# Petition for Writ of Certiorari — 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%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 412 U.S. 94 ## Text - Opinions below = Jurisdiction. --------------------------------- & Question presented -_-_-_-_--.--..---------------- - Constitutional and statutory provisions involved _- © Statement._______-_____-______-__--_--- eee © Reasons for granting the writ & Conclusion.-_-_-------.------------------------ e Appendix A.........-_.--.------------------- | Appendix B F Appendix C + Appendix D . Appendix E : CITATIONS - Cases: American Lines v. L. & N. R. Co., 392 US. Cox v. Louisiana, 379 U.S. 5386_______-_____- Federal Power Commission v. Idaho Power Co., Fowler v. Rhode Island, 345 U.S. 67_______-_- David Green v. Federal Communications Com- 4 mission, 447 F. 2d 323__._______________- L? ~—- Hillside Community Church Inc. v. City of 3 Tacoma, 455 P. 2d 350 Kissinger v. New York City Transit Authority, 274 F. Supp. 4388_____-------------_--_- Lee v. Board of Regents of State Colleges, 306 F. Supp. 1097, affirmed, 441 F. 2d 1257____ Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F. 2d 497 (1) 452-787—71——-1 13 14 m Cases—Continued McIntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597, certiorari denied, 327 US. page FR... cnincnavenadeseedeen tatiewins 14 New York Times Co. v. Sullivan, 376 US ORE cscs pon beeen naga eebaweapene 7 Niemotko v. Maryland, 340 U.S. 268-------- 17 Office of Communications of the U nited Church of Christ v. Federal Communications Com- . mission, 359 F. 2d 994... ---------------- 11 _ Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 _- 6, 9, 10, 11, 12 ~~ Regents of New Mexico v. Albuquerque Broad- casting Co., 158 F. 2d 900_--------------- 14 United States v. Saskatchewan Minerals, 385 SS 2 aa. een 16 Wirta v. Alameda-Contra Costa Transit District, 64 Cal. Reptr. 430, 434 P. 2d 982_-------- 14 Zucker v. Panitz. 299 F. Supp. 102_--------- 13-14 Administrative decisions: Cullman Broadcasting Co., Inc., 40 F.C.C. | e.g... can eeanebeweenereiy 7 Report on Editorializing by Broadcast Licensees, Tete o> ae a 11,14 Letter to Nicholas Zapple, 23 F.C.C. 2d 707--- 7 ‘ United Broadcasting Co., 10 F.C.C. 515_------ 14 Statutes: United States Constitution, Amendment I. -- 2, 5, 6, 7, 8, 9, 10, 11, 12, 18 Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. 151, et seq.: Matin, LEB | oon scnneensanedee= 3,6, 13,17 Section 315(a), ..----------- 3,6, 10, 11, 13,17 et TN utcnbuk cs ckubsepnasae 17 Section S08(a) =o 5c oc cccsxencwucee 7 Miscellaneous: ee ae ——— . III Notice of Inquiry in Dkt. No. WE non ceuctc.... > 19260, 30 F.C.C. TST QS ey a Gn the Supreme Gourt of the Bnited States OctoBER TERM, 1971 No. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, PETITIONERS Vv. BUusINEss Executives’ Move For VietNaM PEACE No. FeperRAL CoMMUNICATIONS CoMMISSION AND UNITED STATES OF AMERICA, PETITIONERS Vv. Democratic NaTIONAL COMMITTEE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT The Solicitor General, on behalf of the United States and the Federal Communications Commission, prays that a writ of certiorari issue to review the final judgment of the United States Court of Appeals for the District of Columbia Circuit entered in these cases on August 3, 1971. (1) 2 OPINIONS BELOW The opinion of the court of appeals (App. A, infra, pp. la-47a) is not yet officially reported. The opinions of the Federal Communications Commission are re- ported at 25 F.C.C. 2d 242 and 25 F.C.C. 2d 216 (Apps. B and C, infra, pp. 48a-90a and 91a-154a). JURISDICTION The judgment of the court of appeals was entered on August 3, 1971, and reissued on October 29, 1971 (App. D, infra, pp. 155a-156a). A timely petition for rehearing and suggestion for rehearing en banc, was denied by the court on October 4, 1971 (App. E, infra, pp. 157a-158a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, under the powers granted to it by the Federal Communications Act, and in light of the in- herent limitations on the broadcast spectrum, the Fed- eral Communications Commission, which under its “Fairness Doctrine’ requires broadcast licensees to originate programs involving controversial issues of public importance, must, because of the First Amend- ment, also require that the licensees sell time to individuals and groups for the advertising of their par- ticular views. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the Constitution provides in relevant part: Congress shall make no law * * * abridging the freedom of speech * * *. “ 3 Section 3(h) of the Communications Act of 1934, 48 Stat. 1064, et seq., as amended, 47 U.S.C. 153(h), pro- vides: “Common carrier’ or “carrier”? means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio trans- mission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broad- casting shall not, insofar as such person is so engaged, be deemed a common carrier. Section 315(a) of the Communications Act of 1934, 48 Stat. 1088, as amended, 73 Stat. 597, 47 U.S.C. 315(a), provides: If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall af- ford equal opportunities to all other such candi- dates for that office in the use of such broadeast- ing station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such eandi- date. Appearance by a legally qualified candi- date on any— (1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary (if the appearance of the candidate is inci- dental to the presentation of the subject or subjects covered by the news docu- mentary), or (4) on-the-spot coverage of bona fide news events (including but not limited to 4 ip. political conventions and activities inci- dental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be con- strued as relieving broadcasters, in connection with the presentation of newscasts, news inter- views, news documentaries, and on-the-spot cov- erage of news events, from the obligation im- posed upon them under this chapter to operate in the public interest and to afford reason- able opportunity for the discussion of con- flicting views on issues of public importance. STATEMENT These cases arise out of two orders of the Federal Communications Commission, concerning claims that radio and television broadcasters cannot refuse to sell any broadcast time for the discussion of controversial issues. In each instance the complainant sought time to present its own views, without regard to whether the station licensee had otherwise fulfilled its affirma- tive and continuing obligation under the Commission’s fairness doctrine to inform the public on questions of public importance by presenting representative and contrasting views. In Business Executives’ Move for Vietnam Peace (BEM), a national organization sought to purchase time for one-minute anti-Vietnam War announcements on radio station WTOP, Washington, D.C. The sta- tion declined to sell the time on the ground that it was against its policy to sell spot time for the discussion of controversial issues. It explained that such subjects “require a more in-depth analysis than can be provided in a 10, 20, 30 or 60 second announcement” (App. C, p. Oe ee ee, eS. r 5 92a). Moreover, it claimed before the Commission that it had carried, through a variety of spokesmen in dif- ferent formats, the views of both proponents and op- ponents of the war, including the views embodied in the proposed BEM announcements (App. C, pp. 94a- 95a). In Democratic National Committee (DNC), that or- ganization sought a declaratory ruling that “Tal broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as DN C, for the solicitation of funds and for comment on public issues” (App. B, p. 48a). DNC did not request relief against any particular station. The Commission ruled on the two matters in related opinions issued on the same day. With respect to WTOP’s claim that it had given substantial coverage to various opinions’on the war, the Commission noted that this had been challenged by “no more than a gen- eral allegation” to the contrary, and held that this was an insufficient basis upon which to require WTOP to undertake a burdensome demonstration of its compli- ance with the fairness doctrine (App. C, pp. 97a-99a). It rejected the two complainants’ common contention that, for constitutional and other reasons, time must be sold to groups seeking to air their particular views about controversial public issues. The Commission held that such a requirement would be inconsistent with its fairness doctrine and is not mandated by the First Amendment or by the system of private broadcasting established by Congress.’ It *In Business Executives’ Move for Vietnam Peace, the Com- mission relied primarily on its basic and more extensive analysis in Democratic National Committee (App. C, pp. 101a-102a). 6 pointed out that Congress expressly chose not to make a broadcaster a common carrier (47 U.S.C. 153(h)) and had instead approved (47 U.S.C. 315(a)) the Commission’s policy known as the fairness doctrine, under which licensees are regarded as trustees of the public interest charged with an affirmative respon- sibility of informing the public about representative community views on issues of great public importance (App. B, pp. 62a-65a). Emphasizing the Court’s en- dorsement of this doctrine in Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367, the Commission stated that this responsibility necessarily vests in each licensee a broad discretion to determine the issues to be discussed, the spokesmen that will speak, and the format to be used (App. B, pp. 58a-65a). The Commission concluded that the paramount First Amendment right of the public to be in- formed, recognized by the fairness doctrine and in Red Lion (395 U.S. at 390), is best served by con- tinued reliance on licensee discretion rather than by con- ferring wpon members of the public qualified rights of access t a communications medium which inherently is not available to all (App. B, pp. 64a-72a). In the Commission’s view, the alternative would pose difficult problems for licensees in maintaining a balanced fa- eility for the discussion of public issues, would give persons with substantial financial resources undue influence in the determination of the use of that facility, and would endanger the principle that free time must be provided, if necessary, to redress an P 7 imbalance in coverage ” (App. B, pp. 65a-67a). The Commission cautioned broadcast licensees, however, that a “policy of excluding partisan voices and always itself presenting views in a bland, inoffensive manner would run counter to the ‘profound national commit- ment that debate on public issues should be unin- hibited, robust, and wide-open,’”’ citing, inter alia, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (App. B, p. 61a).’ Upon petitions for review filed by BEM and DNC pursuant to Section 402(a) of the Communications Act, 47 U.S.C. 402(a), the court of appeals, with Judge McGowan dissenting, reversed. The court held that ‘a flat ban [by licensed broadcasters] on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid an- nouncements are accepted” (App. A, p. 3a). Although recognizing that the physical limitations of broadcast time necessarily restrict access to the airwaves, the court concluded that within these limitations there is nevertheless ‘a reasonably regulated, ‘abridgeable’ right to speak’”’ (App. A, p. 22a). This abridgeable interest, in the court’s view, derives from the publie’s right to receive ideas and information (App. A, p. 20a), the public’s “First Amendment interest in the *See Cullman Broadcasting Co., Inc., 40 F.C.C. 576. *The Commission also ruled that time should be made avail- able for sale to significant political parties to solicit funds, in view of the importance of viable parties and the fact that the Cullman principle, supra, n. 2, is not applicable to the political party areas (App. B, p- 72a-T5a). See Letter to Nicholas Zapple, 23 F.C.C. 2d 707. >... POLE EGE LON GLE POLI POEL LYE RCSL, SERIA A NE IN CR gene 9a ig ty SEO RS So mode or manner—as well as the content—of public debate aired on the broadcast media” (App. A, p. 21a), and “the interest of individuals and groups in effective self-expression’ (App. A, p. 22a). Since edi- torial advertising involves some initiation and control of the broadcast by the advertiser, it directly serves the First Amendment interest in wide-open debate and self-expression; by contrast, the court deemed exclu- sive control by licensees over the initiation and edit- ing of broadcasts on controversial issues to be ‘‘in- imical to the First Amendment” (App. A, p. 24a). For this reason, the Commission’s reliance on the duty of licensees to originate such broadcasts, subject to the fairness doctrine, was held to be constitutionally insufficient (App. A, p. 24a, n. 34). Moreover, the court held that if commercial advertising is sold at all, a total ban against editorial advertising by broadcasters violates the First Amendment because such a ban dis- criminates against controversial speech in favor of commercial speech (App. A, 29a-36a). The court found unpersuasive the fears of the Com- mission and the broadcasters that only those with the greatest wealth would be able to purchase time and thereby enjoy the ‘‘abridgeable” right of access; that licensees might lose control of their programming; and that the fairness doctrine’s requirement that con- trasting views to editorial advertising be presented free of charge (if necessary) might seriously impair the financial base of broadcasting. These arguments, the court stated, misconceived the narrowness of the issue: the permissibility-of a total ban by broad- 7 ocean casters on editorial advertising. The court ordered the Commission to develop reasonable guidelines gov- erning acceptance of editorial advertisements by broadcasters (App. A, pp. 36a-43a) and remanded the cases to the Commission for this purpose (App. A, p. 44a). Judge McGowan, dissenting, stated that the respon- sibilities of broadcast licensees to present contro- versial views on issues of public importance, subject to the fairness doctrine, satisfied the requirements of the First Amendment. He noted that “This is the sys- tem which Congress has, wisely or not, provided as the alternative to public ownership and operation of radio and television communications facilities, * * * It is hardly the path of wisdom to scrap it for a sys- tem in which money alone determines what issues are to be aired * * *” (App. A, 46a). He concluded that “within the context of a regulatory scheme which has made provision for the airing of controversial issues of public importance,” the First Amendment permits, but does not require, licensees to accept paid editorial advertising. (App. A, pp. 46a—47a.) REASONS FOR GRANTING THE WRIT Because the broadcast spectrum is limited, its use must be regulated to accommodate the interests of all, lest in the “cacaphony of competing voices” none will] be clearly heard. Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 376. No individual, therefore, and no group has “an unabridge- able First Amendment right to broadeast comparable —_—— IE PEON SE IGE TE SLOT IA TENE RAE, re ater me nar ease Se wenn cetipmin EOE hate 10 to the right of every individual to speak, write or pub- lish.’’ Id. at 388. “It is the right of the viewers and lis- teners * * * which is paramount.”’ Id. at 390. How this ob- jective is to be achieved involves choices among vari- ous means of accommodating the public’s interest in maintaining freedom of speech with the inherent phys- ical limitations on access to the airways. In the public interest standards of the Communications Act of 1934, and in the 1959 amendment to Section 315 of that Act, Congress charged the Federal Communications Com- mission with the primary responsibility to make these choices. The decision of the court of appeals in this case substantially encroaches upon that responsibility. It in effect transfers the making of the basic policy judgment from the Commission to the courts, and, in so doing, sets a new and significant course for broad- casting. The importance of this case thus lies not only in the immediate consequences of the court’s decision for radio and television broadcasting, but also in the impli- cations of that decision for the proper role of the Com- mission and the courts in the regulatory system Congress has legislated. Over the years, as radio and television have assumed greater importance in our society, the Commission’s responsibilities have concomitantly increased and a regulatory system has evolved. The Commission, with the subsequent approval of both Congress (47 U.S.C. 315(a)) and this Court (Red Lion, supra, at 386-401), has concluded that under the Communications Act broadcast licensees must conduct themselves as public 11 trustees.‘ They have the duty both to give adequate coverage to public issues and to assure that that cov- erage fairly and accurately reflects opposing views. See, ¢.g., Report on Editorializing by Broadcast Li- censees, 13 F'.C.C, 1246; Fairness Primer, 29 Fed. Reg. 10415; Network Programming Inquiry, 25 Fed, Reg. 7291; Primer on Ascertainment of Community Prob- lems by Broadcast Applicants, 36 Fed. Reg. 4092. These duties are grounded on the licensees’ statutory obligation “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance,’’ 47 U.S.C. 315(a). In this limited respect, the freedom of broadcast journalism is, because of the inherent physical limita- tions of the broadcast spectrum, subordinated to the public’s interest in hearing diverse views. See Red Lion, supra. Moreover, the Commission has made clear that “[a] licensee policy of excluding partisan voices and always itself presenting views in a bland, inoffen- sive manner would run counter to the ‘profound na- tional commitment that debate on public issues should be uninhibited, robust, and wide-open’”’ (App. B, p. 61a). The consequence of failure to meet this obli- gation is, as Judge McGowan recognized, loss of the right to broadcast (App. A, p. 46a). The court of appeals, however, held that the First Amendment demands more. In the court’s view, there is a limited First Amendment right of access. But *See also Office of Communications of the United Church of Christ vy. United States, 359 F. 2d 994 (C.A.D.C.). 12 the limited right is itself abridgeable ; not all members of the public can exercise it and, indeed, the court ruled that the plaintiffs in these cases are not neces- sarily entitled to present their views on the air (App. | A, p. 2a). Instead, the court ordered the Commission to adopt regulations that would govern the selling of time for editorial advertising in light of the court’s holding that licensees must make some time available for such advertising. The court thus recognized that in broadcasting the available time must be apportioned in some manner among those who want to present views of public importance. Given the common First Amendment objective of both the court and the Commission, the court’s holding is, in substance, simply a disagreement with the Com- mission about how best to make that apportionment. For the Commission’s concern has always been with ensuring the “right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences,’’ Red Lion, supra, 395 U.S. at 390 (em- phasis added). But this collective right of the public de- pends on what constitutes “suitable access” and that is a practical question, peculiarly suited to administra- tive determination, which Congress has left primarily with the Commission. Indeed, by basing its disagree- ‘ment with the Commission on constitutional grounds, the court has not only significantly restricted the ability of the Commission to regulate this important medium of communication in accordance with the agency’s informed views of how the public interest will best be served, but has in effect also held that Congress itself is without power to change the court’s result. : 13 Congress has chosen to promote broadcasting within the structure of the private enterprise system and, in light of the inherent limitations on access to broad- casting, has expressly declared in Section 3(h) of the Act that licensees are not common carriers (47 U.S.C. 153(h) ). Indeed, it has also declared that “no obligation is imposed upon any licensee to allow the use of its station by any [ political] candidate.” 47 U.S.C. 315(a). Within this statutory structure, careful decisions must be made in regulating the use of broadcast time. In Red Lion, the licensees argued that the Commission had gone too far in protecting the rights of listeners and had thereby violated the licensees’ First Amend- ment rights; in this case, groups wishing to express their views on the air claim the Commission has not gone far enough in securing their right to speak and the publie’s interest in hearing speech. Both cases required the Commission to render a determination in light not only of the regulatory system that Congress had legis- lated and that, over the years, the Commission had de- veloped, but also of the various interests that must be accommodated within the existing structure of broad- casting. Here the Commission again carefully articu- lated the practical and legal basis for its policy and con- cluded that the public’s interests in broadcasting are best served by vesting the licensees with broad discre- tion to discharge their important responsibility of presenting the public with diverse views (App. B, pp. dTa—72a, App. ©, pp. 100a—103a).° The Commission’s de- _ * Because of this duty, the cases involving access to a regu- lated forum relied upon by the court of appeals are inapposite. Lee v. Board of Regents of State Colleges, 306 F. Supp. 1097 (W.D. Wis.), affirmed, 441 F. 2d 1957 (C.A. 7): Zucker y. 452-787—7 1—_—__2 14 F cisions here constitute a reaffirmation of the approach it has evolved in the twenty years since television and radio came of age.° Panitz, 299 F. Supp. 102 (S.D.N.Y.); Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y.) ; Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash.); Wirta v. Alameda-Contra Costa Transit District, 64 Cal. Reptr. 430, 484 P. 2d 982 (Cal.). These are all cases in which those responsible for access to an advertising forum have no corresponding responsibility to assure balanced coverage of contending positions; nor are there special considerations, as here, which suggest that such an obligation should be im- posed. In those cases, the question was simply whether the ideas expressed in editorial advertising were to be given access to the forum at all. Under broadcasters’ public interest obliga- tions and the fairness doctrine, however, controversial questions of public importance must be given access to the broadcast forum, although in a format that is subject to licensee discre- tion. *The Commission's 1945 decision in United Broadcasting Co., 10 F.C.C. 515, relied on by the court of appeals (App. A, pp. 42a-43a), reflects the Commission’s view before it had fully articulated licensees’ duties under the fairness doctrine. Its basic report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, was not adopted until 1949; and its Fairness Primer, 29 Fed, Reg. 10415, was not published until 1964. Moreover, the statutory public interest standard has always been construed as requiring the licensee itself-to determine what programming is in the public interest, Regents.of New Mexico v. Albuquerque Broadcasting Co., 158 F. 2d 900, 905-906 (C.A. 10), and claims of a private right to have material broadcast have been consistently rejected by the courts. Mc/ntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597, 600-601 (C.A. 38), cer- tiorari denied, 327 U.S. 779; Massachusetts Universalist Con- vention v. Hildreth & Rogers Co., 183 F. 2d 497, 501 (C.A. 1). See also David Green v. Federal Communications Commission. 447 F. 2d 323 (C.A.D.C.), noting (éd. at 328) that “no in- dividual member of the public has the right of access to the air: the licensees may exercise their judgment as to what material is presented and by whom.” matin een ts eG SEN | 15 What further adjustment and changes are desirable or possible may be considered in the Commission’s pending general inquiry into the fairness doctrine.’ But even if the Commission should reach a result simi- lar to that ordered by the court of appeals, it will have done so only after careful and thorough consideration of the evidence and opinions elicited in this inquiry. The financial burdens on the licensees, whether and to what degree the licensee would be able to control the views and the manner in which they are expressed, the amount of time that should be allocated to con- troversial advertising, how disputes regarding refusal to sell time to a certain group would be resolved, on what basis a licensee could reject certain controversial advertising—all these factors and many more would have to be taken into account in determining not only what kind of regulations the Commission should adopt to implement a rule requiring that licensees accept public issue advertising, but also whether such a rule should be adopted at all. "y The need for engaging in this kind of far-reaching and thorough inquiry before making such a signficant regulatory decision is precisely why Congress decided to create an administrative agency to handle the task. In this gase, however, the court has, in Judge MeGowan’s words, attempted to “dictate the result in advance.”’ ® * Notice of Inquiry and Notice of Proposed Rule Making in Dkt. No. 18859, 23 F.C.C. 2d 27. 35 Fed. Reg. 7820: Notice of Inquiry in Dkt. No. 19260, 30 F.C.C. 2d 26, 36 Fed. Reg. 11825. *Indeed, the reasoning of the court of appeals’ opinion, which is based on the proposition that “the crucial controls” must be in the hands of the purchaser of time (App. .A, p. 23a), 16 This Court has frequently commented on the impropri- ety of efforts by a reviewing court to fore-ordained through ad hoc determination an agency’s orderly de- velopment of policy by commanding the adoption of the court’s own policy views. American Lines v. L. & N. R. Co., 392 U.S. 571, 591-598; United States v. Sas- katchewan Minerals, 385 U.S. 94; Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20. This allocation of functions between court and agency is not rendered inapplicable here by the court of appeals’ conclusion that a licensee’s acceptance of commercial advertising, without also accepting edi- torial advertising, is unconstitutional discrimination against “preferred’’ speech. Given the inevitable limi- tations on access to broadcasting, the question of dis- crimination is more meaningfully viewed in terms of how the licensee allocates air time between commer- cial uses and public issue speech, rather than in terms of the format he chooses. The licensees’ public interest duty under the fairness doctrine assures that broadcasters, which derive their basic revenues from seems to suggest that it would be impermissible to refuse to sell advertising time on the ground that a similar viewpoint has already been adequately presented (App. A, pp. 26a-27a), on the ground that the matter is unimportant (App. A, p. 24a), and perhaps even on the ground that, short of a finding of clear and present danger, the content is unsuitable for entry into the home (App. A, p. 30a). In light of the emphasis on licensee re- sponsibility for the content and overall fairness of its pro- gramming in the Commission’s regulatory tradition, the Com- mission’s task in attempting meaningfully to implement the de- cision below would thus be formidable at best (see Judge McGowan’s dissenting opinion at App. A, pp. 44a-47a). = commercial advertising, will also devote substantial air time to controversial issues of public importance. There is, therefore, no invidious discrimination against the broadcasting of what the court below called preferred speech.° The court of appeals’ decision will have far-reach- ing effects on the broadcast industry. Each refusal to sell time for editorial advertising will raise potential constitutional questions presumably to be resolved ini- tially by the Commission and ultimately by the courts. Under the Commission’s current approach complaints about a licensee’s performance in fairly presenting issues of public importance are resolved when raised and evaluation of the licensee’s overall performance is undertaken upon complaint at license renewal time. It would now be necessary for the Commission either to provide hasty guidelines or to face a deluge of complaints from innumerable parties denied the right to broadcast their particular editorial advertising during the limited broadeast time available. The First Amendment is not necessarily served by mak- ing a government agency the arbiter of who shall speak and who shall not. Cf. 47 U.S.C. 326. Yet that is the role the court of appeals now thrusts upon the Commission, even though it does not seem to be a role Congress intended for the Commission. See 47 U.S.C. 153(h) ; 47 U.S.C. 315(a) ; 47 U.S.C. 326. *For this reason, cases such as Cor vy. Louisiana. 379 U.S. 536; Fowler v. Rhode Island, 345 U.S. 67; and Niemotko v. Maryland, 340 U.S. 268, are inapplicable. EFAS Rsk OS Serer bey yt RT RAIS ee Cae gee mca oneerm neers cece vere oR? ? Sr tdets ooak, £ 18 CONCLUSION The issues are important, and well worthy of this Court’s consideration. The petition for a writ of cer- tiorari should be granted. Respectfully submitted. ERWIN N. GRISWOLD, Solicitor General. RicHarD W. McLaken, Assistant Attorney General. Howarp E. SHaPIRo, LEE A. Rav, Attorneys. Ricuarp E. Winey, General Counsel, Federal Communications Commission. JANUARY 1972. APPENDIX A United States Court of Appeals for the District of Columbia* Circuit No. 24492 BustnEss Executives’ Move ror VIETNAM PEACE, PETITIONER Vv. . HeperaL CoMMUNICATIONS COMMISSION AND UnitTEp States or AMERICA, RESPONDENTS _ Post-NEwsweEexk Stations, Capita AREA, INc., INTERVENOR No. 24537 Democratic NaTIONAL CoMMITTEE, PETITIONER Vv. FEDERAL COMMUNICATIONS COMMISSION AND UnitTep Staves or AMERICA, RESPONDENTS AMERICAN BROADCASTING ComPaniss, Inc. and CoLuMBIA BroaDcastin@ System, INC., INTERVENORS Petitions for Review of Orders of the Federal Communications Commission Decided August 3, 1971 Before Wright, McGowan and Rosinson, Circuit Judges Opinion filed by Wricut, Circuit J udge Dissenting opinion filed by McGowan, Circuit Judge WRIGHT, Circuit Judge: In these cases we are asked to decide whether a broadcast licensee may, as a gen- (1a) ie FI EOE EI SE TE NG PLT pa 2a eral policy, refuse to sell any of its advertising time to groups or individuals wishing to speak out on con- troversial public issues. The Federal Communications Commission concluded that such a policy is permis- sible. We reverse the Commission’s decision. And we remand for further proceedings. The principle at stake here is one of fundamental importance: 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 broad- cast 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 tele- vision 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 enlivening 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 pres- entations which advertise products or which deal with ‘‘noncontroversial”’ matters, and confining the discus- sion of controversial public issues to formats such as the news or documentaries which are tightly controlled and edited by the broadcaster. In the Commission’s view, an attack on the permissibility of this practice 1 Business Executives Move for Vietnam Peace. 25 F.C.C. 2d 242 (1970); Democratic National Committee, 25 F.C.C. 2d 216 (1970). PERLE AE ISTE IIE OEE IG Me AN FS oS ~ ee Sa “goes to the heart of the system of broadcasting which has developed in this country.’’* We disagree. The actual issue before us is relatively narrow and we decide it narrowly. We do not have to cut to the “theart”’ of our system of broadcasting ; we leave undis- turbed 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 an- nouncements are accepted. We do not hold, however, that the planned announcements of the petitioners—or, for that matter, of any other particular applicant for air time—must necessarily be accepted by broadcast licensees. Rather, we confine ourselves to invalidating the flat ban alone, leaving it up to the licensees and the Commission to develop and administer reasonable pro- cedures 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 communication. As a rule, they do not attract attention to their views by performing newsworthy acts, such as engaging in civil disobedience or organiz- ing mass demonstrations. 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 * Democratic National Committee, supra Note 1, 25 F.C.C. 2d at 221. 4a ¢ media for their purposes. Yet they contend that their self-expression on those media—and, therefore, the public’s access to their views—is significantly inhibited by broadeaster policies barring any and all paid edi- torial messages from the airwaves. The Business Executives Move for Vietnam Peace (BEM) is a national organization of over 2,700 busi- ness owners and executives, organized in opposition to the war. BEM apparently believes that it is in a posi- tion 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 recorded one-minute radio an- nouncements. The announcements urged ‘immediate withdrawal of Ameriéan forces from Vietnam and from other overseas military installations’’ and fea- tured statements by leading businessmen and retired 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 extraordinarily 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 announcements on WTOP, an all-news -radio station in the nation’s capital. Like most broadcasters, WTOP sells substantial 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 particular objection to the planned announcements. Rather, it relied solely upon an across-the-board policy barring all editorial advertisoments—“its long established policy of refus- ing to sell spot announcement time to individuals or groups to set forth views on controversial issues.” ® BEM then filed a complaint with the Federal Com- munications 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 com- plaint. 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 political system, it is of obvious importance that the public have access—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 diret self-expression on the broadcast media, among them the refusal 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 edi- torial advertisement. Rather, it cast the issue in a Somewhat different light by seeking a declaratory ruling from the Commission that “ [a] broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as DNC, for the solicita- tions of funds and for comment on public issues.” *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, supra Note 1, 25 F.C.C. 2d at 249. There is no indication, however, that WTOP’s “long established policy” of refusing to sell time for any controversial advertisement would have permitted it to sell BEM 5 minutes or 10 minutes for a more “in-depth” treatment of its antiwar views. For a discus- sion of the permissibility of a flat ban on “short” public issue advertisements, see text at pages 28-29 infra, 6a The Commission considered the two cases together and rejected the arguments of both BEM. and DNC on the same day. The isues involved did not overlap completely. For example, the Commission found a defect in the vagueness and generality of BEM’s fairness doctrine complaint,‘ and it resolved DNC’s contention.concerning fund solicitation by noting that all three télevision networks had agreed to accept such solicitatiéns and by stating that any broad- caster policy of ¢énfining solicitations to election peri- ods alone “‘would appear arbitrary.” * On the matters ‘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 allega- tions, and WTOP, on the other hand, offered a lengthy com- pilation of news and interview shows which aired the opinions of some antiwar groups and individuals. BEM has not pressed its fairness doctrine argument on appeal, but rather has relied solely upon the First Amendment right-of-access con- tention which it also made before the Commission. Therefore. we need not consider here the Commission’s holding that BEM failed to shoulder its full burden of going forward under the fairness doctrine. 5 All three television networks also commented on’ the sale of time for editorial advertising. CBS stated it would sell no time for such advertising, although an exception would be made for broadcasts on behalf of political candidates or ballot propositions. ABC said it would not sell time to most groups for public issue advertising since that would inspire a “flood” of requests, but it would “be prepared, consistent with its other obligations, to accept such orders for time from ‘major political parties as can be accommodated on a reasonable basis.” And NBC stated it “has no policy which would prevent the purchase of program time envisioned by DNC.” We are constrained to note here that any discrimination in the sale of editorial advertising time in favor of political parties alone or the “major” political parties—and totally excluding other more issue-oriented groups or “minor” political parties—would be highly suspect under the First Amendment. See text at pages 33-35 infra. a 7a central to these petitions for review, however, the Commission resolved both cases in the same fashion, and we, therefore, are also considering them as one. The Commission held that it is permissible for a broadcast licensee to follow a general policy of reject- ing all editorial advertisements. The essence of its reasoning in the two cases was as follows: First, it interpreted the fairness doctrine to allow rejection of paid controversial announcements. The doctrine, evolyed by the Commission and endorsed generally in the Communications Act, demands that all controver- sial issues of public importance be covered both fully and fairly by broadcasters. Yet the Commission held that it leaves the licensees broad leeway to exercise their professional judgment as to “‘the format for pre- sentation of controversial issues ‘and all others facets of such programming.’ ’’ Editorial advertising, the Commission said, is simply one of several possible for- mats for coverage of public issues. Under the permis- sive “reasonableness”’ standard of the fairness doctrine, acceptance of that particular format is by no means compulsory. Second, the Commission interpreted the First Amendment 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 con- tent to raise the spectre of the “chaos’’ and other prac- tical difficulties that, it said, would attend a right of access to the broadcast media. The Commission con- cluded that the fairness doctrine’s requirement of full and fair coverage—tolerant as it is of a flat ban on the editorial advertisement format of expression— on AiO OLED EP IEDES DE LEE PIII SA ERY RS IY Sey tid La ee — 8a provides as much protection of public debate as the First Amendment demands. . Before this court, both petitioners make substan- tially the same attack on the Commission’s decision. They do not ask for a ruling that all editorial adver- tisements submitted to broadcasters must be accepted. Nor do they seek to foreclose entirely the broad- casters’ exercise of reasonable discretion. What they “advocate is a limited right of access to radio and tele- vision for paid public issue announcements. They at- tack the Commission’s ruling that a total exclusion of such announcement is permissible. II Petitioners have left no stone unturned in their attack on the exclusion-of editorial advertising. They have invoked the Communieations ... ETRE ESOP PRI APRIL TEES REET ED eT ene a cate 63a — 23. The administrative and judicial precedents re- flect the statutory scheme. The Commission’s pro- nouncements are long established and consistent. See, e.g., Report on Edttorializing, 13 F.C.C. 1246, 1249 (1949); 1960 Programming Statement; Women’s Strike for Peace, November 22, 1965. The court cases are to the same effect, McIntire v. William Penn Broadcasting Co., 151 F.2d 597, 600-601 (C.A. 3), cert. den., 327 U.S. 779; Massachusetts Universalist Convention v. Hildreth and Rogis Co., 183 F.2d 497, 001 (C.A. 1). DNC argues that these cases are no longer relevant in light of the Court’s decision in Red Inon, and that that decision establishes the correct- ness of its position. We do not so read Red Lion. The Government’s brief pointed up the nature of the licensee’s responsibility under the Editorializing Re- port, supra, at pp. 14-17, 31-32, and the Court recognized the report “asthe principal summary of [the Commission’s] ratio decidendi in cases in this area” (p. 1251). The Court at the outset noted “the twofold duty” imposed by the Editorializing Report and the manner in which the obligations under the general fairness request differed from those under the personal attack corollary (pp. 371-379).° The Court’s decision is based, we believe, on this founda- tion. The thrust of that decision is not that the broad- 64a * Thus, the Court stated: “These personal attack and political editorializing obligations differ from the general fairness re- quirement that issues be presented, and presented with cover- age of competing views, in that the broadcaster does not have the option of presenting the attached party’s side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from preceding fairness doctrine.” Red Lion Broadcasting Co. Iv. v. F.C.C., 395 U.S. at 378. 65a east licensee is a common carrier, required to sell time to all comers on public issues, but rather that he is a public trustee—a proxy—who must present representative community views and voices on con- troversial issues. The Court’s decision thus stresses the right of the public to be informed—not the right of the broadcaster or any individual or group to speak over broadcast facilities. The private censor- ship by broadcasters which the Court rules out is that which would prevent the presentation of repre- sentative community views or voices. 24. There ‘are strong policy arguments in support of the Congressional scheme. We have noted that broadeasting is inherently not open to all (para- graph 18, supra). That is true equally with respect to the common carrier access approach urged by DNC. The result could well be a return to the chaotic situ- ation of radio’s early days. Since the broadcast medium is a limited one, the amount of time to be devoted to public affairs—as against the other needs and interests of listeners—is also limited. This balance between the categories could be drastically skewed by a requirement that the broadcaster must make avail- . able time slots for the discussion of a controversial issue. Further, the publie’s agenda for discussion of public issues would then be set substantively and increasingly by the affluent—by the person or group which ‘‘. . . has the financial resources and interest to purchase sustained access to the mass communications media...’ (Banzhaf v. F.C.C., 405 F.2d 1082 (C.A.D.C. 1968), cert. den., 396 U.S. 842). Since the amount of broadcast time for discussion of contro- versial issues is limited and since the licensee must afford reasonable opportunity for discussion of both sides, the purchase of substantial blocks of time for a campaign by, say, the oil industry to discuss the >... SERNA NRRL EMIT 66a issue of the oil depletion allowance would impose the birden to present reasonably the other viewpoint, and in turn would inevitably cut down on the amount o& time for discussion of other issues. But we believe tiat such allocations of limited time are to be made m the basis of the public interest—not that of any jrivate group, however powerful or affluent. Further, tie public trustee would lose control over the impor- tint aspect of the manner in which the public is to le informed. We recognize that in some instances short spot announcements may serve a useful purpose h this area (see infra, p. 17). But we have also jointed up the limitations as to many issues of this nanner of informing the public. See e.g., Hearings lefore the Senate Commerce Committee, H.R. 6543 1969), pp. 142-143; Voters Time Rept., p. 15. A leensee which reasonably made the judgment that an Esue was too complex to be discussed in a 30-second ommercial—that ‘‘Shawking” the issue like a soap did 1ot serve the public interest—would find that judg- nent frustrated by the DNC policy; it would be required to sell the spots and ordered to make time ivailable to opponents on a similar basis. See Cull- nan Broadcasting Co., 40 FCC 516 (1963); KING 3roadcasting Co., 10 FCC 2d 968, 970 (1967). 25. This last point—the application of Cullman— nerits further discussion. The Cullman principle was leveloped to deal with the situation where the broad- ‘aster has sold time to one side to present its views, 1as not presented or made plans to present the con- rasting viewpoints, and rejects programming which 1e deems suitable to present those viewpoints, unless he party offering such programming will pay for its »yresentation. We held that the licensee could not »yroperly insist upon payment in such circumstances. [he paramount public interest, we stressed, is the ses TE EEA” , 67a right of the public to be informed. The licensee has adjudged that an issue is of importance to its area by presenting the first viewpoint; that being so, the pub- lic’s right to hear the other side cannot turn on whether the licensee received money.” This approach perfectly fits the public trustee concept. It does not fit a common carrier approach. For under the latter system, the licensee has to sell the time, no matter the amount, and then finds himself having to afford free time to the proponents of the contrasting viewpoint, again no matter what the effect on his ability to serve the public interest. Further, under a common carrier approach, each side is usually relegated to purchase, with no ‘‘Cullman’”’ rights. We believe that Cullman is a correct and sound doctrine which ties in with the public trustee concept and best serves “the publie in- terest in the larger and more effective use of radio”’ (Section 303(g)). 26. In connection with the above discussion, we should note that there is of course no Commission policy thwarting sale of time to comment on public issues. Licensees are free to do so, with the caveat that the fairness doctrine, including the Cullman aspect, must be observed. The critical issue is whether the licensee, to discharge either of “the twofold duties’? noted at the outset—to devote a reasonable amount of time to issues of public importance and to do so fairly—must sell some time to comment on pub- lic issues. The foregoing discussion makes clear that the licensee need not do so. If, for example, CBS chooses not to sell time but rather to fulfill its obli- gation on a sustaining basis in the manner disclosed in paragraph 9, supra (e.g., to provide significant For the different application of Cullman to the political broadcast field, see Letter to Nicholas Zapple, FCC 70-598 (1970). 68a free opportunity for partisan presentations), that choice is within its discretion. What is crucial is that the licensee does meet its obligation ‘‘to operate in the public interest and afford reasonable opportunity for discussion of conflicting views on issues of public importance.” (Section 315(a).) 27. Finally, we point out that the Commission does recognize the importance of fostering “a multitude of voices” in the discussion of public issues. Thus, it sought to promote the growth of FM radio, UHF television, and noncommercial educational broadcast- ing, and is seeking to promote a new technology which can make a most significant contribution in this re- spect—cable television. Because of the potentially great number of channels, cable opens up the possi- bility of common carrier channels, public access chan- nels, ete. See Notices of Proposed Rule Making In Dockets Nos. 18397A and 18874, 23 F.C.C. 2d—_, released July 1, 1970. But the policy in the broadcast field is shaped by the inherent characteristics of that field. As we have shown, that policy is based on the right of the electorate to be informed, and is an issue- oriented “right of access,’ not the right of any indi- vidual to access. 98. At the risk of some repetition (see particularly pars. 24, 25), we believe it appropriate to take up the position set forth in the dissent of Commissioner Johnson." We cannot accept the position of the dis- sent that the course we are taking conflicts with the First Amendment. As we understand it, the dissent- ing opinion of Commissioner Johnson urges that the operation of a broadcast station is analogous to the 11 That dissent is addressed also to the Commission’s decision in the BEM case, F.C.C. 70 ——, issued this day. Our dis- cussion here is of course equally applicable to the BEM case, and we so stated in that opinion. 4 nies apt aee feo gee vada le Ace ce a ae a ; 69a administration of a public facility, such as a park or a municipal bus (whether publicly or privately owned), and that once the facility is appropriately opened for the expression of views on public issues or commercial advertisements, it is a denial of First Amendment rights to reject or censor a proffered an- nouncement constituting constitutionally protected speech by one willing to pay the customary rate, if there is ordinarily a charge. While we need not disagree with the premise that the Commission’s regu- lation of broadcast stations under the Communica- tions Act must meet First Amendment standards, we think that the dissent—because it ignores established First Amendment policy in this area—posits a non- existent individual right of access to broadcast facilities. 29. First of all, to the extent that the dissenting opinion urges a near-absolute right of any person who has the money to buy time, it would create a common carrier situation which Congress after due deliberation specifically rejected in Section 3(h) of the Communications Act, 47 U.S.C. § 153(h). Appar- ently recognizing this collision with the statute, the dissent states (page 25) that Congress and the Com- mission have permitted a form of private censorship which is inconsistent with the First Amendment. We must note in this connection that it is beyond the power of an administrative agency to declare its governing statute to be unconstitutional. Central Ne- braska Pub. P. & I. Dist. v. Federal Power Commis- sion, 160 F. 2d 782, 783 (C.A. 8, 1947). However, if that infirmity did not exist, we would have no consti- tutional qualms about our present decision. 30. In its assertion of the unconditional (except for suggested reasonable limitations on time, place and Se ee LOG BE IERIE OI AUER eS Tp Re pam 70a manner)” right to buy time, the dissenting opinion takes no account of the basic, constitutionally valid policy of the Communications Act that because radio is ‘inherently not available to all,” National Broad- casting Co. v. United States, 319 U.S. 190, 226, there is a public duty adhering to the acceptance of a licgyse to give adequate coverage to public issues which re- flects opposing viewpoints, if necessary at the broad- caster’s own expense. Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367. See also 47 U.S.C. § 315(a). As Red Lion makes clear, the licensee is a fiduciary with obligations to present views and voices which are representative of his com- munity. It is through this basic approach that the paramount right and interest of the public to be fully informed is protected. The operator of a public park or transit system has no such obligation; if the anal- ogy offered by the dissent were valid, a broadcaster would be free to present only one side of every public issue so long as he did not reject any one who chose to speak. There would be no obligation to present the other side, let alone the obligation imposed by Cull- man Broadcasting Co., 25 R.R. 895 (1963) to put on an opposing view without charge. It is clear, therefore, that the analogy to other types of facilities that carry speech to the public, or furnish a place for speech, is fatally faulty. 31. Furthermore, the dissent fails to be adequately specific in detailing the types of limitation which it would permit as inroads to the general principle of an absolute right of access. Presumably, the licensee would not have to turn over all of its time on a first come, first served basis, for this would mean that the issues discussed and the persons speaking would be 12The dissent also mentions quality standards, an exception which is hardly consistent with its argument. —— governed entirely by money. But even if the dissent would permit the licensee to specify amounts of time and issues, the suggested system would appear to be unsound. First of all, the individual right upon which the whole dissent is premised would largely disappear. No person would have the right to discuss an issue of his choosing, at the time of his choosing, and for a duration of his choosing. How could the licensee val- idly determine that a particular speaker could effec- tively make his argument in 10 minutes, 5 minutes or a 30-second spot? Yet such determinations would be required. We have said that a licensee may reasonably determine that a position on a complex issue should not be peddled like soap in a few seconds. The dissent would presumably upset that ruling—to what purpose ? Beyond these questions is the more important difficulty that depriving the licensee of the discretion to choose representative spokesmen on controversial public is- sues * would lead us to a first come, first served plat- form dominated by financial considerations—the very result the dissent seeks to avoid and something the Supreme Court has already stated to be undesirable in Red Lion. 32. In short, we think the present system of regard- ing licensees as trustees, McIntire vy. William Penn Broadcasting Co., 151 F. 2d 597 (C.A. 3, 1945), cert. den, 327 U.S. 779, with a duty to present constrast- ing viewpoints through representatives spokesmen, is constitutionally sound and of greater public benefit 7la *There could be a case where the licensee’s policy in this area would be arbitrary (e.g., where he covers the issue. and in announcements of a few seconds duration, and then refuses to let others discuss the issue on the basis). No such case is or has been before us. We have ruled on the assertions of DNC and BEM of general entitlement to time to discuss public is- sues. Our holding is in that context. —— 1 ORG LITE SLIM EVOL ILO LYS OLNSE LUTE LS! BIE ESE NESDIS os! BE TAIT ri ae 72a than the concept of an individual right of access, which as we have shown has great drawbacks in the broadcast field. Part II. The right of political parties to purchase broadcast time to solicit funds * 33. In view of the positions now taken by the three major networks (the only parties whose policies were singled out by DNC were CBS and ABC), no ex- tended discussion is called for in this Part. 34. NBC has stated that it has no policy against the sale of time to a major national political party, to be used for the solicitation of funds for the party, in- cluding during non-campaign periods. CBS initially rejected the DNC request since it occurred outside an election campaign, but has now revised its policy to permit the purchase during any period by a political party of spot announcements (not to exceed one min- ute in length) designed to solicit funds for the party. ABC set forth its policy that ‘‘absent special public interest considerations, ABC will not sell time for. comment on controversial issues or for solicitation of funds’’ (p. 3, ABC of June 10, 1970, to William B. Ray), but then stated: The continued strength and viability of our two party system are of vital importance, ABC has emphasized in recent Congressional hear- ings the importance of a wider base for political contributions—small sums from millions of Americans rather than large contributions from a few. * * * * * Because the strength and viability of the %* While the DNC petition is couched in terms of selling time to “responsible entities” to solicit funds, the petition before us is that of a political party and our discussion here is confined to purchase of time by such parties for solicitation of funds. ——— major political parties are vitally important, ABC would be prepared, consistent with its other obligations, to accept such orders for time from major political parties as can be accommodated on a reasonable basis. At the same time, we proposed to continue our gen- eral policy against the sale of time for con- troversial issue programs and announcements and solicitations for funds, absent special pub- lic interest considerations. ABC then invited the Commission to address itself to its proposed treatment of the case. 35. We concur in that treatment. We note that Con- gress has singled out the presentation of the political broadeast as a particularly important aspect of the licensee’s public interest obligation. See Section 315 (a), Farmer’s Union v. WDAY, 360 U.S. 525 (1958) (citing F.C.C. cases) ; F.C.C. Memorandum on Second Sentence of Section 315(a), Hearing before Subcom- mittee of Interstate and Foreign Commerce Commit- tee, 88th Cong., 1st Sess., on H.J. Res. 247, pp. 84-90. It also requires no discussion to establish that political parties are an integral part of our democratic process and that it serves the public interest to promote the widest possible support by citizens of the party of their choice. See Voters Time Rept., The Twentieth Century Fund (1969), pp. 45-47. 36. In a 1963 ruling, Letter to Lawrence M. C. Smith, 40 F.C.C. 549, we sought to encourage the presentation of free broadcast time for this purpose stating : First, we recognize that the announcements described by you constitute an effort to achieve the worthwhile and commendable goal of broad- ening the base of political contributions. The importance of this effort: was recently empha- sized when, on May 29, 1962, President Ken- nedy transmitted to the President of the 73a 74a Senate and the Speaker of the House of Repre- sentatives legislation designed to carry out five of the important recommendations contained in the “Report on the President’s Commission on Campaign Costs.” In his letter of transmittal, the President stated, among other things: “In these days when the public interest de- mands basie decision so essential to our security and survival, public policy should enable presi- dential candidates to free themselves of depend- ence on large contributions of those with special interest. Accordingly, it is essential to broaden the base of financial support for candidates and parties. To accomplish this, improvement of public understanding of campaign finance, coupled with a system of incentives for solici- tation and giving, is necessary.” Furthermoré, your proposal has an objec- tive, in common with the broad policy underly- ing the “fairness doctrine’’—the right of the public in a free society to be fully informed as to controversial issues of public importance, in- eluding those involving political parties and candidates: See paragraph 6 of enclosed Edi- torializing Report. Second, the question whether to present such announcements is one for the licensee, who is faced with many competing requests to allocate time for public service announcements. The Commission of course expresses no opinion as td how that time should be allocated. But the announcements in question should not be re- jected upon the sole ground that the licensee would have to be fair in their presentation. Lawrence M. C. Smith, 25 Pike and Fischer Radio Reg. 291, at 293 (1963). 37. Whether such time is afforded on a free basis is a matter for the judgment of the licensee. The issue here is-whether the licensee may adopt or follow arbitrary policies with respect to the sale of broad- Fa a i TNT NAL CLP RTE EGET AT ES Ne awe 75a. cast time to significant political parties for the solici- tation of funds. Thus, the prior CBS policy of ~ eonfining such sales of time to election periods would appear arbitrary, since the need for the widest pos- sible financial support for political parties is not con- fined to such periods; and indeed we note that CBS offered no reason for such a distinction. 38. In this connection, we note that affording time for such solicitations does not raise any offsetting considerations, because of the combined force of a number of factors: (i) This area can_be appropriately singled out, since Congress has singled it out for spe- cial attention by broadcast licensees ; (ii) This would appear particularly to be an area where the relatively short announcement, limited very largely to fund solications, is both effective and appropriate.”® (iii) There is no problem under Cullman. For, in this regard the principles set forth in Letter to Nicholas Zapple, FCC 70-598 (1970), would govern. CONCLUSION 39. In view of the foregoing, the request of the DNC and. ABC for a declaratory ruling IS GRANTED to the extent reflected in Part IT and in all other respects IS- DENIED. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WapPte, Secretary. ** Of course, the licensee may exercise judgment as to how to present these solicitations for funds, and can afford more ex- tensive programming time, if he so chooses. Indeed, we stress again the considerable discretion of the licensee, consistent with the obligations of the fairness doctrine, as to the various facets such as number, placement, length, ete. Cf. Lawrence M. C. Smith, 40 FCC 549. 452-787—-71——_7 mate 76a CoNcURRING STATEMENT OF COMMISSIONER KENNETH A. Cox TI eoneur. The essence of the holding as to sale of time for the discussion of controversial issues—as of the Red Lion and Cullman cases—is that a broad- caster must devote substantial time to the presenta- tion of news and public affairs programming dealing with the principal issues of his area. He can sell time for this purpose—subject to Cullman—but we will not require him to do so against his wishes. Or he can—and this is generally to be preferred—give time for both sides. I assume here that the networks have given, or will give, adequate time for discussion of the key partisan political issues of our time. If not, then we must hold them to that obligation. I therefore concur generally in this action, except for the matter contained in Paragraph 27. DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON [AN OPENING PARABLE] [Once upon a time there was a nation as great in ideals as industrialization. It had business every- where—and unsurpassed military might to protect it. And yet its greatest strength was its foundation. For this nation professed to be governed by the consent of its citizens. To insure the successful functioning of this unusual government, free education, libraries, and full information were provided in order that its 200 million governors, through wide-open debate, might govern wisely. As the years slipped by the people spent more and more time in their air eondi- tioned homes watching television, and less and less time listening to speakers in the public parks and reading handbills on the streets. And yet the great — issues, and the need for informed governors, con- tinued. And thus it was that the great debate about the great debate began. ] [Everyone had his own theory how to get the demo- cratic dialogue back to the people (who were all home watching their television sets). Some advocated let- ters, petitions, press conferences, and picketing, but they didn’t seem to be successful. Attention shifted to those who advocated bombing, burning, shooting and looting, because before and after the showing of — such activities it was usually possible to present a short message’ on television (however distorted) about the merits of the issue at hand. Then a third group came along. It said, “Let us simply go to the broad- easters peacefully, and ask them for the time to pre- sent our concerns—and even pay them.” They were jeered by the crowd, but not deterred. The broad- easters politely explained that there was no longer any room at their inn for the diseussion of publie issues—like war, and life, and polities—heeause the time all had to he used for programs and announce- ments necessary to the very difficult but essential task of manipulating consumers to buy useless and harm- ful products. And yet these patient and patriotic students, businessmen, and Senators stil] did not give up. They continued to preach the doctrine of “work- ing within the system.” “The government,” they said, “will treat us fairly. There is reason and justice in our land. Surely a democratic people need not be vio- lent to be heard.” And so it was that they came to the FCC. .. .] The Democratic National Committee (DNC) has asked the Commission for a declaratory ruling requir- ing broadcasters to supply. two types of “access”? to their radio and television facilities: first, the right to purchase, at current commercial rates, short ‘‘spot an- 77a a nouncements” to solicit funds for political purposes; second, the right to purchase longer segments of air- time for presentation of political programming on important national issues. The majority, so far as I can determine, has equivocated on the first request, and denied the second. I dissent. I We should start with a few fundamentals. The great concept of our Constitution, embodied in the First Amendment, was that our democratic govern- ment would endure only so long as its citizens and their elected representatives had the leisure to think, the right to speak, and the freedom to criticize their government. As Supreme Court Justices Holmes and Brandeis understood, ‘‘the best test of truth is the power of the thought to get itself accepted in the competition of the market,” and that in a government of free men, “the deliberative forces should prevail over the arbitrary.” See Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting) ; Whit- ney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring). The issues we grapple with today, therefore, pose a crucial question. How can we create a free and open “marketplace of ideas” over the radio and television medium in which citizens, and their elected repre- sentatives, can discuss the great issues that weigh upon our nation? The second fundamental is equally important. For speech to be free, there must be both a forum for communication—whether it be a public park, school, town hall meeting, soap box, leaflet, newspaper, maga- zine, or radio or television frequency—as well as pro- cedural rules to keep order, to make it possible for all (or most) to speak in turn, and be heard, in that forum. Perhaps the greatest legal distinction to be 78a aM ge a neers Vt Lhe es The Phelps complaint charged that WTOP’s violation of the fairness doctrine was manifiest by one-sided coverage of issues such as “liberal v. conservative” political philosophy, coverage of the Nixon administration, hostility toward the South, prob- lems of the District of Columbia including crime, race rela- tions, law and order and the station’s attitude toward mass demonstrations. 25 F.C.C. 2d 98a t gations such as those made here. The Commis- sion’s policy of encouraging robust, wide-open debate on issues of public importance would in practice be defeated if, on the basis of vague and general charges of unfairness, we should impose upon licensees the burden of proving the contrary by producing recordings or tran- scripts of all news programs, editorials, com- mentaries and discussion of public issues, many of which are treated over long periods of time. Accordingly, although the Commission intends also to employ other appropriate procedures to insure compliance by licensees with the fairness doctrine (e.g., in-depth spot checks at renewal time), it has long been our policy normally to require that fairness doctrine complaints (a) specify the particular broadcasts in which the controversial issue was presented, (b) state the position advocated in such broadcasts, and (c) set forth reasonable grounds for concluding that the licensee in his overall programming has not _ attempted to present opposing views on the — issue. See Applicability of Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10415 (1964). In short, where, as here, the complainant has made only a general allegation and the licensee has answered by affidavit that it has presented such viewpoints on - numerous occasions, pointing also to example cover- age of the Vietnam war, it is not unreasonable that the burden be placed on the complainant to come for- ward with some indication why a more detailed show- ing should be required—why it is he believes that the licensee has been unfair. Here the complainant has wholly failed to do so. We stress that we are not re- quiring complainants in this area to prove their case ahead of time. To place any undue burdens on such complainants would be inconsistent with the public interest since the Commission does depend for pur- ey i aa ATT WE Sy re ee cre Bye Hit Dip eee 5 99a poses of enforcement to a large extent on complaints in this area. However, the complainant must have some basis for his complaint that a licensee has been unfair and that basis can and should be set forth (eg., several days monitoring of news or public affairs programming, with the assertion that only one viewpoint is presented). For, just as an undue burden should not be placed upon complainants, so also it is inappropriate to place such a burden on the licensee. A complainant cannot simply say the word, ‘‘Viet- nam’’, ‘‘racial discrimination’’, ‘‘pollution’’, and re- quire a licensee to devote extensive man-hours to cull over his past programming to show fairness on gen- eral issues of this nature. This would be particularly burdensome to smaller stations, and would not be a policy promoting ‘‘robust, wide-open debate’’. Cf. The New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In sum, as a ‘public trustee, the licensee must shoulder certain burdens, including upon an appro- priate complaint the burden of showing that he has complied with the fairness doctrine, but based on our experience we find that the publie interest also re- quires some reasonable specificity in a complaint to trigger this detailed showing by the licensee. There is no such specificity in this case, just as there was none in the Phelps case. Before passing to the next particular of the com- plaint, we take cognizance of BEM’s contention that licensee’s policy of refusal to sell time for the broad- cast of spot announcements dealing with controversial issues violates the fairness doctrine and amounts to “picking and choosing among topics so as to give ex- posure only to those which it prefers.’’ It states that WTOP does broadcast: announcements ‘‘on such con- troversial subjects of public importance as religion, the environment, the national economy, armed forces 100a recruiting and smoking,” and that it presents brief editorials taking positions on controversial issues, WTOP replies that it does not believe that the public service announcements it carries involve controversial issues of public importance; that it does not broadcast cigarette advertising, and that it believes that the anti-smoking ‘announcements which it carries are in the interest of ptblic health and welfare, comparable to consumer reports\s to help protect the public from fraudulent or deceptive business practices.’’ It states that its editorials are two minutes in length and *‘pro- vide enough time for development of position,” whereas, it asserts, ‘The actual substantive portion of the BEM spots [ranges] from about 20 seconds to 35 seconds .. .”’. We find no reason to reverse our prior ruling in Women’s Strike for Peace that the WTOP policy in question does not per se violate the fairness doctrine or any other Commission policy.’ Citing Section 3(h) of the Communications Act of 1934, as amended,’ we pointed out in that ruling that a broadcasting station is not a common carrier under the Act and therefore is not required to open its doors to all persons secking to use the station’s facilities for whatever purpose. As we stated in our letter to Mrs. Madalyn Murray, supra, it is within the licensee’s judgment to determine the format for presentation of controversial issues ‘and all other facets of such programming.” The li- censee here has asserted, without rebuttal other than the unsupported assertions of complainant, that it has, presented contrasting views, including the viewpoints ®Letter to Washington Women’s Strike for Peace, Novem- ber 22, 1965. 7 Section 3(h) of the Act provides, in pertinent part, that “a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.” ' Me pige Fi ir “Fy PROT eT Ren ah Rs es 10la embodied in complainant’s announcements on the re- cited issues, and we find no reason to require that it present in addition the views of any particular group or in any particular format. We need not develop ‘this point further, in view of the extensive treatment given the legal and policy consideration in the DNC ruling, J art I, issued this day, FCC 70- . We vei here on those considerations. In the second part of its complaint, BEM asserts that WTOP has frustrated the public’s right to hear the views of GEM and thus has denied “the right of the publi¢ to receive suitable access to social, poli- tical, esthetic, moral, and other ideas and experi- ences... .’’—citing Ped Lion Broadcasting Co., Tue. v. Federal Communications Commission, 395 U.S. 367, 390 (1969). However, as we noted above, the licensee has furnished or tendered evidence that it has pro- vided suitable access to the public on the ideas which BEM wishes to express, and it is clear that in this passage the Supreme Court was stressing the essen- tial nature of the fairness doctrine, rather than the right of a particular spokesman to obtain access to the air, except in cases of personal attack and editorials endorsing or opposing political candidates. The Court stated : To condition the granting or renewal of li- censes on a willingness to present representa- tive community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgement of freedom of speech and freedom of press. Id. at 394 (emphasis added). And in distinguishing between the general fairness obligation and the special obligations imposed in the case of a personal attack or a candidate endorsement, the Court noted that, PPTL ALO MOMINEN ACETYL As ORME Gat OF CANE SAYA YT MRE CG A AF — A 102a These obligations differ from the general fairness requirement that issues be presented’ and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attacked party’s side himself or choosing a third party to pre- sent that side. Id. at 378. Inasmuch as WTOP appears to have presented “representative community views” on the issues here in question, we find that it has not acted contrary to the principles laid down in Red Lion. See discussion in DNC ruling, supra. Finally, BEM argues that the Commission would be ‘ violating the First Amendment rights of BEM’s spokesmen by sanctioning the licensee’s policy of re- fusing to sell BEM time. Complainant relies princi- pally upon the Red Lion decision. We do not believe that the Court’s decision supports complainant’s con- clusion. As noted above, the Communications Act spe- cifically provides that a broadcaster shall not be deemed a common earrier, and thus he may exercise his judgment as to the particular program matter he will present. The licensee is thus constantly called upon to make choices between types and formats of programming and the persons to participate therein. If the licensee were required to present any matter brought to him which was not obscene, ete., the re- sult would be not only chaotic but a wholly different broadcasting system which Congress has not chosen to adopt. DNC ruling, supra. Based on the foregoing, we cannot find that the li- censee of WTOP acted unreasonably or in bad faith with respect to the fairness doctrine, nor do we be- lieve that its conduct was inconsistent with the prin- ciples laid down by the Supreme Court in Red Lion or infringed the First Amendment rights of BEM’s 8 ; oe PORE EER LM LITLE EE Oe wider he EES aa ar 103a spokesmen. Accordingly, the complainant’s request for relief is denied. Commissioner Bartley concurring in the result; Commissioner Cox concurring and. issuing a state- ment ; Commissioner Johnson dissenting and issuing a statement. By DIREcTION OF THE COMMISSION, BEN F. Wap gz, Secretary. CONCURRING STATEMENT OF CoMMISSIONER KENNETH A. Cox I concur in this action because BEM has not made an adequate showing that its members’ views have not been reasonably reflected in matter broadcast by WTOP. It is implicit in this ruling, of course, that if the station had not devoted reasonable time to the issues involved in the Vietnam War—including the positions espoused by BEM— it could have been re- quired to do so. But that marks the extent of its ob- ligation to the public in this regard. To require more would pose serious problems for the continued health of our broadcast system and would clearly discour- age the full and effective practice of broadcast jour- nalism. The fact that BEM is willing, if need be, to pay for time to broadcast its views does not alter this. In the first place, if stations were required to earry all spots dealing with controversial issues for which time was ordered, this might occupy much of the time which can be devoted to nonprogram matter and could, in time, impair the effectiveness of the broadcast media for advertising purposes. Further- more, although BEM is willing to pay, our ruling in Letter to Cullman Broadcasting Co., Inc., FCC 63- 849, would subject any station carrying its messages to the risk that those holding contrary views might 104a claim free time for reply. I fully support the Cullman doctrine in those cases where broadcasters elect to accept sponsored controversial issue programming or paid spots, but think that to require them to accept such matter would unreasonably expose them to ero- sion of their advertising revenues. I have made it clear that I do not think broadcasters should escalate commercial time or seek to maximize their profits, but our system depends upon profitable commercial operation and I am not prepared to try to change that fundamental fact. I do not think our ruling should be understood as holding that it would have been contrary to the pub- lie interest for WTOP to carry BEM’s announce- ments, as other stations apparently did. While the brevity of the messages makes it impossible for them to develop ideas to any significant degree, I do not think we are in a position to rule that those who op- pose the war in Vietnam should be completely barred from using this technique for getting their viewpoints across to the public. But I think their right of access to time on a station which has already adequately treated the war issues and has already reflected a . particular claimant’s position must depend on that ) _ station’s willingness to accept such spots, with full understanding of its resulting obligations under the Fairness Doctrine, including the Cullman ruling. ; DissENtING OPINION OF COMMISSIONER NICHOLAS : JOHNSON 4 The peculiar evil of silencing the expression 3 of opinion is that it is robbing the human race; posterity as well as the existing generation; [and] those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of 105a exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error * * * —J. S. Mill, On Liberty, quoted in Buckley v. Meng, 230 N.Y.S. 2d 924, 932 (Sup. Ct. 1962). History will record, I believe, the fundamental mis- step taken today by the Commission in its slow progress toward securing truly free speech for all citizens over the broadcast media. Almost two hundred years ago, the architects of our country drafted a constitutional scheme of government based on the bedrock of one paramount principle: that a free so- ciety would endure only so long as its citizens had the freedom to think, to speak openly, and to criticize their government. This First Amendment freedom of speech and press was ‘“‘preferred’’ above all others, see Marsh v. Alabama, 326 U.S. 501, 506 (1946), Thomas v. Collins, 323 U.S. 516, 530 (1945), for all other liberties could be defended only so long as speech remained free. But should free speech van- ish, then the informed electorate necessary to preserve other freedoms would cease to exist. Yet freedom of speech does not exist as an abstrac- tion. The First Amendment protects not just the right to speak, but the right to reach an audienee—the right to communicate. Protection of the means used to disseminate ideas, therefore, as well as the avail- ability of forums used for discussion and debate, must receive as much attention as the more abstract right to speech itself: The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaning- ful method of its expression. To take the posi- tion that the right of free speech consists — 106a merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely. The right to speak freely must encompass inherently the right to communicate. The right to speak one’s views aloud, restricted by the ban that prevented anyone from listening, would frame a hollow right. Rather, freedom of speech en- tails communication; it contemplates effective communication. Wollam v. City of Palm Springs, 379 P. 2d 481, 486 (Cal. 1963) (emphasis supplied). The Supreme Court has often recognized this principle, holding that forums for the expression of views must remain free and open, and that the preser- vation of these forums for the communication of views between citizens is one of our most important goals. In Hague v. CIO, 307 U.S. 496 (1939), Mr. Justice Roberts made the statement that Kunz v. New York, 340 U.S. 290, 293 (1951), later elevated to precedent: Wherever the title of street and parks may rest, they have immemorially been held in trust for the use of the public, and time out of mind have been use@ for purposes of assembly, com- municating thoughts between citizens, and dis- cussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Hague v. CIO, supra at 515. The Supreme Court has recognized this right of access to a “‘public forum” of communication in.numerous other areas, including privately owned sidewalks, Marsh v. Alabama, 326 U.S. 501 (1946), modern shopping centers, Amalga- mated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), and public SRI ELIAI AE EI EE SLIT IOS I IED GOI EE I ITE LD Oe i OM | 107a schools, Tviker v.\Des Moines School ‘Dist., 393 US. 503 (1969). And the Court has also acknowledged the importance of the press, see New York Times Co. v. Sullivan, 376°U.S. 254 (1964); Associated Press v. United States, 326 U.S. 1, 20 (1945), and the elec- tronic media, see Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969), as forums or means for the communication of thought. | The question before this Commission, therefore, is the extent to which the First Amendment requires that the public forums of broadcasting be equated with the “streets and parks” of Hague v. CIO, and that the rights of citizens’ access to those forums be included among the basic “privileges, immunities, rights and liberties of citizens.’”” We must determine whether private corporate licensees of the FCC have any more right to exclude citizens from the use of their facilities, than ‘a privately owned “company town,” see Marsh v. Alabama, 326 U.S. 501 (1946), has a right to exclude citizens from its streets. The broadcast spectrum is public property belonging to the citizens of this country. It is entrusted for limited periods of time to the trusteeship of private entities, corporate broadcast licensees. I believe these corporate licensees must be treated, for purposes of speech freedoms, as privately owned “company towns.” | The issue, therefore, is not what policy the Commis- sion might wish to adopt concerning the ‘‘advertise- ments” before us, but what the Constitution requires the Commission to adopt. ‘In seeking to provide the broadcasting media with the diversity demanded by the first amendment, . . . the Commission must avoid the perils of . . . abdication which would allow those possessing the most economic power to dictate what may be heard... .’? National ‘Ass’n of Theatre Owners v. FCC, 420 F. 2d 194, 207 (D.C. Cir. 1969) 452-787—71—_-9 — 108a (emphasis supplied). I believe the Commission has failed in this task. | The facts here are simply stated. Complainant, Business Executives Move for Vietnam Peace (BEM) is a well-established national organization with more than 2,700 members from business com- munities across the country. BEM has sought, unsuc- cessfully, for over a year, to purchase airtime on WTOP-AM in Washington, D.C., at its standard commercial rates, to present ‘to residents of the na- tion’s capital (including nationally elected members of the government) one-minute ‘‘spot announcements”’ urging immediate withdrawal of American troops from Vietnam and otherwise opposing the current Administration’s war policy. WTOP-AM has denied BEM access to its broadcast facilities—which it freely offers to purveyors of mouthwash, underarm deodorant, and hand soap—on the ground that the station has a long-established policy of refusing to sell spot an- nouncement time ‘to individuals or groups with ‘‘con- troversial’’ views. WTOP-AM’s principal justification for this policy is the belief—apparently not shared by BEM—that ‘‘subjects of this type require a more in- depth analysis than can be provided in a 10, 20, 30, or 60 second announcement.’’ The Commission has thrown the weight of its precedents and support be- hind WTOP-AM’s decision to bar the views proffered by BEM. Citing Section 3(h) of the 1934 Communi- cations Act, the Commission argues that licensees are not ‘“common carriers’’ and therefore WTOP-AM is ‘‘not required to open its doors to all persons seek- ing to use the station’s facilities for whatever pur- poses.’’ The majority thus delegates to ‘‘the licensee’s judgment’’ the power to determine ‘‘the format for presentation of controversial issues ‘and all other facets of such programming.’ ’”’ Any other result, the Com- 109a mission contends, ‘‘would be not only chaotic but a wholly different broadcasting system which Congress has not chosen to adopt.’ ~ “The Commission’s decision, I believe, ignores a long ‘Ime of judicial precedent which guarantees to individ- uals a right of access to forums generally open to the public for expression of views. These cases, which I will discuss in detail below, establish the proposition that a private or public corporation, which exercises possession of, or contro] over, property which is open to the general public or to the communication of par- ticular views,’ cannot discriminate between the persons or views that seek acerss to its facility, barring some and admitting others. BEM’s request, therefore, places the following four issues before the Commis- sion: first, are BEM’s anti-war spot advertisements eonstitutionally protected ‘speech’? under the First Amendment; second, is the’ action of WTOP-AM, a ‘private corporation licensed and supervised by a pub- lie ageney in a fiduciary or trustee capacity for public property, sufficient ‘‘state action’’ to bring tfe First Amendment’s protections into operation; third, are BEM’s proposed spot announcements an ‘‘appro- priate’ exercise of speech activities in the publie forum of WTOP-AM’s frequency, given the char- acter, usual activity and purpose of the forum and the nature of competing uses; and fourth, is a limited right of ‘‘non-commercial paid access” to WTOP- AM’s frequency consistent with Section 3(h) of the Communications Act of 1934, which declares that broadcast licensees shall not be deemed ‘‘common earries.’’ I believe the Constitution compels an affirma- tive answer to all four questions. For the reasons Stated below and in my dissenting opinion in Demo- cratic National Committee, FCC 70-861, Aug. 5, 1970, I dissent to the majority’s treatment of these issues. 452-787—71—_—_10 a 110a I. ADVERTISEMENTS AS PROTECTED ‘‘SPEECH”’ The Supreme Court has drawn a distinction he- tween two types of speech: the first, political or social speech, is entitled to the fullest constitutional protec- tion. Indeed, Professor Harry Kalven believes the ‘central meaning of the first amendment’’ is to pre- serve the citizen’s right to criticize those who govern for him. Kalven, The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’ 1964 Sup. Ct. Rev. 191, 208-09; see Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245, 256. The second type of speech, ‘‘commercial’’ speech, however, has not been given much deference. ‘‘In the quarter century since Valentine v. Chrestensen [316 U.S. 52 (1942) ], the notion that commercial advertis- ing is not protected by the first amendment has been enshrined among the commonplaces of constitutional law.’’ Note, Developments in the Law: Deceptive Ad- vertising, 80 Harv. L. Rev. 1005, 1027 (1967) ; see, e.9., Ginzberg v. United States, 383 U.S. 463, 474 n. 17 (1966) ; Polak v. Public Util. Comm’n., 191 F. 2d 450, 456-57 (D.C. Cir. 1951) (dictum), reversed on other grounds, 343 U.S. 451 (1952) ; see also, Note, Freedom of Expression in a Commercial Context, 78 Harv. L. tev. 1191 (1965). In Valentine v. Chrestensen, supra, the Court upheld a municipal ban on the distribution of commercial pamphlets on city streets. The Court simply observed that ‘‘the Constitution imposes no * * * restraint on government as respects purely com- mercial adveitising.”’ Valentine v. Chrestensen, 316 U.S. at 54. : Although the distinction drawn is an elusive one, it divides, perhaps, speech which seeks to influence polit- ical and social decisions in the marketplace of ideas EAE GEE PLIES LEAL LET RY PRED PB at SHINE HELE BLE LL ATE ORE SL Me EY llla from speech which seeks to influence private economic decisions in the marketplace of guods and services. Compare Murdock v. Pennsylvania, 319 U.S. 105 (1943) (conviction for door-to-door solicitation of contributions for religious literature reversed), and Jamison v. Texas, 318 U.S. 413 (1943) (advertise- ment on back of religious handbill protected), with Breard vy. Alexandria, 341 U.S. 622 (1951) (convic- tion for door-to-door solicitation of magazine sub- scriptions upheld). And while this distinction has been severely criticized, see Cammarano vy. United States, 358 U.S. 498, 513-15 (1959) (dictum) (Douglas, J., eoncurring), and I think with reason, it may indicate that the dissemination of ‘‘false’’ politicial ideas can evoke discussion or controversy which may refute or highlight the falsity of the original statement. ‘‘False”’ eommereial assertions, hy contrast, may only breed additional false claims from competitors with no cor- responding improvements in the products sold. Note, 80 Harv. L. Rev. 1005, 1030 (1967). Viewed in this light, WTOP-AM and the Commission have rele- gated political and social speech to a peculiarly in- ferior role. By permitting broadcasters categorically to exclude political advertisements and accept only commercial announcements, the Commission has en- couraged exclusion of highly valued political speech to the benefit of paid commercial speech. With this in mind, it is clear ‘hat the paid anti-war advertisements proffered by BEM fall within the category of protected—indeed highly valued—political speech. The fact that BEM is willing to pay the “admission price’? for access to WTOP-AM’s facil- ities does not detract from the purpose of its message to encourage political decisions in the marketplace of ideas. The Supreme Court in New York Times Co. 112a | v. Sullivan, 376 U.S. 254 (1964), conclusively laid all doubts to rest on this point: The publication here was not a “commercial” advertisement in the sense in which the word was used in Chrestensen. It communicated in- formation, expressed opinion, recited gviev- ances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. * * * That * * * the advertisement [was paid for] is as immaterial * * * as is the fact that news- papers and books are sold. [citations] * * * Any other conclusion would discourage news- papers from carrying “editorial advertise- ments” of this type, and so might shut off an important outlet for the promulgation of tnfor- mation and ideas by persons who do not them- selves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. [citation] * * * The effect would be to shackle the First Amendment in its attempt to secure ‘“‘the widest possible dissemination of informa- tion from diverse and antagonistic sources.” [citation] * * * * * * The present advertisement, as an ex- pression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. New York Times Co. v. Sullivan, supra at 266, 271 (emphasis supplied). ‘‘[W]hen an advertisement is the medium for noncommercial expression, constitu- tional freedoms apply in spite of its commercial nature.” Note, Resolving the Free Speech-Free Press Dichotomy: Access to the Press Through Advertising, 22 U. Fla. L. Rev. 293, 309 (1969) (citing further authority at n. 131). Accord, Banzhaf v. FCC, 405 OE OR a ON ee EER ENGEL ED EIN OE IEE IPR TIES AT EN ROSE BREF OR REN MAD OTR OE At, 1l3a - F, 2d 1082, 1101-02 (D.C. Cir. 1968); Zucker v. Panitz, 299 F. Supp. 102, 104 (S.D.N.Y. 1969) ; Wirta vy. Alameda-Contra Costa Transit Dist., 434 P. 2d 982, 984-85 (Cal. 1967). I conclude, therefore, that BEM’s anti-war adver- tisements are ‘‘speech” deserving of First Amend- ment protection. Il. ‘‘STATE ACTION”’ The First Amendment provides that “Congress shall make no law * * * abridging the freedom of speech. * * *’’ Although the language of this amend- ment binds only the national. government, the Su- preme Court has extended its protection to actions by the states as well. Fiske v. Kansas, 274 U.S. 380, 387 (1927) ; Gitlow v. New York, 268 U.S. 652, 666 (1925). “Yet, while the Fourteenth Amendment affords protection from state action as well as that from the national government, it does not protect against wrongs done by private persons.”’ Chicago Joint Bd., Amal. Cloth. Whrs. y. Chicago Tribune Co., 307 F. Supp. 422, 425 (N.D. Ill. 1969). In order, therefore, to establish a violation of the First Amend- ment, there must be “state action’’—here by the federal government—which deprives a group or in- dividual of the speech freedoms guaranteed by the First Amendment. On its face, the refusal by WTOP-AM to accept BEM’s advertisements is “private action” by a pri- vate corporate licensee, and therefore not restrained by the Constitution. Yet the ‘‘state action” require- ment has been found in the actions of many non- governmental persons or corporations. In each case, the private action has been sufficiently ‘‘involved’’ with the state that the restraints of the Constitution have | —_ ; ll4a ; ; been found to apply. The question before us, there- fore, is whether WTOP-AM’s actions are involved 3 with the the federal government to such an extent that the Constitution sets limits to its action. To paraphrase Farmer v. Moses, 232 F. Supp. 154, 158 (S.D.N.Y. 1964) (grounds of World’s Fair equivalent in status to public property), the question is whether WTOP-AM’s actions “are so impregnated with and supported by state * * * action as to plaee thom within the ambit of the [First] Amendment * * * - even though [WTOP-AM] * * * possesses certain indicia and aspects of ‘private’ ownership and dominion.” I believe that WTOP-AM’s rejection of BEM’s ad- vertisements clearly constitute ‘‘state action’’ under a number of state action theories. ‘A. Public Property The broadcast frequencies are a valuable and scarce resource belonging to the public. Although broadeast licensees are given the temporary use of this public property for terminable three-year periods, owner- ship and ultimate control remain vested in the people of the United States. In Section 301 of the 1934 Com- munications Act, Congress evidenced its clear inten- tion that the broadcast spectrum should remain “ pub- lic property”: ‘sie PCP ats Sint ahg ha ba i LSS pchthandatd nN hi ah Haat AEP 6 AM ILO Fig BPO Fe ee Daits: Ba RA MPU ALS! Pau D sghera It is the purpose of this Act * * * to main- tain the control of the United States over all channels of interstate and foreign radio tran® mission; and to provide for the use of such channels but not the ownership thereof, hy per- sons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. [Emphasis supplied. ] 4 + 3 i’ llda The mere fact that the licensee’s actions are taken with respect to public property should suffice to meet the test of required ‘‘state action.’’ See Tucker vy. Texas, 326 U.S. 501 (1946) (actions by municipal officials over property of government-owned town comprised ‘‘state action’’). B. Private Lessee of Public Property It is equally clear that the requirement of “state action” cannot he evaded by the lease of publie prop- erty, by a public entity, to a private individual. Dis- crimination by private lessees with respect to public property, for purposes of the First Amendment, has unequivocally been deemed state action by the courts. E.g., Burton v. Wilmington Parking Authority, 365 US. 715 (1961) (state leased space in public building to privately owned restaurant); Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967) (city “leased” public advertising space on city buses to ‘‘private’’ advertising agency) ; Farmer v. Moses, 232 F. Supp. 154, 159 (S.D.N-Y. 1964) (‘when a city or state leases public property [such that] * * * services * * * are actually per- formed by a ‘private’ lessee, the latter stands in the shoes of the government”): Anderson v. Moses, 185 F. Supp. 727, 733 (S.D.N.Y. 1960) (‘‘private * * * ~ concessionaire [operated] on public * * * property for the convenience and comfort of the public’) ; Hill- side Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969) (action by private advertising agency, pursuant to “‘contract”’ with city, in removing advertisements from municipal buses comprised state action) ; Wirta v. Alameda-Contra Costa Transit Dist., 434 P. 2d 982 (Cal. 1967) (publicly owned advertising space on municipal buses ‘‘leased’’ to private advertis- ing company). In Marsh v. Alabama, 326 U.S. 501 116a (1946), a privately-owned “company town” was found to serve a “public function,” and that its exclusion of a person seeking to distribute religious literature comprised “‘action”’ sufficient to bind it by the require- ments of the First Amendment. If under certain circumstances the private owner of private property is bound by state action, then surely the private user of public property is no less bound. See, e.g., Tanner v. Lloyd Corp., 308 F. Supp. 128 (D. Ore. 1970) (pri- vately owned shopping center); Schwartz-Torrance Inv. Corp. v. Bakery & Con. Wkrs. U., 394 P. 2d 921 (Cal. 1964) (same). In sum, therefore, ‘‘a broadeaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. * * *” Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994, 1003 (D.C. Cir. 1966). Surely we could not assume that the fed- eral government has leased public property to private individuals, yet attempted to free them from the obligations of the Constitution. First Amendment obligations are certainly among those imposed upon all broadcast licensees. C. “Delegation” of State Power When the state ‘‘delegates” its authority over public property to the use and control of a private entity, then the exercise of that use is state action for pur- poses of the Constitution. [W]here a state delegates an aspect of the elective process to private groups, they become subject to the same restraints as the State. [Citation.] * * * That is to say, when private individuals or groups are endowed by the State with powers of functions governmental in na- Safe Tes Ahad stead ai ae in Tel a ine le ar a aaa aa aa ——— ture, they become agencies or instrumentalities of the State and subject to its constitutional limitations. Evans v. Newton, 382 U.S. 296, 299 (1966) (although a state ‘‘delegated” its authority over public park to to private trustees, discriminatory conduct of trustees comprised state action). WTOP-AM has exercised powers of control over its broadcast frequeney which are governmental in nature—that is, the exclusion of persons wishing to express their views through a pub- lic facility of communication. See. e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (discrimination by private restaurant Jessee using and occupying publicly owned land and building *‘*dedi- eated to ‘public uses’” was state action): Smith v. Allwright, 321 U.S. 649 (1944) (“state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party’s action the action of the state’’). Because, like any lessee, a broadeaster derives all his power through delegation from the federal govern- ment, private actions taken by the _ broadeaster- licensee-trustee with respect to his trust ‘‘res” are imbued with the attributes of state action. A licensee ean only exercise the power he has, and the power he has flows from the government. 117a D. Involvement of Regulatory Agency In Public Utilities Comm’n. v. Pollak, 343 U.S. 451 ° (1952), the Court addressed the question whether action hy a privately owned public bus company, regulated by the Public Utilities Commission, was to be treated for purposes of the Constitution as action by a governmental entity. In finding sufficient state action, the Court specifically relied upon the fact that the bus company “operate[d] its service under the 118a regulatory supervision of the Public Utilities Com- mission of the District of Columbia which is an ageney authorized by Congress.” Id. at 462. The Court cited as authority the following proposition from American Communications Assn. v. Douds, 339 U.S. 382, 401 (1950): “[W]hen authority derives in part from Government’s thumb on the seales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise hy Government itself.’” There is little doubt that both the Congress and this Com- mission are substantially involved in the operations of broadeast licensees. Again this involvement should provide the requisite state action. Indeed, the Com- mission itself has expressly acknowledged that dis- crimination by licensees may constitute improper state action: [A] substantial ease has been made that he- eause of the relationship of the vovernment of the United States to broadeast stations, the Commission has a constitutional duty to assure equal employment opportunity. * * * The con- tention is rested upon such decisions as Bur- ton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Nondiscrimination Employment Practices of Broad- cast Licensees, 18 F.C.C. 2d 240, 241 & n. 2 (1969). E. State Encouragement or Lack of Neutrality In Evans v. Newton, 382 U.S. 296 (1966), a state court permitted a municipality to transfer its control over a public park to private trustees who denied Negroes access to the facility. The Supreme Court barred the discrimination. In a concurring opinion, Justice White pointed out thet a provision of state law permitted private trust settlors to dedicate their property to the public for use as a park and limit the a—— use of that park “to the white race only.” Although this statute did not compel a settlor to discriminate, it certainly indicated that such an action would be velid. According to Justice White, this statute ‘‘de- part[ed] from a policy of strict neutrality in matters of private discrimination by enlisting the State’s as- sistance only in aid of racial discrimination and * * * involve[d] the State in the private choice. * * *” Td. a+ 306. By eneouracing discrimination, although not requiring it, the state sufficiently intertwined itself with private discriminations to constitute state action. See also Reitman v. Mulkey, 387 U.S. 369 (1967). There are close parallels with WTOP-AM’s censor- ship of BEM. Section 3(h) of the Communications Act provides that licensees shall not be deemed a “eommon earrier,’’ and the Commission, reversing prior precedent, see e.g., United Broadcasting Co. (WHKC), 10 F.C.C. 515 (1945), has interpreted tliis to give licensees the discretion to close their doors to persons seeking to use the station’s facilities. See Let- ter to Washington Women’s Strive for Peace, Noy. 22, 1965 (cited by the majority in the instant case). I believe that the Commission’s interpretations and enforcement of the Communications Act, together with its improperly intentioned reversal of, prior Commission doctrine, see Reitman v. Mulkey, supra, provides similar ‘‘enecouragement’’ for discrimination by private licensees of the sort involved here. Cf. Adickes v. S. H. Kress &: Co., 38.U.S.L.W. 4484, 4444 (Sup. Ct., June 2, 1970) (Brennan, J., concurring in part); Lombard v. Louisiana, 373 U.S. 267 (1963) (statements by Mavor and Superintendent of Police encouraging private discrimination found to be state action). This encouragement should suffice for state action. We need not address the question whether 119a may 120a Section 3(h) of the Act itself “encourages” licensee discrimination sufficient for state action. F. State Action Through Quasi-Judicial FCC Action In Shelley v. Kraemer, 334 U.S. 1 (1948), the Court announced that ‘‘action of state courts and judicial officers in their official capacities is to be regarded as action of the State. * * *” Id. at 14. Al- j though the Court also suggested that state action : might not be found where a State through its court : merely ‘‘abstained from action, leaving private in- dividuals free to impose such discrimination as they see fit.’ Shelley v. Kraemer, 334 U.S. at 19, this dis- tinction beween court ‘‘action” and “inaction’’ has apparently been weakened by later rulings. Thus, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). : the Court remarked, in finding the First Amendment ; to protect the New York Times against a civil suit : by a private party, that “[i]t matters not that the law has been applied in a civil action and that it is common law only. * * * The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exer- cised.” Id. at 265 (emphasis supplied). For a discus- sion of the state action implications of New York Times Co. v. Sullivan, see Van Alstyne, Mr. Justice Black, Constitutional Review, and the Talisman of , State Action, 1965 Duke L. Rev. 219, 227-30. 4 In a recent opinion, Edwards v. Habib, 397 F. 2d 687 (1968), Judge Wright, speaking for the Court, discussed in detail current interpretations of Shel- ley v. Kraemer. After a review of the precedents and other prevailing views, he summarized them thus: It has been suggested that there is state ac- tion, not only when an individual asserts a claim of right against a state, but also when aiken asdet MN R eal ny PLP GN EEE I CE RG TELE es FIP APO T LL OOEIETEG SO NE l2la he asserts a claim of right against the claims of right of other persons and the state resolves the conflict according to its poliey of what is reasonable under the circumstances, ie., ac- cording to its law. [Footnote «initted.] Once this “state action” is established, the question then becomes simply “whether the particular state action in the particular circumstances, de- termining legal relations between private per- sons, is constitutional when tested against the various federal constitutional restrictions on state action.’’ [Citing Horowitz, The Mislead- ing Search for “State Action’? Under the Four- teenth Amendment, 30 So. Cal. L. Rev. 208. 209 (1957) ]. * * * On this theory, if it would be unrea- sonable to prefer [a particular private per- son’s] * * * interests, it would also be uncon- stitutional. Edwards v. Habib, supra at 695. For commentators discussing this view, see Van Alstyne, Mr. Justice Black, Constitutional Review, and the Talisman of State Action, supra, at 241-45: Horowitz, Fourteenth Amendment Aspects of Racial Discrimination in “Private” Housing, 52 Calif. L. Rev. 1 (1964) ; Wil- liams, The Twilgtht of State Action, 41 Texas L. Rev. 347 (1963) ; Van Alstyne and Karst, State Action, 14 Stan. L. Rev. 3 (1961); Horowitz, The Misleading Search for “State Action” Under the Fourteenth Amendment, supra. Marsh v. Alabama, 326 U.S. 501, 509 ( 1946), appar- ently provides support for this view. There, the Court “balance[d] the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion’’ and stressed that the latter freedoms occupied “a preferred position.” See also Amalgamated Food Employees Union Local 590 Vv. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), and — 122a New York Times Co. v. Sullivan, 376 U.S. 254 (1964), in which state courts were used merely as forums for the resolution of essentially private disputes. In all these cases speech freedoms were involved, and in each case the Court “balanced” the rights to speech 3 under the First Amendment against the rights to the enjoyment of property under the Fifth Amendment. Rather than forcibly entering the premises con- trolled by WTOP-AM to broadcast their message through attempted ‘‘self-help,’’ BEM has come to this Commission to seek a legal adjudication of its rights. After an investigation of the factual allegations and due consideration of BEM’s legal arguinents, ef. P1i- lic Uttlittes Comm’n v. Pollak, 343 U.S. 451, 462 (1952), the Commission has effectively ‘‘ejected™ BEM from WTOP-AM’s facilities. Compare Amal qa- mated Food Employees Union Local 590 v. Logen Valley Plaza, Inc., 391 U.S. 308 (1968) (state trespass laws used to eject picketers from private property). By adjudicating the rights and liabilities of the parties to this matter, and therefore binding the parties to a certain course of action, this Commission has invoked the ‘‘full panoply of its power,’’ Shelley v. Kraemer, 334 U.S. at 19, to banish BEM to silence. This, I be- lieve, should provide sufficient state action to invoke the restraints of the Constitution. This is particularly so when the broadeast licensee is not a purely private entity at all, but is licensed by the federal government and performs a ‘‘publie function” similar to that per- formed by the government toward publie parks and streets. See Marsh v. Alabama, 326 U.S. 501, 507 (1946). G. State “‘Acquiescence”’ In all the cases discussed in the previous sections, the courts have sought to establish at least some ; j i i | | | 123a » formal connection between private and public action. But in a number of important cases, the immediate ‘‘action” necessary to invoke the First Amendment was not direct, affirmative involvement by the govern- ment in private conduct, but state “aequiescence”’ in a certain type of private actions. In all these cases, how- ever, the state lad either relinquished its power to private entities (through assignments of control. or leases), or simply abdicated its power role (by fail- ing to impose requirements, for example, on corporate entities under its licensing control). Accordingly, where the power exercised by the private individual is normally or even. potentially exercisable by the state, but where the state has relinquished or abdicated that power, then private actions pursuant to that power comprise state action—that is, the ‘tpermission”’ of private discrimination which the state has the power to prevent. In the First Amendment area, therefore, it seems that the refusal by the state to enforce free- dom of speech in forums under the potential control of the government may provide sufficient ‘‘state ac- tion”’ to restrict the speech abridgement activities of private individuals. In Marsh v. Alabama, 326 U.S. 501 (1946), for example, the Court found that a private company town’s discrimination involved state ‘vaction sufficient to invoke the Constitution: [Mere acquiescence by the State in the cor- poration’s use of its property * * * would still have been performance of a public function and discrimination would certainly have been i- legal. * * * And certainly the corporation ean no more deprive people of freedom of press and religion than it can discriminate against Com- merce. * * * [T]he circumstance that the prop- erty rights to the premises where the deprivation of liberty * * * took place, were held by others 124a than the public, is not sufficient to justify the’ State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties. * * * Td. at 507 & n. 4, 509 (emphasis supplied). Presum- ably because the corporation was licensed by the state, and because the corporation performed a ‘‘ pub- lic function”’ similar to that of any municipality, state abdication of authority comprised state action. To be sure, there was technical ‘‘state action’’ present in Marsh, in that the state was asked to enforce its tres- pass laws against an individual invading private property. But this element could not have been con- trolling. If, for example, the company had sent its corporate officers out to the town’s border to prevent Marsh from setting foot on corporation property, and if Marsh instead had asked for a court injunction to restrain the officers’ actions and permit his entry to the corporation’s land, the result could have been no different. Compare Tanner v. Lloyd Corp., 308 F. Supp. 128, 130 (D. Ore. 1970) (action to compel entry to shopping center). In Burton v. Wilmington Parking [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0152%3A04. Public record. Not legal advice.