actors sponsor can-
didate debates (or televised weekly panel discussions),
their editorial choice of program form and content is
at least as expressive in character, and at least as
close to the core of the First Amendment’s concern
for journalistic freedom, as a cable operator’s selec-
tion of programming channels for carriage, which
the Constitution protects. See Turner Broadcasting
Sys., Inc. v. FCC, 512 U.S. 622, 636-641 (1994); see
also Denver Area Educ. Telecommunications Con-
sortium, Inc. v. FCC, 116 S. Ct. 2374, 2386-2388
(1996) (plurality opinion); id. at 2423-2425 (opinion of
Thomas, J.); see generally Rosenberger, 115 S. Ct. at
2548 n.11 (Souter, J., dissenting).

Outside the broadcasting context as well, the First
Amendment permits a state actor, inter alia, to
structure a focused presentation for a discrete public
purpose by selecting some private individuals, but
not others, to participate in the presentation by giv-
ing their own disparate views on given subjects. For
example, in sponsoring a lecture series, a state uni-
versity may invite outside speakers to give a di-
versity of opinions on a topic without thereby be-
stowing on individuals with additional (or contrary)
opinions a constitutional right of access to the
podium. See Widmar, 454 U.S. at 276-277; see also

19

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-
273 (1988); Avins v. Rutgers, 385 F.2d 151 (8d Cir.
1967) (denying claim of First Amendment right to
publish article in law review issued by state univer-
sity), cert. denied, 390 U.S. 920 (1968). Similarly, in
structuring a ceremony to commemorate the anniver-
sary of a historical event, the federal government may
select private speakers to give a range of viewpoints
on that event—which may or may not coincide with
any official government position—without thereby
incurring an obligation to ensure that all available
viewpoints are represented. And the government may
select certain individuals to create a public mural or
monument that reflects some, but not all, views on a
topic such as the Holocaust. Cf. Piarowski v. Illinois
Community College, 759 F.2d 625, 631-632 (7th Cir.),
cert. denied, 474 U.S. 1007 (1985).

The principal legal constraints on the news pro-
gramming of a state-entity broadcaster therefore
derive not from the First Amendment, but from the
Communications Act, which directs all broadcasters,
public and private, to exercise reasonable editorial
discretion in serving the public interest. See CBS,
Inc., 412 U.S. at 124-125. And, as interpreted by
the Commission, the Act also provides, in some cir-
cumstances, administrative remedies to candidates
who can show that a broadcaster’s news coverage
is so arbitrarily neglectful of or hostile to their
candidacies that it does not constitute a reasonably
based, good-faith exercise of journalistic judgment.’

7 See pp. 5-6, supra. In his amended complaint, respon-
dent noted the “equal opportunities” provision of 47 U.S.C.
315(a), see J.A. 27, but he did not squarely contend that Section
315(a) entitled him to participation in the debate, see ibid.;

20

But the First Amendment provides no basis for
subjecting the editorial discretion of state-entity
licensees and programming networks to greater scru-
tiny than the discretion of their counterparts in
private commercial broadcasting.

The court of appeals’ decision appears to rest,
at least in part, on the concern that, in the absence
of First Amendment constraints, a state-entity broad-
caster might arbitrarily discriminate against “all
Republicans” or “all Methodists” in its choice of
debate participants. Pet. App. 34a; see also id. at 4a
(permitting state-entity licensee to exclude non-
major candidates from debate would “place too much
faith in government”). That concern is misguided.
As an initial matter, such discrimination would
subject any broadcaster, public or private, to admin-
istrative measures under the Communications Act.
See pp. 5-6, swpra; see also note 3, supra. Even in the
absence of those statutory protections, however, the
actions of a state-entity broadcaster, like all actions
of any state actor, “must be sufficiently reason-
able to satisfy the Due Process Clause and can-
not unfairly discriminate in violation of the Equal

instead, he appeared to argue only that Section 315(a) entitled
him to airtime on petitioner’s stations for other purposes (such
as airing an anti-abortion advertisement). See Pet. App. 3la.
In any event, the court of appeals correctly denied his claim
under Section 315(a) because he had failed to exhaust his
administrative remedies before the FCC. Jbid. As discussed
above (see p. 5, supra), Section 312(a)(7) of the Commu-
nications Act independently requires broadcasters to sell or
donate airtime for use by federal political candidates. See
47 U.S.C. 312(aX(7); CBS, Inc. v. FCC, 453 U.S. 367 (1981).
Respondent has raised no claim under that provision, which
in any event has no relevance to a broadcaster’s choice of
political programming.

21

Protection Clause.” Southeastern Promotions, 420
U.S. at 572 n.2 (Rehnquist, J., dissenting). Invidious
discrimination against “all Republicans” or some
other group, detached from any legitimate journalis-
tic purpose, would lack a rational basis and would be
constitutionally invalid on that ground alone. Cf.
ibid. (even in absence of First Amendment con-
straints, “(a] municipal auditorium which opened it-
self to Republicans while closing itself to Democrats
would run afoul of the Fourteenth Amendment”).

ce. Not only do First Amendment principles give
private individuals no right to appear on public televi-
sion, but they in fact counsel strongly against recog-
nizing any such right. As this Court has held, the
“First Amendment goal of producing an informed
public capable of conducting its own affairs,” Red
Lion, 395 U.S. at 392, is better served not by granting
private individuals rights of access to the airwaves,
but by respecting the “journalistic discretion of
broadcasters in the coverage of public issues.” CBS,
Inc., 412 U.S. at 124; see also League of Women
Voters, 468 U.S. at 398.

State-entity broadcasters and programming net-
works may effectively exercise that discretion only
if they, like all other broadcasters and programmers,
are permitted to structure their news programming
without fear that aggrieved parties will sue to chal-
lenge the details of that programming as the products
of unconstitutional editorial criteria. Cf. CBS, Inc.,
412 U.S. at 127 (rejecting “right-of-access” interpre-
tation of Communications Act that would require “a
continuing case-by-case determination of who should
be heard and when”). Journalism inevitably requires
difficult judgments about content, and no journalist

22

can cover all viewpoints on all topics. Subjecting the
editorial decisions of public broadcasters to case-
by-case scrutiny for content- or viewpoint-neutrality
under “forum” analysis, see Rosenberger, 115 S. Ct.
at 2517, could seriously discourage such broadcasters
from providing full coverage of political contests.
Carried to its logical conclusion, the court of ap-
peals’ contrary approach would invite constitutional
litigation concerning not just political debates aired
by state-entity licensees and programming networks,
but also a broad range of other news program-
ming that has traditionally fallen within every broad-
caster’s editorial discretion. For example, any state-
entity broadcaster or programming network that airs
an interview with a political candidate as part of
its nightly news coverage could arguably be required,
under the Eighth Circuit’s reasoning, to air a
separate interview of every rival candidate who
seeks equal public exposure.* Moreover, the Eighth

8 While the petition for certiorari in this case was pending,
the Eighth Circuit agreed to en banc consideration 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, 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

23

Circuit’s reasoning would also seem to grant rights
of television access not just to uninvited candidates,
but to anyone with a view about a matter of public
controversy. If, as the court of appeals believed,
“journalistic judgment(s) routinely made by news-
people” cannot be entrusted to “employees of govern-
ment” (Pet. App. 16a), then, arguably, anyone could
demand airtime to respond to the views expressed
by anyone else interviewed in a news program, or
featured in a panel discussion, sponsored by a state-
entity licensee or programming network.

Even if confined to the context of candidate debates,
however, the court of appeals’ approach would harm
public awareness of, and discussion about, political
contests throughout the United States. The value
of a debate does not necessarily increase with the
number of participants; as common sense suggests,
the inclusion of too many participants could make
almost any debate unwieldy and uninformative. As a
practical matter, the Eighth Circuit’s approach could
well lead many state-entity broadcasters simply to
abandon plans to sponsor candidate debates. For
example (see Pet. 11), the Nebraska Educational Tele-
communications Network canceled a 1996 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 signifi-
cantly, for the innumerable American citizens who

decision within the domain of journalists.” /d. at 1142. On
March 24, 1997, the Eighth Circuit deferred further considera-
tion of Marcus until after this Court’s final disposition of this
case.

24

rely on such licensees to sponsor televised debates
among the principal candidates for federal, state, and
local offices.

Il. EVEN IF “FORUM” ANALYSIS WERE APPLICA-
BLE TO THE EDITORIAL DECISIONS OF STATE-
ENTITY BROADCASTERS, PETITIONER'S REA-
SONABLE, VIEWPOINT-NEUTRAL CHOICE OF
DEBATE PARTICIPANTS STILL WOULD HAVE
BEEN CONSTITUTIONAL

As a general matter, “forum” analysis imposes
constitutional constraints on government regulation
of private expression on (or by means of) public
property that the government does not itself seek
to use as the site or medium of its own expressive
presentation to the public. See generally Perry
Educ. Ass'n, 460 U.S. at 45-46. The most basic dis-
tinction drawn in this area is between “traditional”
public forums, in which the government may not
regulate on the basis of speech content without a
compelling state interest, and “nonpublic forum(s],”
in which speech “can be restricted as long as the
restrictions are ‘reasonable and [are] not an effort to
suppress expression merely because public officials
oppose the speaker’s view.’” Cornelius v. NAACP
Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800
(1985) (quoting Perry Educ. Ass'n, 460 U.S. at 46).

Similar to “nonpublic” forums are forums “limited”
to certain subjects or groups; there too, non-
viewpoint-based “content discrimination * * * may
be permissible if it preserves the purposes of
th{e] limited forum.” Rosenberger, 115 S. Ct. at
2517; see also Perry Educ. Ass'n, 460 U.S. at 46 n.7.
“Limited” public forums are a subset of “designated”
public forums, and should be distinguished from other

kinds of designated forums that are not so limited,
such as historically closed government property that
the government has “generally open{ed] to the public”
as “a place for expressive activity” of all kinds. /d. at
45. Speech restrictions in that latter category of
“designated” public forum, unlike speech restrictions
in forums “limited” to certain topics or groups,
are generally subject to the same strict content-
neutrality requirement applicable to truly traditional
public forums such as streets and sidewalks. See id.
at 45-46 & n.7; Cornelius, 473 U.S. at 802; cf. Denver
Area, 116 S. Ct. at 2388-2389 (plurality opinion); id. at
2413-2414 (opinion of Kennedy, J.).

Because the First Amendment has no application
to the editorial choices that define a state-entity
broadcaster’s news programming, this case can and
should be decided without reference to “forum”
analysis. That analysis, as we have observed (see
p. 16, supra), is applicable only where the govern-
ment passively permits the use of its property to
“encourage a diversity” of private views, see
Rosenberger, 115 S. Ct. at 2519; but it is inapplicable
in (for example) the circumstances presented here, in
which a state actor designates private speakers to
participate in a focused presentation that the state
actor itself has designed for a discrete public purpose
and over which it exercises close editorial control.

Nonetheless, even if “forum” analysis were applica-
ble in this context, which it is not, then—whether
this candidate debate is properly characterized as a
“limited public” or as a “nonpublic” forum—peti-
tioner’s choice of debate participants still would have
been constitutional. The court of appeals not only
acknowledged that petitioner’s decision to exclude
respondent from the debate was “exactly the kind of

26

journalistic judgment routinely made by newspeople,”
Pet. App. 16a, but further accepted the jury’s deter-
mination that petitioner’s decision was not influenced
by political pressure and was not “based on dis-
agreement with [respondent’s] political viewpoint,”
id. at 9a.

Thus, under the facts embraced by the court of
appeals, petitioner’s choice of participants was
viewpoint-neutral (and arguably content-neutral as
well) and reasonably calculated to preserve the char-
acter of the debate. Petitioner created the debate as
an efficient means for community viewers to learn
more about the candidates who, with the election
drawing near, had attracted significant public inter-
est or support; and to that original and entirely le-
gitimate purpose petitioner remained faithful. See
generally Buckley v. Valeo, 424 U.S. 1, 96 (1976) (per
curiam) (“Congress’ interest in not funding hopeless
candidacies with large sums of public money neces-
sarily justifies the withholding of public assistance
from candidates without significant public support.”)
(citation omitted); see also Denver Area, 116 S. Ct. at
2414 (opinion of Kennedy, J.). A state actor need show
no more to justify speech regulations designed “to
preserve the limits of the forum it has created.”
Rosenberger, 115 S. Ct. at 2517 (speech restrictions
in limited public forum must be viewpoint-neutral and
“reasonable in light of the purpose served by the
forum”); id. at 2547-2549 (Souter, J., dissenting);
accord Perry Educ. Ass’n, 460 U.S. at 46 & n.7;

27

CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

WILLIAM E. KENNARD LAWRENCE G. WALLACE

General Counsel Deputy Solicitor General
CHRISTOPHER J. WRIGHT 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

MAY 1997

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0034%3A11. Public record. Not legal advice.