# Appendix — Columbia Broadcasting System, Inc. v. Democratic National Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0152%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 412 U.S. 94 ## Text APPENDIX A: APPENDIX B: APPENDIX C: APPENDIX D: TABLE OF CONTENTS Opinion of the United States Court of Appeals for the District of Co- lumbia Circuit, August 3, 1971 _.__ Order Entering Judgment of United States Court of Appeals for the Dis- trict of Columbia Circuit, August 3, 1971 Order of the United States Court of Appeals for the District of Columbia Circuit Denying Petitions for Re- hearing, October 4, 1971... Memorandum Opinion and Order of the Federal] Communications Com- mission, Adopted August 5, 1970, and Released August 12, 1970 __._. Page C-1 Al APPENDIX A UNITED STATES COURT OF APPEALS FOR THE DISTRICT oF COLUMBIA CIRCUIT No. 24,492 BUSINESS EXECUTIVES’ Move FOR VIETNAM PEACE, PETITIONER Vv. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATEs oF AMERICA, RESPONDENTS Post-NEWSWEEK STATIONS, CAPITAL AREA, INC., INTERVENOR No. 24,537 ™ DEMOCRATIC NATIONAL COMMITTEE, PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES oF AMERICA, RESPONDENTS AMERICAN BROADCASTING COMPANIES, INC. and COLUMBIA Bro ADCASTING SYSTEM, INC., INTERVENORS Petitions for Review of Orders of the Federal Communications Commission Decided August 3, 1971 — A2 Mr. Joseph A. Califano, Jr., with whom Messrs. David H. Lloyd and Irvin B. Nathan were on the brief, for peti- tioner in No. 24,537. Mr. Daniel R. Ohlbaum, Deputy General Counsel, Fed- eral Communications Commission, for respondents. : Messrs. John H. Conlin, Associate General Counsel, and Stuart F. Feldstein, Counsel, Federal Communications Commission, were on the brief for respondents in No. 24,492. Mr. John H. Conlin and Miss Katrina Renouf, Counsel, Federal Communications Commission, were on the brief for respondents in No. 24,537. Mr. Henry Geller, General Counsel, Federal Communi- cations Commission, at the time the record was filed, also entered an appearance for respondent Federal Communi- cations Commission in No. 24,492. Mr. Howard E. Shapiro, Attorney, Department of Jus- tice, entered an appearance for respondent United States of America. Mr. Ernest W. Jennes, with whom Messrs. Charles A. Miller and Henry Goldberg were on the brief, for inter- venor in No. 24,492. Mr. J. Roger Wollenberg, with whom Messrs. Timothy B. Dyk and Daniel Marcus were on the brief, for inter- venor Columbia Broadcasting System, Inc. in No. 24,537. Messrs. James A. McKenna, Jr. and Vernon L. Wilkin- son were on the brief for intervenor American Broadcast- ing Companies, Inc. in No. 24,537. Before WRIGHT, MCGOWAN and ROBINSON, Circuit Judges. Opinion filed by WRIGHT, Circuit Judge. Dissenting opinion filed by McGowan, Circuit Judge. A3 WRIGHT, Circuit Judge: In these cases we are asked to decide whether a broadcast licensee may, as a general pol- icy, refuse to sell any of its advertising time to groups or individuals wishing to speak out on controversial public issues. The Federal Communications Commission con- cluded that such a policy is permissible.’ We reverse the Commission’s decision. And we remand for further pro- ceedings. The principle at stake here is one of fundamental im- portance: it concerns the people’s right to engage in and to hear vigorous public debate on the broadcast media. More specifically, it concerns the application of that right to the substantial portion of the broadcast day which is sold for advertising. For too long advertising has been considered a virtual free fire zone, largely ungoverned by regulatory guidelines. As a result, a cloying blandness and commercialism—sometimes said to be characteristic of radio and television as a whole—have found an especially effective outlet. We are convinced that the time has come for the Commission to cease abdicating responsibility over the uses of advertising time. Indeed, we are convinced that broadcast advertising has great potential for enliven- ing and enriching debate on public issues, rather than drugging it with an overdose of non-ideas and non-issues as is now the case. : Under attack here is an allegedly common practice in the broadcast industry—airing only those paid presenta- the permissibility of this practice “goes to the heart of the system of broadcasting which has developed in this coun- 1 Business Executives Move for Vietnam Peace, 25 F.C.C.2d ro (1970); Democratic National Committee, 25 F.C.C.2d 216 1970). A4 try.” ? We disagree. The actual issue before us is relative- ly narrow and we decide it narrowly. We do not have to cut to the “heart” of our system of broadcasting; we leave undisturbed the licensee’s basic right to exercise judgment and control in public issue programming and the sale of advertising time. All we do is forbid an extreme form of control which totally excludes controversial public debate from broadcast advertising time. We hold specifically that a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted. We do not hold, however, that the planned announcements of the petitioners—or, for that matter, of any other par- ticular applicant for air time—must necessarily be ac- cepted by broadcast licensees. Rather, we confine ourselves to invalidating the flat ban alone, leaving it up to the li- censees and the Commission to develop and administer reasonable procedures and regulations determining which and how many “editorial advertisements” will be put on the air. I Both petitioners in these cases are organizations whose primary modus operandi is public persuasion and com- munication. As a rule, they do not attract attention to their views by performing newsworthy acts, such as en- gaging in civil disobedience or organizing mass demon- strations. They depend, instead, on their ability to get a hearing—as full as possible and as direct as possible— from the general public. Surely radio and television would seem to be the most effective media for their purposes. Yet they contend that their self-expression on those media— and, therefore, the public’s access to their views—is signi- ficantly inhibited by broadcaster policies barring any and all paid editorial messages from the airwaves. 2 Democratic National Committee, supra Note 1, 25 F.C.C.2d at 221. " Ad The Business Executives Move for Vietnam Peace (BEM) is a national organization of over 2,700 business owners and executives, organized in Opposition to the war. BEM apparently believes that it is in a position to offer the public a unique viewpoint on what is no doubt one of the great political and moral issues of our time. In order to communicate that viewpoint, it prepared several record- ed one-minute radio announcements. The announcements urged “immediate withdrawal of American forces from Vietnam and from other overseas military installations” and featured statements by leading businessmen and re- tired military officers whose views may carry particular weight with the general public. BEM sought to buy time to air these announcements on the broadcast media, just as commercial advertisers do. It must have seemed an extra- ordinarily effective means of directly communicating its ideas and sense of urgency to the broad listening audience. In June 1969 BEM sought to purchase time for its an- nouncements on WTOP, an all-news radio station in the nation’s capital. Like most broadcasters, WTOP sells sub- stantial amounts of time for short advertisements. Yet over a period of eight months it repeatedly refused to sell any time to the business executives. WTOP cited no par- ticular objection to the planned announcements. Rather, it relied solely upon an across-the-board policy barring all editorial advertisements—“its long established policy of refusing to sell spot announcement time to individuals or groups to set forth views on controversial issues,” 3 BEM then filed a complaint with the Federal] Communi- ’ WTOP also stated “that ‘subjects of this type require a more in-depth analysis than can be provided in a 10, 20, 30 or 60 second announcement.’” Business Executives Move for Vietnam Peace, of its antiwar views. For a discussion of the Permissibility of a flat ban on “short” public issue advertisements, see text at page [A-26] infra. ae Aé6 cations Commission alleging violations of both the fairness doctrine and the First Amendment. The Democratic National Committee (DNC) came to the Commission with much the same sort of complaint. It stated that it was in the process of planning an extensive media campaign to communicate the Democratic Party’s views on crucial issues and to solicit funds. In our politi- cal system, it is of obvious importance that the public have aecess—as direct and full as possible—to the views of the political parties. A party currently out of office may well regard such communication as particularly vital. Yet DNC alleged that it confronted several obstacles to direct self- expression on the broadcast media, among them the re- fusal of some broadcasters to sell time for comment on controversial public issues. Unlike the business executives, DNC did not complain of any individual refusal to sell time for a particular editorial advertisement. Rather, it cast the issue in a somewhat different light by seeking a declaratory ruling from the Commission that “[a] broad- caster may not, as a general policy, refuse to sell time to . responsible entities, such as DNC, for the solicitation of funds and for comment on public issues.” The Commission considered the two cases together and rejected the arguments of both BEM and DNC on the same day. The issues involved did not overlap completely. For example, the Commission found a defect in the vague- ness and generality of BEM’s fairness doctrine com- plaint,* and it resolved DNC’s contention concerning fund *In its original complaint, BEM alleged generally that WTOP had failed to cover antiwar views fully and fairly. However, it offered no specific proof whatever of its allegations, and WTOP, on the other hand, offered a lengthy compilation of news and interview shows which aired the opinions of some antiwar groups and individuals. BEM has not pressed its fairness doctrine argu- ment on appeal, but rather has relied solely upon the First Amend- ment right-of-access contention. which it also made before the Commission. Therefore, we need not consider here the Commis- sion’s holding that BEM failed to shoulder its full burden of going forward under the fairness doctrine. “ A7 solicitation by noting that all three television networks had agreed to accept such solicitations and by Stating that any broadcaster policy of confining Solicitations to elec- “reasonableness” Standard of the fairness doctrine, ac- ceptance of that particular format is by no means com- — pulsory. would “be prepared, consistent with its other obligations, to accept such orders for time from major politica] Parties as can be ac- commodated on a reasonable basis.” And NEC stated it “has no Policy which would prevent the Purchase of program time en- visioned by DNC.” We are constrained to note here that any dis- saaaTicainimmiinal a A8 Second, the Commission interpreted the First Amend- ment to be equally permissive. Its reasoning on this point was rather sparse. It made no effort, for example, to identify the peculiar First Amendment interests attaching to paid editorial announcements as opposed to coverage of controversial issues on news, interview or discussion programs. Instead, it was content to raise the spectre of the “chaos” and other practical difficulties that, it said, would attend a right of access to the broadcast media. The Commission concluded that the fairness doctrine’s re- quirement of full and fair coverage—tolerant as it is of a flat ban on the editorial advertisement format of ex- pression—provides as much protection of public debate as the First Amendment demands. Before this court, both petitioners make substantially the same attack on the Commission’s decision. They do not ask for a ruling that all editorial advertisements submitted to broadcasters must be accepted. Nor do they seek to foreclose entirely the broadcasters’ exercise of reasonable discretion. What they advocate is a limited right of access to radio and television for paid public is- sue announcements. They attack the Commission’s ruling that a total exclusion of such announcements is permis- sible. | Petitioners have left r ne unturned in their attack on the exclusion of editorial advertising. They have in- voked the Communications Act’s “public interest” re- ~ quirement * and the statutory-regulatory fairness require- ~ ment *—as well as First Amendment principles—to sup- port their argument. In other contexts, we might attempt *47 U.S.C. §§ 307(d), 309(a) (1964). 747 U.S.C. §315(a) (1964). For a discussion of the regulatory development of the fairness doctrine and its eventual adoption in the Communications Act, see Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 375-381 (1969). A9 to avoid the constitutional issue by coming to a decision on nonconstitutional grounds. But that course is neither fruitful nor possible here. Speaking specifically of the Commission, the Supreme Court has stressed the “venerable principle that the con- struction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 881 (1969). Thus the nonconstitutional question here is whether there are “compelling indica- tions” that the public interest and fairness requirements compel some opening for public issue advertisements on radio and television. In matters of allocating burdens, re- forming procedures and ensuring full attention to all relevant factors in agency decision making, we have not been reluctant to reverse the Commission in order to vin- dicate “the public interest.” * We have also intervened to see that broad policies developed by the Commission un- der the fairness doctrine are applied fully and consist- ently to all cases.’ However, when we are asked to re- verse major substantive interpretations of the grand and open-ended statutory requirements, we tread somewhat more difficult terrain. Obviously, the requirements mean something and there must be a great range of actions which they foreclose to the Commission; but, in establish- ing the necessary guidelines, we must ourselves seek ex- trinsic guidance. In these cases, that guidance comes from the Constitu- tion. Petitioners have presented no “compelling” evidence from legislative history to indicate a congressional policy in favor of, or even a real congressional attention to, editorial advertising. Rather, their arguments on the non- 8 See, e.g., Office of Communication of United Church of Christ Vv. F.C.C., 128 U.S.App.D.C. 328, 359 F.2d 994 (1966); 138 U.S. App.D.C. 112, 425 F.2d 548 (1969). * See, e.g., Retail Store Employees Union, Local 880 v. F.C.C., —— U.S.App.D.C. ——, 436 F.2d 248 (1970). sorts : a A 10 constitutional points closely parallel their constitutional arguments. The general policy considerations which they invoke encompass all of the interests that would have to be evaluated under the relevant First Amendment law. It would make no sense for us to blind ourselves to the constitutional status of those interests and to the doctrine that has been build up around them. What then might be the “compellfng indications” we are to consider? The ones which seem to us truly “com- pelling” involve First Amendment principles. Thus we conclude that the constitutional question must be faced and is, indeed, the essence of these cases. Whether our decision is styled as a “First Amendment decision” or as a decision interpreting the fairness and public interest requirements “in light of the First Amendment” matters little. ITI It has always been clear that the broadcast media—so vital to communication in our society—are affected by strong First Amendment interests.” Yet the nature of those interests has not been so clear; an evolution of con- stitutional principles in this area is still very much in progress. Until quite recently, the only interest raised to constitutional status was that of the broadcast licensees themselves. In a leading case, the Commission’s powers over program content were attacked and upheld with reference solely to the licensees’ right of immunity from governmental interference with their “speech.”’ The scarc- ity of broadcast frequencies was said to justify some reg- ulation trenching on the broadcasters’ First Amendment interests. National Broadcasting Co. v. United States, 319 U.S. 190 (1948). These cases mark a new effort by mem- 10 See, e.g., United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948). Congress itself has prohibited any interference by the Commission with “the right of free speech by means of radio communication.” 47 U.S.C. § 326 (1964). All bers of the public to assert their First Amendment in- terests in the operations of radio and television. “[First] Amendment limits only the action of Congress or of agencies of the federal government and not private We believe the path is now clear of such doctrinal im- pedimenta. Perhaps the most important recent develop- concern and activism regarding the broadcast media, the Court stated that “the people as a * * * collective right to have the m ment.” It went on to Say: ™ 395 U.S. at 390. _ ee Ai2 “* * * The right of free speech of a broadcaster * * * does not embrace a right to snuff out the free speech of others. * * * * + & ® “* * * [A] licensee has no consitutional right * * * to monopolize a radio frequency to the exclu- sion of his fellow citizens. * * * * * * * “* * * It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. * @ #99 12 Of course, the Red Lion Court had to invoke the pub- liec’s First Amendment interests for a narrow purpose only—to uphold legislative and administrative action al- ready taken. It did not have to reach the issue, presented in these cases, of invoking those interests for a direct attack on broadcasters’ policies approved by the Commis- sion. However, the language used by the Court is signifi- cantly expansive. It spoke of a First Amendment “right” held by “the people as a whole.” A constitutional “right” is hardly deserving of the name if it can function only to permit legislative and administrative action and if its content depends entirely upon the current policies of the legislative and executive branches. The First Amend- ment, after all, contains nothing analogous to the fifth section of the Fourteenth Amendment, authorizing Con- gress to enforce constitutional interests unenforceable by the courts.” For many purposes, it is proper to consider broadcast licensees as “private” businesses. Yet, for purposes of 12 Id, at 387, 389, 390. 18 On the effect of the specific language in the fifth section of the Fourteenth Amendment, see Oregon v. Mitchell, 400 U.S. 112 (1970) ; Katzenbach v. Morgan, 884 U.S. 641 (1966). Of course, the Fourteenth Amendment does not apply to federal regulation of the broadcast industry, since no interference with the states is involved. A 13 the First Amendment, “ [o]wnership does not always mean absolute dominion.” Marsh v. Alabama, 326 U.S. 501, 506 (1946). “Conduct that is formally ‘private’ may become so entwined with governmental policies or so im- pregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.” Evans v. Newton, 382 U.S. 296, 299 (1966). The Red Lion Court itself commented on the impermissi- bility of “private censorship” and cited old doctrine that ““{f]reedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.’” * The reach of the First Amendment, therefore, depends not upon “pub- lic’ —“private” technicalities, but upon more functional considerations. They are (1) the governmental involve- ment in or public character of a particular enterprise, and (2) the importance or suitability of that enterprise for the communication of ideas.® The last few decades of court decisidtis expanding the concept of “state action” have focused on myriad indicia of governmental involvement and public character. Many 4 395 U.S. at 392, quoting Associated Press v. United States, 326 U.S. 1, 20. (1945). ** Most “state action” cases, of course, have been concerned with equal protection rights under the Fourteenth Amendment rather than with free speech rights under the First Amendment. How- ever, the principle of governmental involvement developed therein has been applied equally well in the First Amendment context. See, e.g., Public Utilities Comm’n v. Pollak, 343 U.S. 451 (1952) ; Farmer Vv. Moses, S.D. N.Y., 232 F.Supp. 154 (1964). The principle of “public, character” may be found in decisions dealing directly with application of First Amendment rights to “private” entities. See., e.g., Marsh vy. Alabama, 326 U.S. 501 (1946) ; Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968); Tanner v. Lloyd Corp., D. Ore., 308 F.Supp. 128 (1970) ; Diamond v. Bland, 91 Cal. Rptr 501, 477 P.2d 738 (1970). The importance and suitability of a particular place for the com- munication of ideas has been. stressed in all of the cases cited above, as well as in all of the access-to-public forum cases, see Notes 40-43 infra. a 11 CRE OI Al4 of them are apparently applicable to the operations of the broadcast industry.* But we need stress only two more basic factors which, taken together, bring broadcast li- censees well within the ambit of the First Amendment for the purposes of these cases. First, the general char- acteristics of the broadcast industry reveal an extraord- inary relationship between the broadcasters and the fed- eral government—a relationship which puts that industry - in a class with few others.’ It is one of “interdepend- ence” and “joint participa[tion].” See Burton v. Wil- mington Parking Authority, 365 U.S. 715, 725 (1961). “(T]he [federal] regulatory system,” it has been said, “is as much responsible for the existence of a broadcast- ing medium as the Bureau of Engraving is responsible for the existence pf United States currency.” ™ It has 1¢ Dissenting in the BEM case now under review, Commissioner Johnson dealt exhaustively with the Supreme Court’s state action doctrine, isolating eight separate indicia of “state action.” He argued very strongly that all eight indicia apply to broadcast licensees. Business Executives Move for Vietnam Peace, supra Note 1, 25 F.C.C.2d at 258-264. Because this highly analytical—one might say mechanical—approach runs the risk of reading Supreme Court opinions for more than they mean, we have chosen to paint with a broader brush. Ours is the approach which the Supreme Court seems in fact to have used in the past. 17In particular, broadcasting may be easily distinguished from the newspaper industry in terms of “state action.” In two recent decisions, courts have held that newspapers are not subject to the First Amendment. Associates & Aldrich Co., Inc. v. Times Mirror Co., 9 Cir., 440 F.2d 188 (1971); Chicago Joint Board v. Chicago Tribune Co., 7 Cir., F.2d , 89 U.S. L. WEEK 2360 (Decem- ber 17, 1970). While the governmental involvement in and public character of newspapers in surely less than that of broadcasting, we of course need express neither agreement nor disagreement with the cited decisions here. 18 Pemberton, The Right of Access to Mass Media, in N. DORSEN (ed.), THE RIGHTS OF AMERICANS 277, 290 (1971). The Govern- ment is also directly responsible for the very existence of particular broadcasters. “[E)xisting broadcasters have often attained their present position because of their initial government selection in competiton with others * * *. * * * [Their present] advantages are the fruit of a preferred position conferred by the Government.” Red Lion Broadcasting Co. Vv. F.C.C., supra Note 7, 395 U.S. at 400. \ Al5 long been recognized that the airwaves are “a limited and valuable part of the Public domain,” * leased out temporarily by the federal government which retains ulti- mate control over them.” Federal agency review and guidance of broadcasters’ conduct is automatic, continu- ing and pervasive.” For broadcast licensees are consid- ered the “proxies” or “fiduciaries” of the people.” Al- most no other private business—almost no other regulated private business—is so intimately bound to government and to service to the commonweal. A second and even more important factor is the specific governmental involvement in the broadcasters’ action now under review here. All of the cases in which previous courts have characterized broadcasters as mere “private corporations” immune from First Amendment constraints, see text at page [A-11] su » have involved direct suits against broadcast licensees. In the cases before us now, 1° Office of Communication of United Church of Christ v. FCC. supra Note 8, 123 U.S.App.D.C. at 337, 359 F.2d at 1008. licensing or delegation relationship is not, of course, enough by itself to establish state action; licensed Pharmacists cannot be mental involvement and the public character of the enterprise in question remain the final tests of state action. *1 The activities of a governmental regulatory agency have also been emphasized in at least one of the Supreme Court’s expansive state action decisions. See Public Utilities Comm’n V. Pollak, supra Note 15, 343 U.S. at 462, citing American Communications Ass’n V. Douds, 339 U.S. 382, 401 (1950) (“[WJhen authority derives in part from Government’s thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself.’”’). 22 See Red Lion Broadcasting Co. vy. F.C.C., supra Note 7, 395 U.S. at 394, 396; Office of Communication of United Church of Christ v. F.C.C., supra Note 8, 123 U.S.App.D.C. at 337, 359 F.2d at 1008. — A 16 however, the Commission has given its imprimatur to the flat ban on editorial advertising. It specifically consid- ered and specifically authorized the flat ban. Thus we are called upon to review not simply a private decision, but a decision by a government agency, a decision which must inevitably provide guidance for future broadcaster action. There is ample authority for the principle that specific governmental approval of or acquiescence in challenged action by a private organization indicates “state action.” * Indeed, in a case similar to ours the Supreme Court held that a private bus company franchised by the federal gov- ernment and regulated by the District of Columbia Pub- lie Utilities Commission could be subject to First Amend- ment constraints. It emphasized the specific regulatory acquiescence in the challenged action of the bus company: «* * * In finding [state action] we do not rely on the mere fact that Capital Transit operates a public utility on the streets of the District of Columbia under authority of Congress. Nor do we rely upon the fact that, by reason of such federal authoriza- tion, Capital Transit now enjoys a substantial mo- nopoly of street railway and bus transportation in the District of Columbia. We do, however, recognize that Capital Transit operates its service under the regulatory supervision of the Public Utilities Com- 28 The Supreme Court has said that “action of state courts and judicial officers in their official capacities is to be regarded as action of the State * * *.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948). See New York Times Co. Vv. Sullivan, 376 U.S. 254 (1964); Van Alstyne, Mr. Justice Black, Constitutional Review, and the Talis- man of State Action, 1965 DUKE L. J. 219, 227-280. See also this court’s discussion of the Shelley principle—which surely must apply to actions of a federal administrative agency specifically approving private action—in Edwards v. Habib, 1380 U.S.App.D.C. 126, 397 F.2d 687 (1968). Specific governmental acquiescence, as well as specific approval, has also been a focus of Supreme Court state action decisions. See Marsh v. Alabama, supra Note 15, 826 US. at 507 & n.4, 509; Burton v. Wilmington Parking Authority, supra Note 20, 865 U.S. at 725. Al7 Public Utilities Commission v. Pollak, 343 U.S. 451, 462 (1952). (Footnote omitted. ) Broadcasting’s importance and suitability for commu- nication of ideas need not be labored. Mere presence of large and appropriate audiences (and thus opportunities for effective communication) has sometimes been empha- sized by the courts to show the relevance of First Amend- ment protections.“ In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Ine., 391 U.S. 308 (1968), for example, the Supreme Court held that a ** See, e.g., Wolin v. Port of New York Authority, 2 Cir., 392 F.2d 83, 90-91 ( 1968) (“The Propriety of a place for use as a public forum-* * * [may be established if] the place is where the relevant A 18 leafleter are becoming almost obsolescent; their Saturday afternoon audiences have increasingly moved indoors—in front of their television sets.* Moreover, unlike most of the private entities held to be subject to First Amendment constraints, the broadcast media are specifically dedicated to communication. They function as both our foremost forum for public speech and our most important educator of an informed people. In a populous democracy, the only means of truly mass communication must play an absolutely crucial role in the processes of self-government and free expression, so central to the First Amendment. That can be said of almost no other “private” enterprise. IV Broadcast licensees, then, serve not only as “speakers” but also as administrators of a highly valuable communi- cations resource, subject to First Amendment constraints. Their dual role demands that their own constitutional in- terests in free speech coexist with those of the general public. But what are the dimensions of the public’s First Amendment interests in the operation of radio and tele- vision? And how do they apply to the issue of editorial advertising? It is particularly important that these cases deal only with the public’s. First Amendment interests in broad- casters’. allocation of advertising time. They deal only with time relinquished by broadcasters to others; peti- tioners argue only that, in relinquishing that time, broad- casters must not discriminate against protected expres- sion. In normal programming time, closely controlled and edited by broadcasters, the constellation of constitutional interests would be substantially different. In news and 25 The Supreme Court has noted that broadcast “technology * * * supplants atomized, relatively informal communication with mass media as a prime source of national cohesion and news * * *.” Red Lion Broadcasting Co. Vv. F.C.C., supra Note 7, 395 U.S. at 386 n.15. A19 documentary presentations, for example, the broadcasters’ own interests in free speech are very, very strong.” The Commission’s fairness doctrine properly leaves licensees broad leeway for professional judgment in that area. But in the allocation of advertising time, the broadcasters have no such strong First Amendment interests. Their speech is not at issue; rather, all that is at issue is their decision as to which other parties will be given an oppor- tunity to speak. Though the broadcasters themselves have no substan- tial First Amendment interest in the allocation of adver- tising time, we might expect that the interest of mem- bers of the public—potential advertisers—would be quite strong. However, the Commission and the broadcaster- intervenors have argued just the opposite. They contend that the public’s constitutional concerns do not extend to advertising time. Thus we must decide whether the sub- stantial block of the broadcast day devoted to advertising is but a vacuum, devoid of First Amendment constraints, in the midst of a medium powerfully affected by those constraints—a desert in the midst of an oasis. , The Commission and intervenors work from the follow- ing premise. They define the public’s overall constitu- tional interests in the operations of radio and television quite narrowly. The public’s only interest, they suggest, is as viewers and listeners—not as speakers. They cite to us the Red Lion Court’s mention of “the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences” over the broad- cast media.” And they read that statement to set forth not only an interest of the public, but the only interest of the public. Working from that premise, the Commission and inter- venors contend that the public already receives “suitable 26 See id. at 396. 27 Id. at 390. A 20 access” to controversial views on normal programming time. Application of the fairness doctrine’s requirement of full and fair coverage of public issues in non-adver- tising time, they suggest, ensures that all views on these issues will in fact be presented. They assume that edi- torial advertising adds nothing new to the debate. The fairness guarantee alone, they say, is enough to elimi- nate petitioners’ claim on advertising time—and enough to satisfy the First Amendment. We disagree. Surely the public’s interest in free access to the full spectrum of ideas and controversial views on radio and television is highly important. The right to receive ideas and information is deeply rooted in First Amendment law.* The Red Lion Court stressed that right, since it was the one primarily relevant to the fairness doctrine rules at issue in the case. But we do not believe that the Red Lion decision makes the goal of an informed public the exclusive First Amendment interest constraining broadcasters. Certainly the Supreme Court has done so in no other context. The public has a First Amendment interest in the mode or manner—as well as the content—of public debate aired on the broadcast media. The Red Lion Court itself stated specifically that “[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas [in the broadcast media].” * This court, similarly, has said that the Commission is obliged to administer the airwaves “in such a manner that * * * debate on public issues is ‘uninhibited, robust and wide-open.’” National Ass’n of Theatre Owners v. F.C.C., 186 U.S.App.D.C. 28 See Stanley v. Georgia, 394 U.S. 557, 564 (1969); Lamont v. Postmaster General, 381 U.S. 301, 307-308 (1965) (Mr. Justice Brennan, concurring); Martin v. City of Struthers, 319 U.S. 141, 143 (1948). The “right to receive,” however, has not been con- sidered the central First Amendment interest, and never the only First Amendment interest. 29 395 U.S. at 390. (Emphasis added.) ees, — A 21 352, 365, 420° F.2d 194, 207 (1969). The reference to “uninhibited” debate is, of course, borrowed from the Supreme Court’s decision in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The Court there extended First Amendment protection to some forms of libel on public officials. It made clear that the Amend- ment’s concern extends beyond the mere fostering of speech whose content will properly inform the public. The New York Times decision establishes a strong First Amendment interest in vigorous, “wide-open” public de- bate. Furthermore, we must take note of a third—but, per- haps, most important—First Amendment interest. That is the interest of individuals and groups in effective self- expression. The Red Lion Court did say that “it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” *” For, as it pointed out, broadcast time is necessarily limited. But the limited nature of broadcast time does not dictate that the individual and group inter- est in self-expression be brushed aside entirely; it allows for a reasonably regulated, “abridgeable” right to speak. The First Amendment values of individual self-fulfillment through expression and individual participation in public debate have long been recognized.*! We all have an inter- est in speaking up ourselves as well as in hearing others. It is too late to argue that the First Amendment protects ideas but not an individual’s interest in expressing them and doing so in his own way. We conclude, then, that the public’s First Amendment interests constrain broadcasters not only to provide the full spectrum of viewpoints, but also to present them in an uninhibited, wide-open fashion and to provide opportu- 8° Td. at 388. 31 See, e.g., T. EMERSON, TOWARD A GENERAL THEORY OF THE First AMENDMENT 4-7 (Vintage ed. 1967). __ Sens Se a A 22 nity for individual self-expression.** How do these three First Amendment interests relate to a more specific inter- est in the airing of editorial advertisements? The answer emerges when we understand the special importance of advertising time to our system of free expression. First, the initial decision to produce an editorial advertisement is in the hands of members of the public. The initiative to present a particular view does not have to come from a member of the broadcaster’s staff. Second, a paid ad- vertisement is basically controlled and edited by the ad- vertiser. He is allowed to present his views in a fashion chosen by himself. If an individual is interviewed for a news program, he may expect his comments to be ab- breviated and edited; reporters’ commentary will qualify what he has to say. For it is the broadcasters’ responsi- bility to be objective, to condense issues into available time for presentation, and to play up or play down views ‘according to the broadcaster’s opinion of what is impor- tant and interesting. But when an individual or group buys time to say its piece, the crucial controls are in its own hands. Editorial advertising is thus a special and separate mode of expression, not simply a duplication of other expression on the same medium.* The importance of initiative and control to the First Amendment interests in wide-open debate and individual self-expression should be obvious. Vigorous, free expres- sion is promoted when members of the public have some 32 Of course, all three of these interests apply to non-advertising time as well as to advertising time. The Commission, in fact, has encouraged broadcasters to present conflicting views through partisan voices as well as through predigested commentary. See Democratic National Committee, supra Note 1, 25 F.C.C.2d at 222- 223. However, as we make clear in text, the selective, edited presentation by the Government’s licensee of partisan voices on news shows, for example, does not erase the special advantages of allowing self-selected partisan voices on advertising time. 33 See text at pages [A-25 - A-26] & Note 37 infra. See also Note, A Fair Break for Controversial Speakers: Limitations of the Fair- ness Doctrine and the Need for Individual Access, 39 GEO. WASH. L. REV. 532, 557-560 (1971). A 23 opportunity to take the initiative and editorial control into their own hands on the broadcast media. It has tradition- ally been thought that the best judge of the importance of a particular viewpoint or issue is the individual or group holding the viewpoint and wishing to communicate it to others. In the First Amendment area, our best guarantee has always been a “free market” in which partisans who feel strongly on particular issues may decide on their own to speak out and to speak out in their own way. The pres- ent system, allowing a flat ban on editorial advertising, conforms instead to a paternalistic structure in which ]i- censees and bureaucrats decide what issues are “impor- tant,” how “fully” to cover them, and the format, time and style of the coverage. Even if broadcasters were to succeed in presenting a full spectrum of viewpoints and partisan spokesmen on non-advertising time, their retention of total initiative and editoral control is inimical to the First Amendment. The importance of fair, objective and full treatment of con- troversial issues on normal programming cannot be doubt- ed. But, as the Supreme Court has said in the context of classroom debate, “supervised and ordained discussion’’ js not enough. Tinker y. Des Moines School District, 393 U.S. 503 (1969). “The Nation’s future depends upon leaders trained through wide exposure to that robust ex- change of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authorita- tive selection,’ ” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). In other words, there is always a strong First Amendment interest in opening up channels for more spontaneous, self-initiated, self-controlled expres- sion.* ‘ ** We are cognizant of current proposals to reform the Commis- luster in the past. We commend the Commission’s consideration of new rules to “encourage and implement” presentation of oppos- ing viewpoints by reemphasizing the obligation to “seek out” A 24 Even in terms of the public’s First Amendment inter- est emphasized by the Commission and intervenors—the interest of “viewers and listeners” in passive access to the full spectrum of viewpoints on radio and television— editorial advertising plays an important role. The con- cept of “full” coverage of “controversial” issues “of pub- lic importance” is vague to say the least, and leaves much controversial issues. Obligations of Broadcast Licensee Under the Fairness Doctrine, 35 FED. REG. 7820 (1970). But, as the Commis- sion says, the proposed rules would be but a “modest * * * step in promoting access to the media.” Jd. at 7821. They go little beyond the present obligation to give “full” coverage to controversial issues. Such an obligation is inherently difficult to define and enforce. At best, the Commission can evaluate only the general willingness of a licensee to “seek out” issues and glaring examples of noncoverage of obviously important issues. The Commission cannot be expected to engage licensees in fine debates over coverage of less obviously life-or-death issues. But the fundamental point—the point we emphasize—is that no matter how “fully” controversial issues might be covered in a perfect broadcasting world, the basic initiative and control remains with the licensee. Because there is not even a partial “free market” opening to the public at large, the crucial] First Amendment interests in decentralized initiative and control go unsatisfied. We realize that there is another possible, but purely speculative, reformation of the fairness doctrine now under consideration which might be supposed to obviate the need for a measure of “free market” access to advertising time. It has been proposed that licensees be required to provide self-edited advertising time to groups or individuals under the fairness doctrine only when a com- mercial advertiser has already taken a controversial position in his - broadcast messages. Such an approach has been taken regarding cigarette advertisements, though that case was said to be extra- ordinary and not to establish a general precedent. Banzhaf v. F.C.C., 182 U.S.App.D.C. 14, 405 F.2d 1082 (1968). But even if that principle were made to apply generally, it would leave the initiative solely in the hands of commercial advertisers: the only issues on which noncommercial groups and individuals could speak through editorial advertisements would be those issues which commercial advertisers had already chosen to raise themselves. Allowing such a narrow group, motivated largely by business profit, to set the agenda for editorial advertising is unconscionable and contrary to First Amendment precepts. It is crucial that noncommercial groups and individuals have the same rights of initiative as commercial advertisers. A 265 to the broadcasters’ discretion (and possible oversight) .* Assuming that broadcasters are sometimes fallible, the goal of a fully informed public is best attained by open- ing of outlets for members of the public to supplement the licensees’ assessments of “importance,” “controversi- ality” and “full” coverage. The Commission’s and inter- venors’ argument might be somewhat stronger if it were designed to support a partial ban on editorial advertising concerning issues and views which have in fact been sub- stantially aired on normal programming time.** The ar- gument is unconvincing, however, in support of a flat, per se ban on any and all editorial advertisements. Moreover, even if “antiwar views,” for example, have in fact been presented on news and interview shows, it’ is not necessarily clear that a particular antiwar editorial advertisement would add nothing to the public’s infor- mation and understanding. “Viewpoints” cannot be so neatly and infallibly catalogued as the Commission would have us believe. Self-expression and public debate are much more subtle phenomena; matters of style and in- tensity of feeling are important components.” Again, ** The guarantees of full and fair coverage have proved particu- larly difficult to define and enforce in the past. They have taken on effective meaning only in the most extreme cases of broadcaster irresponsibility. For a depressing critique of the Commission’s apparent inability to enforce its own standards, see Cox & Johnson, Broadcasting in America and the FCC’s License Renewal Process: An Oklahoma Case Study, 14 F.C.C.2d 1 (1968). ** Even then, however, the special attributes of editorial adver- tising would not be eliminated by the broadcaster’s own coverage. See text at pages [A-21 - A-23] supra & pages [A-25 - A-26] infra. *7In Lee v. Board of Regents of State Colleges, W.D. Wis., 306 F.Supp. 1097 (1969), affirmed, 7 Cir., 441 F.2d 1257 (1971), the court held that a school newspaper was obliged under the First advertisement. “It is readily apparent,” it said, “that a paid adver- tisement can be cast in such a form as to command much greater attention than a letter to the editor. Large type, photographs, A 26 an across-the-board ban on editorial advertisements— leaving the quality of public debate in the control of one licensee, supplemented by no other autonomous inputs— may well ignore opportunities to enliven and enrich the publie’s overall information. We recognize, of course, that the onesidedeness and pri- vate editing of particular “spot” editorial advertisements may in the end steer viewers ‘and listeners away from the “truth” by distorting complex, issues. Being brief, these “spot” messages—no less than ‘normal broadcast news coverage—may not canvass all possible arguments or develop all possible implications of the position they espouse. But that does not mean that they are unpro- tected by the First Amendment. Our Constitution pro- tects many forms of misleading. and overly simplified political expression in order to ensure robust, wide-open debate. “[Nleither factual error nor defamatory content suffices to remove the constitutional shield from criticism’ of official conduct * * *.” New York Times Co. v. Sulli- van, supra, 376 U.S. at 278. Nor does the brevity of the criticism. We must, then, be very, very slow to judge any sort of speech on public issues worthless. The mar- ketplace of ideas protected by the First Amendment, after all, is not governed by the tastes and intellectual standards of the universities or the broadcast newsroom —or even of judicial chambers. We conclude, therefore, that the fairness doctrine’s goal of full and fair coverage of issues on normal pro- gramming time does not eliminate the public’s interest in a further, complementary airing of controversial views during advertising time. We must concur in the Su- preme Court’s only recorded comments on constitutional repeated publication and full pages of space are some of the modes of expression available in an editorial advertisement that might not be available in a letter to the editor.” Id. at 1101. Another court has come to the same result in a newspaper editorial adver- tising case. Zucker v. Panitz, S.D. N.Y., 299 F.Supp 102 (1969). See text at pages [A-27 - A-29] infra. A 27 protection for editoria] advertising—comments made in the context of newspapers, like broadcasting a medium which may be ex ted, if not required, to present the The Court said that editorial] advertisements, unlike com- mercial advertisements, are of fundamental First Amendment concern, since they deal with politica] ques- tions. And it protected them from libel law attack to the Same extent as the newspapers’ own editorial columns, “[a]ny other conclusion * * * might shut off an im- portant outlet for the promulgation of information and ideas by Persons who do not themselves have their freedom of Speech even though they are not members of the press, * * * The effect would be to shackle the First Amendment in its attempt to se- cure ‘the widest possible dissemination of informa- tion from diverse and antagonistic sources,’ * * *” New York Times Co. v. Sullivan, supra, 376 U.S. at 266. ae. We come now to the aspect of the broadcasters’ policy which, petitioners Say, trenches on the First Amendment interest in editorial advertising. The constitutional de- the. First Amendment. However, the very characteristic Which affords it strict constitutional protection is also - the characteristic causing the broadcasters’ challenged A 28 policy to single it out and exclude it from the airwaves. That, we believe, is the crucial aspect of these cases. It is important to note that petitioners do not attack the exclusion of editorial advertising by broadcasters who accept no advertisements whatever.” We do not have to decide whether the broadcast medium inherently amounts to a “public forum” on the order of public streets or parks or meeting halls or even bus terminals.“ We leave open the possibility that broadcasters may constitutionally relinquish no time at all for advertising of any sort. For the issue in these cases is the permissibility of discrimi- nation, within a given block of advertising time, against “eontroversial” speech and in favor of commercial and “noncontroversial” speech. We deal here with a forum that already has been opened up by the licensees them- selves, opened up for direct broadcast presentations by members of the public. Fortunately, we do not write on a clean slate in this area. Six courts have confronted discriminations among types of speech like the one challenged here. Every one of them—four federal courts and two state supreme courts—has held that once a forum, subject to First Amendment constraints, has been opened up for commer- cial and “noncontroversial” advertising, a ban on “con- troversial” editorial advertising is unconstitutional unless 39 DNC’s position is somewhat ambiguous. The ruling which it requested from the Commission would, by its terms, apply to all broadcasters, whether or not they accept any advertising. See text at page [A-6] supra. However, on appeal DNC’s arguments have been focused entirely on broadcasters who do already accept noncon- troversial advertising. The interests of particular licensees in keep- ing all advertising off the air were not explored before the Commis- sion or before this court—for example, an all music station may have a very substantial interest in broadcasting no paid announcements. Because the special issues relating to such licensees were not pre- sented here, we do not decide them. 40 See, e.g., Schneider v. State, 308 U.S. 147 (1939); Hague Vv. C.1.0., 307 U.S. 496 (1939) ; Wolin v. Port of New York Authority, supra Note 24. See generally Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. CT. REV. 1. wn A 29 clearly justified by a “clear and present danger.” Lee v. Board of Regents of State Colleges, W.D. Wis., 306 F. Supp. 1097 (1969), affirmed, 7 Cir., 441 F.2d 1257 (1971); Zucker v. Panitz, S.D. N-Y., 299 F.Supp. 102 (1969) ; Kissinger v. New York City Transit Authority, §.D. N.Y., 274 F.Supp. 488 (1967) ; Hillside Community Church, Inc. v. City of Tacoma, Wash., 455 P.2d 350 (1969) ; Wirta v. Alameda-Contra Costa Transit District, 64 Cal.Rptr 430, 4384 P.2d 982 (1967). We join this un- broken line of authority. First Amendment doctrine governing access to forums for communication has been elaborated often in recent years. The essential test is an exercise in balancing, though weighted in favor of First Amendment values.“ On one hand, the court must assess the constitutionally protected interest in the particular expressive activity in the particular forum. On the other hand, it must assess the importance of other uses of the forum which may be threatened and ‘the extent to which they actually will be disrupted. Access may be denied only if the disruption caused by a particular type of expression (e.g., public speaking, marching, picketing) clearly overrides the “pre- ferred” interest in free speech. Thus there is some right of access by demonstrators to state capitol grounds * but not to a jailyard.** Ordinarily, courts have to make the basic balancing judgment on their own. However, when the administra- . 41 Most of the cases, other than those cited above in text, have involved access to particular places in order to perform expressive activities such as speaking, leafleting, or demonstrating in some fashion. For general discussions of the cases and the principles applied, see H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT (paper etl. 1965); Note, Regulation of Demonstrations, 80 HARV. L. REV. 1773 (1967). There is no reason why the general princi- ples applied in cases involving access to places should not apply to our cases involving access to a particular medium of expression. See Note 24 supra. *2 Coz v. Louisiana, 379 U.S. 536 (1965). * Adderley v. Florida, 385 U.S. 39 (1966). ee SEAT AE DRS RAS RO EE TAT OC Fe — A 30 tor of a forum has determined to grant access to some speakers or some picketers, he has implicitly made that basic judgment himself. When some public speaking is allowed in a park, the park’s administrator has deter- mined that the normal and proper functions of the park will not be excessively harmed by public speaking. If he then attempts to deny access to other public speakers he cannot be heard to claim the opposite. The burden is on him to show some very substantial factor distinguish- ing the disruption that would cause from that caused by the speaking or picketing already allowed. The same principle applies to broadcasters who have opened their forum to commercial speech but would close it to controversial political speech. By opening up a forum for some paid presentations, independently edited and controlled by members of the public, the broadcasters have waived any argument that advertising is inherently disruptive of the proper function of their stations. The exclusion of only one sort of advertising—which we have shown to have great First Amendment value—is then highly suspect, a prima facie constitutional violation. To justify the exclusion, there must be a substantial factor distinguishing the disruptive effect of.editorial advertis- ing from that of commercial advertising. The content of the idea which the excluded speakers seek to promote is—emphatically—not permitted as a distinguishing factor in itself. Indeed, the existence of an exclusionary discrimination apparently based on the content of ideas presents an additional, or greatly heigh- tened, prima facie constitutional violation. Both free speech and equal protection principles condemn any dis- crimination among speakers which is based on what they intend to say.‘ If the First Amendment prohibits any- # For discussions of the First Amendment-equal protection inter- section, see Blasi, Prior Restraints on Demonstrations, 68 MICH. L. REV. 1482, 1492-1497 (1970) ; Kalven, supra Note 40, 1965 Sup. CT. REv. at 29-80; Van Alstyne, Political Speakers at Universities: Some Constitutional Considerations, 111 U. PA. L. REv. 328, 337-339 (1963). wn A 31 thing at all, it must be a censorial discrimination among ideas. And since First Amendment rights have been held to be “fundamental rights” triggering the strict standard of review under equal protection principles, Williams v. Rhodes, 393 U.S. 23, 30-31 (1968), it is doubly clear that the burden of justifying any apparent discrimination is very great indeed. At least 20 years ago, the Supreme Court began con- demning discriminations among different exercises of the same type of expression. Fowler vy. Rhode Island, 354 U.S. 67 (1958); Niemotko v. Maryland, 340 U.S. 268, 272-273 (1951). Both cases involved access to a forum already opened to others. More recently, the Court in Cox v. Louisiana, 379 U.S. 536 (1965), invalidated a state regulation that permitted labor picketing but not civil rights picketing. In his concurrence, Mr. Justice Black stated that this sort of discrimination is “censor- ship in a most odious form” and violates both the First Amendment and the equal protection clause. Id. at 581. Similarly, in Adderley v. Florida, 385 U.S. 39 (1966), the Court upheld a ban on demonstrations in a jailyard, but was careful to note that “[t]here is not a shred of evi- dence in this record * * * [the demonstrators were ex- cluded] because the sheriff objected to what was being sung or said by the demonstrators or because he disagreed with the objectives of their protest.” Id. at 47. No doubt a discrimination against all controversial speech—such as we face in these cases—is somewhat less “odious” than a discrimination among different contro- versial viewpoints on particular issues. But it is a form of censorship just the same. It is a favoritism toward *SIn Wirta v. Alameda-Contra Costa Transit District, 64 Cal. Rptr 430, 434 P.2d 982, 986 (1967 ), the California Supreme Court came to the same conclusion as we do on this issue, saying: “* * * The vice is not that the district has preferred one point of view over another, but that it chooses between classes of ideas entitled to constitutional protection, sanctioning the a = ke Ps en on ac as me —s = s — ETERS PS Pe OS: A 32 the status quo and public apathy and, in these cases, a favoritism toward bland commercialism.“ Such favorit- ism flies in the face of the First Amendment, whose cen- tral purpose is to protect and promote controversy, “unin- hibited, robust and wide-open,” on public issues. Moreover, it is by no means clear that a broadcasters’ ban on “controversial” advertising does not impermis- sibly open the door to a sub rosa discrimination among controversial ideas. The term “controversial” is extraor- dinarily vague. Some advertisements may not be deemed “eontroversial’”—and may not even be “controversial” for purposes of the fairness doctrine ““—but may still express ideas, the negative of which would surely be labeled ‘‘con- troversial.” Ads for Radio Free Europe or Army re- expression of only those selected, and banning others. Thus the district’s regulation exercises a most pervasive form of censorship. ~ «### [T]he district’s policy * * * affords total freedom of the forum to mercantile messages while banning the vast ma- jority of opinions and beliefs extant which enjoy First Amend- ment protection because of their noncommercialism. No sta- tistical data is required to demonstrate that in the totality of man’s communicable knowledge, that which bears no relation- ship to material value preponderates.” The Supreme Court Of Washington specifically adopted this view in Hillside Community Church, Inc. v. City of Tacoma, Wash., 455 P.2d 350, 353 (1969). 46 Commissioner Johnson commented in his dissent that broad- casters “have created a system in which immediate access is granted to one, privileged class of applicants: the commercial peddler of goods and services. * * * We have an individual right of access, all right, but only for hucksters of industrial garbage.” Democratic National Committee, supra Note 1, 25-F.C.C.2d at 298. 4 See Banzhaf v. F.C.C., 182 U.S.App.D.C. 14, 405 F.2d 1082 (1968) ; Green v. F.C.C., —— U.S.App.D.c. ——, —— F2d —— (Nos. 24470 & 24516, decided June 18, 1971). In Wirta v. Alameda-Contra Costa Transit District, supra Note 45, 484 P.2d at 987, the California Supreme Court made the same point very forcefully, and provided several telling examples: [Footnote continued on Page A 33] A 33 cruiting, for example, may be allowed unanswered on the air, while ads calling the notion of the “free world” a sham or ads calling the Army a threat to democracy would be banned entirely. The line between ideological and nonideological presentations is an almost impossible one to draw. All too often in our society one particular ideology—that of passivity, acceptance of things as they are, and exhaltation of commercial values—is simply taken for granted, assumed to be a nonideology, and allowed to choke out all the rest, Thus the editorial advertising ban, particularly when licensees accept advertising generally, establishes an un- mistakable infringing of First Amendment liberties. The Commission and the broadcasters, then, bear a very heavy burden of justification. Whether we require a “compel- ling” justification, an “overriding” justification, or a “clear and present danger’”’ is relatively unimportant. VI It being established that there is a strong and specific First Amendment interest in editorial advertising and that the policies discriminatorily barring such expression work a prima facie violation of constitutional principles, we must consider the countervailing considerations raised by the Commission and the broadcaster-intervenors. In order to justify the policy at issue, they must show some very substantial harm that would be caused by acceptance ** [Continued] “* * * A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural re- sources. An oil refinery may advertise its products, but a citizens’ organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens’ club cannot plead for legislation to improve our social security program.” “See generally C. WAXMAN (ed.), THE END oF IDEOLOGY DEBATE (1969). . eA aR CRIME Peay e fin Pan ee NN ne De Beene EGS RS, oR RG Se A et - AY ee ae sa A 34 of editorial advertising—a sort of harm great enough to override the First Amendment interests at stake and a sort of harm not already involved in the acceptance of commercial and “noncontroversial” advertising. Only such a showing could convince us that the ban on edi- torial advertisements is supported by sufficient counter- vailing values and is not based solely on the content of the ideas conveyed. The Commission and intervenors have begun from the assumption that our holding for petitioners would deprive broadcast licensees of their highly prized editorial inde- pendence and control over their frequencies, giving edi- torial advertisers a right to air time which commercial advertisers do not presently have. They have argued that petitioners seek the right to “grab the mike” from broad- casters’ hands.” The result, they say, would be a three- fold disaster. First, they foresee “ ‘a return to the chaotic situation of radio’s early days’” “ when too many hands grabbing for too few mikes made successful broadcasting impossible. Second, they argue that compulsory accept- ance of editorial advertising would allow a few rich indi- viduals or groups to buy up great blocks of time to pur- vey views on only one side of important issues, thus gross- ly unbalancing the broadcast station’s treatment of those issues. And third, they point out that broadcasters com- pelled to accept editorial advertisements on one side of an issue would then be required by the fairness doctrine to accept at least some advertisements on the other side —free of charge if necessary. Provision of such free ad- vertising time, they say, would cut into the broadcasters’ revenues and might bring financial collapse. The arguments of the Commission and intervenors fall well short of the mark. The reason is that they have 50 Statement of attorney for intervenor Columbia Broadcasting System at oral argument before this court. 51 Brief for the Commission in Case No. 24,537 at p. 12. A 35 apparently misunderstood the narrowness of the issue here. All that we are considering is the permissibility of a total, flat ban on editorial advertising. All petition- ers ask is that broadcasters be required to accept some editorial advertising. They do not advocate an absolute right to air their advertisements. As the Red Lion Court made clear, there could not be any such absolute right because advertising time, like all broadcast time, is sev- erely limited. See text at page [A-21] supra. Under the Communications Act, broadcasters are not “common car- riers” obliged to accept any advertising message that is submitted. And petitioners do not argue that they should be. What petitioners do argue is that editorial advertise- ments should at least be considered and that some should be aired. Such a modest reform would not substantially under- mine broadcasters’ editorial control over their frequen- cies. For broadcasters would retain full latitude to con- trol the content of their programming. Their editorial control over non-advertising time would not be disturbed whatever. All that would be affected is thelr allocation of advertising time—an area in which editorial control over content has never been of major importance. The interest in deciding which advertisements to accept is not as great as in deciding what public issues to cover and how to cover them on news presentations, for example. See text at page(s] [A-18- A-19], supra. It surely cannot be 47 U.S.C. §153(h) (1964). The Commission and intervenors argue that this “common carrier” provision would be declared unconstitutional if we were to decide for petitioners in these cases. That, of course, is absolutely incorrect. The Commission and intervenors also point to a part of the Communications Act Providing that if a station permits one candidate for office to use its facilities, it must then permit others equal time, but providing also that “[n]o obligation is imposed upon any licensee to allow the use of its station by any such candidaté.” 47 U.S:C. §315(a) (1964). This statutory provision Squares perfectly with our hold- ing that a broadcaster iS not necessarily obliged to provide any time for advertisements, but that if he does sell some advertising time he may not totally exclude editorial advertising CEST RT SPS IPG ORL SOIL TEE EL TRS SPURS MOR NAIR A 36 equated, as the Commission and intervenors suggest, with the interest of law review editors in deciding what ar- ticles to publish. See Avins v. Rutgers, State University of New Jersey, 3 Cir., 385 F.2d 151 (1967), cert. denied, 390 U.S. 920 (1968). A broadcaster traditionally is not nearly as involved in the preparation and editing of ad- vertisements as a law review staff is in the preparation and editing of articles. Within the affected block of advertising time, neither chaos nor anything approaching chaos would follow the modest reform at issue. For, again, broadcasters would retain wide-ranging control. It is well established in First Amendment law governing access to forums that “reasonable regulations’ may be promulgated and en- forced to limit the exercise of free speech.** At the least, there may be regulations determining the time, place and manner of speech. They may not be used to stifle speech, but they are absolutely necessary to see that too many groups speaking at once do not drown out one another or trench overly much on the normal uses to which the forum is put by the public in general. The same principle applies to broadcasters’ methods for allocating advertising time. All that petitioners condemn here are regulations providing that public issue advertising may be aired “at no time, in no place and in no manner” over the broad- cast media. Clearly, for example, broadcasters are entitled to place an outside limit on the total amount of editorial adver- tising they will sell. To fail to impose some such limit would be to deny the public the other sorts of program- ming which it legitimately expects on radio and televi- sion. Similarly, “reasonable regulation” of the placement of advertisements is altogether proper. No advertiser has a right to air his presentation at any particular point 88 See, e.g., Amalgamated Food Employees Union Local 590 V. Logan Valley Plaza, Inc., 391 US. 308, 320 (1968); Note, supra Note 15. A 37 in an evening’s programming. Nor does he have a right to clog a particular time segment with his messages. A relegation of all editorial advertising to non-“prime time” or any other major discrimination in the placement of editorial advertisements would no doubt go too far. But there is still room for broad exercise of the broadcasters’ discretion. We need not define the precise control which broad- casters may exercise over editorial advertising. Rather, the point is that by requiring that some such advertising be accepted, we leave the Commission and licensees broad latitude to develop “reasonable regulations” which will avoid any possibility of chaos and confusion. The spectre of chaos and “mike grabbing” raised by the Commission and intervenors here is, as petitioners say, a “bogus is- sue.” . Broadcasters, after all, have dealt quite success- fully with the scheduling problems involved with com- mercial advertising. We require only that noncommercial] advertisers be treated in the Same evenhanded way. Al- though many broadcasters already do allow editorial ad- vertisements on the air, we have not been shown one rea- son, drawn from their experience, to suggest that chaos has resulted. Beyond the mistaken suggestion of administrative apocalypse, the Commission and intervenors have raised a more plausible and important claim, involving the dang- er that a few individuals or groups might come to domi- nate editorial advertising time. Of course, the mere fact that wealthy people may use their opportunities to speak more effectively than other people is not enough to justify eliminating those opportunities entirely. It takes more money to operate a magazine or newspaper—or, for that matter, a broadcast station—than to buy a segment of time for an editorial advertisement. Yet we are not re- luctant to provide strict First Amendment protection for the operators of magazines, newspapers and broadcast ‘ stations. The real problem, then, is not that editorial ad- A 38 vertising will cost money, but that it may be dominated by only one group from one part of the political spec- trum. A onesided flood of editorial advertisements could hardly be called the “robust, wide-open” debate which the people have a right to expect on radio and television. Again, however, invalidation of a flat ban on editorial advertising does not close the door to “reasonable regula- tions” designed to prevent domination by a few groups or a few viewpoints. Within a general regime of accepting some editorial advertisements, there is room for the. Com- mission and licensees to develop such guidelines.* For example, there could be some outside limits on the amount of advertising time that would be sold to one group or to representatives of one particular narrow viewpoint. The licensee should not begin to exercise the same “authorita- tive selection” in editorial advertising which he exercises in normal programming. See text at pages [A-22 - A-23] supra. However, we are confident of the Commission’s ability to set down guidelines which avoid that danger. We are no less confident of its ability to deal reason- ably with the final problem it has raised—that relating to licensees’ fairness obligations. Invalidation of a flat ban on editorial advertising, of course, leaves the Commis- sion the power to require that if editorial advertisements are accepted on one side of an issue, then broadcasters must also accept at least some advertisements on the oth- er side of the issue, free of charge if necessary. See Cull- man Broadcasting Co., 40 F.C.C. 576 (1963). The result of such a reasonable regulation, however, need not be fi- nancial disaster. Indeed, it is incredible that the Commis- 54 In the context of regulating demonstrations or picketing, guide- lines which limit access because the same or similar groups had already had substantial access would be unusual and perhaps im- permissible. However, the interest in maintaining some degree of balance on the broadcast media is particularly great. And “the characteristics of news media justify differences in the First Amendment standards applied to them.” Red Lion Broadcasting Co. v. F.C.C., supra Note 7, 395 U.S. at 386. A 39 sion would enforce a rule so rigid that licensees would be driven out of business.* If the obligation to provide some free time for answering editorial advertisements were shown to threaten actual financial harm to particular broadcasters, the Commission could make necessary ad- justments.* We conclude that none of the spectres raised by the Commission and intervenors—spectres of chaos, grossly unbalanced programming and - financial disaster—is enough to justify a flat ban on editorial advertising. What real problems there are may be dealt with while the ac- ceptance of some editorial advertisements is required. The keynote must be a scheme of reasonable regulation, ad- ministered by the licensee and guided by the Commission. . At least in the past, the Commission has not considered this task so impossible. Twenty-five years ago it decided a case in which a union charged that a broadcaster was violating free speech rights by refusing to sell program time for the airing of controversial views. The Commis- sion stated: “" * * The spirit of the Communications Act of 1934 requires radio to be an instrument of free speech, subject only to general statutory provisions imposing upon the licensee the responsibility of op- erating its station in the public interest. * * * “* * * No single or exact rule of thumb for pro- viding time, on a non-discriminatory basis, can be °° We note that the Commission’s requirement of free time for antismoking was administered generously toward the financial con- cerns of licensees and, indeed, few broadcasters seem to have been deterred from accepting cigarette commercials as a result. See National Broadcasting Co., Inc., 16 F.C.C.2d 947 (1969). 56 See Note, Fairness Doctrine: Television as a Marketplace of Ideas, 45 N.Y.U. L. REv. 1222, 1249 (1970). We must be somewhat skeptical of the talk about financial disaster. For, according to Commissioner Johnson, television broadcasters at least “average a 90 to 100 percent return on tangible investment annually.” N. JOHNSON, How To TALK BACK TO YOUR TELEVISION SET 65 (1969). (Emphasis in original.) SE IOI LE EE VO DOG ... iii Nt ee WD SANG D6 9. With respect to the first major argument, CBS argues that DNC has not alleged violation of the fairness doctrine but rather seeks to take presentations of contro- verial issues away from the control and supervision of the licensee. CBS states that if licensees were required to permit the purchase of air time for the presentation of views on controversial public issues, the nature of broadcasting would be radically altered to the detriment of fair, objective and balanced information available to the listening public.* CBS has followed a policy of re- fusing the sale of broadcast time for presentations of controversial issues in favor of providing “significant opportunities” for such discussions without charge to proponents of various viewpoints through news and in- formation broadcasts. To sell time for presentations on public issues, argues CBS, would result in the preemption of the limited broadcast frequencies by those with strong financial resources which would “necessarily distort the manner in which issues were presented” to the public. CBS asserts that under its present policies, it provides a “high proportion of direct presentations of views” by “the actors in the events of the day” and thus, aside from . fully informing the public of differing viewpoints on con- troversial issues, also provides an opportunity for those holding differing viewpoints to present their own views. These direct presentations, CBS notes, are part of its overall effort to inform the public fully and fairly and 3’ CBS asserts that it has served the public by presenting issues and viewpoints within a balanced program schedule utilizing news- worthiness as the sole criterion. CBS emphasizes the growth of public affairs and news presentations during the 1968-69 v. 1956-57 —e.g., total hours of news and public affairs broadcasting—1,354 v. 675; prime presentations—192 v. 34; regularly scheduled hard news 6:00 p.m.—11:00 p.m., 338 v. 180; and total hours ‘of news documentaries 100 v. 37. In addition, CBS also presents a compre- hensive exhibit to demonstrate the coverage given one of the major issues of the day by CBS and WCBS-TV—the Indochina War and domestic reaction to it. This Indochina exhibit includes a minute and second analysis of CBS’ total coverage of this issue and runs over 100 pages. D7 are not permitted to become an instrument of “partisan advocacy.” The First Amendment, CBS argues, is pri- marily concerned with the right of the public to be in- formed—as opposd to the right of the public to speak or to be heard. 10. CBS’ policy against sale of time for the presenta- tion of views on controversial issues does not apply to broadcasts on behalf of political candidates or ballot prop- ositions. This exclusion is based upon CBS’ belief that the intent of Section 315 is to facilitate the discussion of political issues by legally qualified candidates; such poli- tical broadcasts may include a direct appeal for funds so long as CBS is not involved in the collection or handling purchase of a special category of Spot announcement (up to one minute in length) for the purpose of political fund raising which need not be on behalf of political candi- dates or ballot propositions. 1l. With respect to the common carrier argument, CBS states that such a policy would be contrary to the public interest because partisan presentations would di- tertainment programs and would result in an “auction” to the highest bidder to determine what issues will be 12. The legal arguments which CBS advances—i.e., that DNC’s request is without constitutional or statutory ® ~~ RET ANTE PTL EE eR EAE CR . Re 7 » “ - v D8 basis, that Commission compulsion to carry DNC’s pro- grams is barred by the Communications Act, and that the action which DNC requests of the Commission is con- trary to the Commission’s own policy and precedent— are based primarily upon the assertion that no particular person or group has the right to speak over broadcast fa- cilities and that to assert such a right would ultimately require the Commission to assume the role of a censor or arbitor of specific programs, contrary to its long-estab- lished policy of avoiding such governmental involvement. CBS asserts that the McIntire case* stands for the propo- sition that “broadcasters, though licensed by the Commis- sion and subject to its valid regulations, are not publicly owned facilities, and there is no First Amendment right to purchase time on radio or television stations.” CBS further asserts that nothing in Red Lion® indicates that McIntire is no longer good law or that, apart from Sec- tion 315, there is any legal obligation for broadcast licen- sees to sell time. Rather, CBS says, Red Lion merely sus- tained long-standing Commission policies which are wholly inconsistent with DNC’s request. 13. To accede to DNC’s request, CBS argues, would violate Sections 3(h) and 326 of the Communications Act, which taken together establish that the licensee—not the Commission—is to exercise the power of program se- lection. The right of personal reply to material pre- viously selected for broadcast is limited to equal opportu- nity for political candidates, replies to personal attacks and replies to station political endorsements. CBS con- tends that the legislative history of the Communications Act supports its assertion that the statutory scheme en- visions a system in which the broadcaster is left with the initiative of assuring that programs presented are in the public interest. 4 McIntire v. Wm. Penn Broadcasting Co., 151 F.2d 597 (8rd Cir. 1945) cert. den. 827 U.S. 779 (1946). 5 Red Lion Broadcasting Co., Inc. v. F.C.C., 895 U.S. 867 (1969). D9 14. Finally, CBS asserts, DNC’s request is “funda- mentally inconsistent” with the concept of licensee re- sponsibilities and specifically, contrary to the Commis- sion’s prior holdings that “the Commission has no power to require a broadcaster to carry or refrain from carry- ing any particular program, or to prescribe the content of any program presented over the air.” Letter to Women’s Strike for Peace, November 22, 1965. Nothing in the Red Lion decision, supra, states CBS, indicates that the Court contemplated the abandonment of “traditional FCC fairness policies” and the adoption by the FCC of a common carrier theory as set forth in the DNC request. 15. NBC has no policy which would prevent the pur- chase of program time envisioned by DNC or the solici- tation of funds for the party during such a program. DNC states that it is not clear whether N BC would per- mit short spot announcements designed for the solicita- tion of funds for a party, but this simply points up the desirability of a concrete factual situation—namely, of DNC making a specific request, instead of the general, more vague approach which it has taken here. DISCUSSION Part I. The right of responsible entities to purchase time for comment on public issues 16. The DNC petition raises two Separate questions: (i) the asserted right of political parties to purchase broadcast time to solicit funds, and (ii) the asserted right of responsible entities to purchase time for comment on public issues. In this Part I, we deal with the second question. *To support this Proposition, CBS also cites McIntire v. Wm. Penn Broadcasting Co., supra; 1949 Editorilizing Report, 18 FCC 1246; 1960 Report and Statement of Policy in the En Bane Pro- gramming Inquiry, 25 Fed. Reg. 7291 (August 8, 1960) ; and letter to Judy Collins, March 24, 1970. 4 EAI LN RE STENT DENCE oman me a Kees: OPES a& i D 10 17. That question goes to the heart of the ‘system of broadcasting which has developed in this country—i.e., the licensing of private entities under the public interest standard. While the issues raised by the DNC petition are fundamental, they are not open. They have long been settled adversely to the DNC position, by the statute, by the Commission, and by the Courts. We shall discuss the present system and its statutory support, the relevant precedents, and the policy considerations. 18. The system which Congress has evolved has been described in full in the landmark decisions in this field— NBC v. U.S., 319 U.S. 190 (1948), and Red Lion Broad- casting Co. Inc. v. F.C.C., 395 U.S. 367 (1969). We shall not repeat that discussion here. It is sufficient to note that it is based upon the unique nature of radio—that “unlike other modes of expression, radio inherently is not available to all. Because it cannot be used by all, some who wish to use it must be denied.” (NBC v. U.S., supra, at 226.)7 To resolve the chaotic situation which had re- sulted, Congress decreed a system of licensing private entities for short terms, upon the condition that their operations serve the public interest. It is thus incumbent upon these public trustees to fashion schedules which do meet the needs and interests of the public. To do so, the broadcaster must allocate programming among the sev- eral categories (e.g., entertainment, instruction, news, public affairs) and, within those categories, must choose among the many competing requests for air time. See Report on Editorializing, 18 FCC 1246, 1247-48 (1949). However, there is one special obligation which the Com- mission has stressed—that broadcasters must “. . . de- vote a reasonable percentage of their broadcast time to ™ The Court recently reaffirmed this vital distinction in Red Lion (supra, at 388): “Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish.” D 11 the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station” (id. at p. 1249). Indeed, the Commission has stressed that it has allocated so much Spectrum space to broadcasting, short, as stated by the Court in Red Lion, supra, at p. 394, the licensee is “ . . given the privilege of using scarce radio frequencies as proxies for the entire commu- nity, obligated to give suitable time and attention to mat- ters of great public concern,” 19. The Commission has consistently made clear that with some exceptions not here pertinent; the licensee has discretion in discharging that obligation. Thus, in its basic Editorializing Report, the Commission stated: party has already received a sufficient amount of broadcast time, or whether there may not be other ay D 12 available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request .... This same policy is set out in the Commission’s 1964 Fairness Primer, 29 Fed. Reg. 10415, 10416; cf. also 1960 Programming Statement, 25 Fed. Reg. 7291 (1960). In line with these general precepts, we have consistently held, in case after case, that with certain exceptions not here involved, no individual has a right to express his particular views by means of a broadcast facility.® 20. While the licensee thus has considerable discretion in discharging “the twofold duty” stated in Red Lion, supra, at 377—to devote a reasonable amount of time to public issues and to do so fairly—that discretion must be exercised consistent with the public interest standard. The most basic consideration in this respect is that the licensee cannot rule off the air coverage of important is- sues or views because of his private ends or beliefs. As a public trustee, he must present representative commu- nity views and voices on controversial issues which are of importance to his listeners (Red Lion, supra, at 389, 390, 394). This means also that some of the voices must be partisan. A licensee policy of excluding partisan voices and always itself presenting views in a bland, inoffensive manner would run counter to the “profound national commitment that debate on public issues should be unin- hibited, robust, and wide-open.” New York Lines Co. v. Sullivan, 376 U.S. 254, 270 (1964); see also Red Lion Broadcasting Co. Inc. v. F.C.C., 395 U.S. 367, 392 (n. 18) (1969); Storer Broadcasting Co., 11 FCC 2d 678 (1968) ; Anti-Defamation League of B’nai B’rith, 9 FCC 2d 190, 191 (1966), affirmed Anti-Defamation League v. 8 Dowie A. Crittenden, 18 FCC 2d 499 (1969); Mrs. Margaret Z. Scherbina, 21 FCC 2d 141 (1969); Democratic State Central Committee of California, 19 FCC 2d 833 (1968) ; Boalt Hall Student Association, 20 FCC 2d 612 (1969); Mrs. Madalyn Murray, 40 FCC 647 (1965). D 13 F. C. C., 403 F. 2d 169, 170 (1968) (C.A.D.C.), cert. den. 394 U.S 930 (1969). In sum, as stressed in the Editorializing Report, supra, at p. 1249: It is this right of the public to be informed, rather than any right on the part of the government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the Ameri- can system of broadcasting. See Red Lion Broadcasting Co. Inc. v. F.C.C., supra, at p. 390: It is the right of the public to receive suitable ac- cess to social, political, esthetic, moral and other ideas and experiences which is crucial here. 21. With this as background, we turn to the DNC pe- tition. That petition seeks to overrule the above policy and to require licensees to sell time to any responsible entity to comment on a public issue. Using the CBS re- sponse as an example, we note that it would require a holding that CBS’ policy in this area is inconsistent with the public interest, because although it recognizes its ob- ligation to devote a reasonable amount of time to contro- versial issues of public importance (and has submitted a showing of its increasing efforts in this respect, includ- ing during prime time hours), and to do so fairly by pro- viding “. . . significant opportunities for such [broadcast] discussion without charge to partisans of various view- points in [its] news and information broadcasts” (p. 3, CBS Response), CBS will not sell time for the expression of viewpoints on public issues (with the exception of political broadcasts). It is important to bear in mind that DNC has not alleged that CBS or any other licensee has failed to discharge the above-noted obligations of the fairness doctrine. Thus, what is involved in the DNC request is a question whether there is a right of access to broadcast facilities by “responsible entities” over and ~