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

\

No. 96-779

In the Supreme Court of the Anited 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

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.

D

ae ed eee ae eo, Are eee

D r

TABLE OF CONTENTS

Interest of the Federal Communications Commission and

II. 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

cal eee

TABLE OF AUTHORITIES

Cases:

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

(D.C. Cir. 1975), cert. denied, 425 U.S. 984 (1976) ...

Alabama Educ. Television Comm'n, 50 F.C.C.2d 461

—

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

2

Avins v. Rutgers, 885 F.2d 151 (8d Cir. 1967), cert.

denied, 390 U.S. 920 (1988) . ... . . .

Block v. Meese, 798 F.2d 1308 (D.C. Cir.), cert.

denied, 478 U.S. 1021 (19886) .. . . . . .

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

neee 09

Buckley v. Valeo, 424 U.S. 1 (1976) 6

(II)

r A ee er rn er oe

14

3

7,8

19

18

IV

Cases—Continued: Page

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

94 (1973) — — 14, 15, 19, 21

CBS, Inc. v. FCC, 458 U.S. 367 (1881) 5, 20

Carol Music, Inc., 37 F.C. C. 379 (198640)) 4

Chandler v. Georgia Pub. Telecommunications

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

denied, 502 U.S. 816 (1991) 11

Chisholm v. FCC, 588 F.2d 849 (D.C. Cr). cert.

denied, 429 U.S. 890 (1976) ...... ... 5, 6

City of New York Municipal Broadcasting Sys.,

56 F.C.C.2d 169 (1975) 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) 8

Cornelius v. NAACP Legal Defense & Educ. Fund,

Inc., 473 U.S. 788 (1985) 24, 25

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) 4

Cyril E. Sagan, 1 F.C. C. Red 10 (1986) .. . 6

Denver Area Educ. Telecommunications Consortium,

Deregulation of Radio, 84 F.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, 707 F.2d 1418 (D.C.

Cir. 1983) on 4

Cases—Continued:

Acne 44 F. C. C. 2308

I —ͤ—

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

(1984) — 6,7, 8, 14, 16, 21

FCC v. Midwest Video Corp., 440 U.S. 689 (1979) ..

on Pottsville Broadcasting Co., 309 U.S. 134

288üñ314é444414ͤ141ł1/%7én.ñ!ñ⸗ñßÄv².

FCC v. ——— 309 U.S. 470

8 — — . —

Farmers Educ. & Coop. Union v. WDAY, Inc.,

r

sop ga 11 F.C. C. Red 11,101

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

—— ————— —

Heffron v. International Society for Krishna

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

Henry Geller, 95 F. C. C. 2d 1236 (1983), aff d sub nom.

League of Women Voters Educ. Fund v. FCC, 731

rer

International Society for Krishna Consciousness, Inc.

v. Lee, 506 U.S. 672 (1992) .........cccsecevseesesseseeeseesees

Iowa State Univ. Broadcasting Corp., 9 F.C. C. Red

481 (1998), aff’d sub nom. Iowans for WOI-TV, Inc.

v. FCC, No. 94-1014, 1995 WL 116251 (D.C. Cir.

Feb. 24, 1996) (50 F.3d 1096 (Table)) ......................

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

417 (D.C. Cir. 1980) 33

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

9999 —

Lebron v. National R. R. Passenger Corp., 513 U.S.

9

Lehman v. City of Shaker Heights, 418 U.S. 298

——— ir'F

15

16

17

VI VII

f 5 t Ww — 487 U.S. 42 (1988)

- est v. ims, 487 U.S. 42 (1988) . . 16

. Seas Pubs © . No. 96- - Widmar v. Vincent, 454 U.S. 268 (1981) 2, 16, 17, 18

— — o. ~~ ) Yale Co. v. FCC, 478 F.2d 594 (D.C

3645SIDM — — Broadcasting f 8 C.

No. 96-3645SIDM (Bth Cir. Dec. 10, 1996)... — Cir.), cert. denied, 414 U.S. 914 (1978) . . . 4

Mississippi Auth. for Educ. Television, 71 F.C.C.2d Constitution, statutes and regulation:

1296 (1979) ... — 8 as I MEIN TE ssisocenetibsetsectsssetescscsocsonsesecsese passim

Muir v. Alabama Educ. Television Comm n, 688 rr ee oe nee oe One. £008 ... :

F.2d 1083 (5th Cir. 1982), cert. denied, 460 U.S. AR

1023 un * — 7, 8, ll 47 US.C. 153(h) TIL LILI TTT „„„„„„„„„„„ũ „„ „„„„„„%„„„ „ „„ 6 6 6 6 6 6 0 4. 15

Office of Communication of United Church of Christ 2 uae. sue (Supp. II 1996) . . . . . 4. *

e v —

859 F.2d 994 (D.C. n 11 ag. 1 UBC. 20 na

425 F.2d 543 (D.C. Cir. 1969) ae) 8 1 5, 8, 9, 19, 20

Perry Educ. Ass'n v. Perry Local Educators I 5

Ass'n, 460 U.S. 37 (1983) 15, 16, 24, 25, 26 47 U.S.C. 399 alata iia acnctetanges 8

Piarowski v. Illinois Community College, 759 F. 2d r i la a a 8

625 (7th Cir.), cert. denied, 474 U.S. 1007 (1985) ..... 19 Educational Television Act of 1962, Pub. L. No.

Polk County v. Dodson, 454 U.S. 312 (1981) ........... 16 . 7

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 Public Broadcasting Act of 1967, Pub. L. No. 90-129,

(1969) . 2,8, 12,21 81 — 2 * * — 1 —

Rosenberger v. Rector & Visitors of Univ. of Radio ’ , 44 Stat. 1162.

Virginia, 115 S. Ct. 2510 (1995) ............. 2, 18, 15, 16, t Act of 1996, Pub. L. No. 104-104,

e "4 208, 110 Stat, 12 (tobe codified at 47 U

Rust v. Sullivan, 600 U.S. 178 (1991) ..... * 50 Ne.) Supp. II 1996) 2. 3

Scripps-Howard Radio, Inc. v. FCC, 316 US. 4 § 204(a)(1), 110 Stat. 113 (to be codified at

(1942) — 5 47 U.S.C. 30900 (Supp. II 19986) 3

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 47 CFR. 73.621 ..... rn 1 -

ä 16, 21

Television Assignments, Sixth Report and Order, 3

41 F.C.C. 148 (1952) 7

Trustees of Univ. of Pennsylvania, 69 F.C.C.2d 1°94 >

(1978) . 4 ‘

Turner Broadcasting Sys., Inc. v. FCC, 512 US. 7

622 (1994) 8, 18 3

United States v. Kokinda, 497 U.S. 720 (1990) ........ 17

WCHS-AM-TV Corp, 8 F.C.C.2d 608 (1967) ............ 4

0 ad Bate . 6 ee, Betis, ue ee |e

~~. > ee oe

In the Supreme Court of the Anited States

OCTOBER TERM, 1996

No. 96-779

ARKANSAS EDUCATIONAL TELEVISION COMMISSION,

PETITIONER

v.

RALPH P. FoRBES

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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 develop-

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, 187 (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

3

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 §§ 203,

204(a)(1), 110 Stat. 112-113 (to be codified at 47 U.S.C.

307(c)(1), 30900 (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 543, 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

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 1413 (D.C. Cir. 1988). 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 Banc Programming Inquiry, 44 F.C. C. 2308,

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. 153(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

Communications Act draws an important distinction,

however, between political programming and political

advertisements, over which candidates, rather 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-

tising. Section 312(a)(7) gives all legally qualified

federal candidates a limited right of “reasonable”

access to the airwaves, and Section 315(a) provides

that, if any legally qualified candidate for public office

“use[s}” a broadcast station (by, for example, purchas-

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. v.

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-

date of the broadcaster’s station. 47 U.S.C. 315(a). It

is instead an intrinsic part of any broadcaster’s

journalistic efforts to inform the public about political

developments. Accordingly, the Communications Act

exempts news programming, including such “bona

fide news events” as televised candidate debates,

from any “equal opportunities” requirement that

would grant rights of 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.

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

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,

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

US. at 393 n.22.

With few exceptions, public broadcasters are sub-

censee retain editorial control over the content of its

Since 1962, the fed ral 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 u, 688 F. 2d

1033, 1040 (5th Cir. 1982) (en banc), cert. denied, 460 U.S. 1023

(1983).

2 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;

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-

selection of programming.

Educ. Television, 71 F.C.C.2d 1296, 1308 n.12 (1979);

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

See Turner Broadcasting Sys., Inc. v. FCC, 512 US.

650-651 (1994); League of Women Voters, 468 U.S. at

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

2 3

ER

:

|

F

8

f

f

in Enforcing Section $12(a)(7) of the Communications Act, 68

F.C.C.2d 1079, 1092-1094 (1978).

at issue, to participate in the debate. That decision

rested not on any disagreement with respondent’s

remedies under Sections 312(a)(7) and 315(a) of the

|

1

!

~

10

“must have a legitimate reason to exclude him strong

enough to survive First Amendment scrutiny.” Id. at

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

tion that the decision to exclude respondent from the

:

EE

i

5

22

<>

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

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

if (as the court of appeals believed) the debate at is-

sue here could properly be characterized as a limited

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 R enberg

115 S. Ct. at 2517. 8 85

ARGUMENT

The court of appeals held that a state- entity public

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.” CBS, Inc. v.

Democratic Nat] 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, ¢.g.,

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 doubt, but that is no

reason to deny the discretion Congress provided.

Calculated risks of abuse are taken in order to pre-

serve higher values.” CBS, Inc., 412 U.S. at 124-125.

That judgment is no less applicable to state-entity

broadcasters 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

15

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 the 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); cf. 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.

1

18

series of interrelated journalistie 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 (3d 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.’

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 co:nmercial 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-

easter 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, supra; 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. Ibid. 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. 31207); 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”).

e. 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. Iowa 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, “(unlike ‘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 judgmentſs] routinely made by news-

ple” 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.” Id. 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

thle] 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

— tt i, Wi te a et

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. Id. 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; ef. 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

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

eine Solicitor G '

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