Brief for Respondent — Columbia Broadcasting System, Inc. v. Democratic National Committee
Supreme Court brief1973
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Supreme Court of the Auif
OcToBER TERM, 1972
No. 71-863
CoLuMBIA BroapoastinG System, Ino., Petitioner,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL., Respondents.
No. 71-864
FEDERAL COMMUNICATIONS COMMISSION AND
UntTep States, Petitioners,
Vv
BUsmINESS EXECUTIVES’ MOVE FOR VIETNAM PEACE AND
Democratic NaTionaL ComMiTtTEE, Respondents.
No. 71-866
AMERIOAN Broapoastina Compantss, Ino., Petitioner,
v.
DEMOCRATIO NATIONAL COMMITTEE, ET AL., Respondents.
On Writs of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit
BRIEF FOR RESPONDENT DEMOCRATIC NATIONAL
COMMITTEE
JOsEPH A. CALIFANO, JR.
JOHN G. KEsTER
1000 Hill Buildin
Washington, D. C. 20006
Attorneys for Respondent
Democratic National Committee
Panes or Braon S. Apams Paorrova, Inc., Wassincrom, D. C.
=,
ma
Page
OPINION BELOW 2... cccsccecsccccccsccccccccsccses i
SUMIBDICTION: oicnyes sees ve e0deeeséneee ceeseeesaeness 2
CoNSTITUTIONAL AND STATUTORY Provisions INVOLVED... 2
QueeTIONS PRESENTED .......00-ccscssccoseecsceeces 2
GRATEMENT 20.0 ccc cc cece cece cece sacescceccccseces 3
SuMMARY OF ARGUMENT ........... ccc cece eee ee eens 12
BBBUMERY och cbc ce ee tees ese st ne eens eseouesses 17
I. An Arbitrary and Absolute Ban on Purchase by
a National Political Party of Radio and Tele-
vision Time Is Inconsistent With the Commuani-
cations Act of 1934 ........... ccc cece eee 17
A. An Arbitrary and Absolute Ban on Paid An-
nouncements of a Political Party Is Incon-
sistent With the Communications Act’s Re-
quirement That Broadcast Licensees Serve
the Public Interest, and With the Commis-
sion’s Long-Standing Interpretation of That
Requirement .............. ccc cece ee eee 18
B. The Communicaitons Act Forbids Interfer-
ence With the Right of Free Speech ........ 27
C. Congress Had No Intention, in Excluding
Broadcast Licensees From the Traditional
Category of Common Carriers for Hire, To
Exempt the System of Broadcasting Regula-
tion From Public Interest and Free Speech
Requirements .............. cece cc eeeeeee 31
II. The Commission’s Approval of an Arbitrary and
Absolute Ban on Purchase by a National Politi-
—y
Page
cal Party of Radio and Television Time To Dis-
cuss Public Issues Violates the First and Fifth
Amendments ............ 0... ccccceceeceeecen, 4
A. An Arbitrary and Absolute Ban on Use by a
_. Political Party of the Twentieth Century's
Most Effective Public Forum Cannot Stand
If Debate on Public Issues Is To Be ‘‘Unin.
hibited, Robust, and Wide-open.”’ .......... 35
1, The Public’s First Amendment Right To
Be Informed Includes the Right of Direct
Communication With the Proponents of
ROQCBS. acntcavdawneseeans voce eesesacces 38
2. The First Amendment Forbids an Arbi-
trary and Total Barring of Paid Political
Broadcasts From a Forum Which Belongs
to the Public, Is Dedicated Purely to Com-
munication, and Is Probably the Most Ef.
fective Medium for Influencing Public
Opinion ............ cece cece e cece 46
3, The Unique Characteristics of Publicly-
Licensed Broadcasting Imply Correspond-
ing Unique Obligations ................. 51
B, The First and Fifth Amendments Forbid a
Ban Which Discriminates Absolutely Against
Paid Annguncements on Political Subjects
and in Favor of Commercial Advertisements 55
C. The First Amendment Forbids a Ban Which,
in Barring Whatever a Licensee Labels
‘‘Controversial,’’ Is Both Unconstitutionally
Vague and Overbroad ...............0.0005 57
D. First Amendment Rights of Political Asso-
ciation As Well As of Speech Are Abridged
by a Policy Which Totally Bars a National
Political Party From Purchasing Time To
Discuss Public Issues ..................05. D
; E. Permitting Some Paid Discussions by Politi-
cal Parties Will Avoid Governmental Censor-
ship and Will Not Present Serious Adminis-
trative Problems .....................000.
li Index Continued
eee
Index Continued lil
Page
F. The Ruling of the Commission Is Subject To
First Amendment Standards .............. 68
1. The Commission’s Interpretation of Its
Constitutional Responsibilities Is Subject
To Judicial Review .................... 68
2. The Broadcast Spectrum Is Public Prop-
erty, Use of Which Has Been Delegated
Subject To Detailed Federal Regulation .. 71
3. The Government Intimately Regulates the
Operations of Broadcast Licensees and
Confers on Them Unique Privileges ..... 73
4. Constitutional Restrictions May Not Be
Avoided by a Governmental Grant of Au-
thority To Take Unconstitutional Action,
Particularly When the Grant Contradicts
Previous Governmental Policy .......... 76
- The First Amendment Does Not Permit
Absolute Barring or Censorship by Broad-
cast Licensees of Paid Discussions of Pub-
lic Issues ..... 00.0... 78
|
CONCLUSION... 0.0... eee ee eee eeeeeceeeece ee, 81
TABLE OF AUTHORITIES
JupicraL Decisions:
Abrams v. United States, 250 U.S. 616 (1919) ...... 14, 35
Adderley v. Florida, 385 U.S. 39 (1966)... 2.2, 49
Amalgamated Food Employees Union vy. Logan Valley
Plaza, Inc., 391 U.S. 308 (1968) 2.00.00... 49, 72
Ashwander v. TV A, 297 U.S. 288 (1936) ............. 17
Associated Press v. United States, 326 U.S. 1 (1945) .. 80
Baker v. Carr, 369 U.S. 186 (1962) ..... 2... 79
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) .... 70
Bolling v. Sharpe, 347 U.S. 497 (1954) ............... 55
Boynton v. Virginia, 364 U.S. 454 (1960) ............ 67
Alexandria, 341 U.S. 622 (1951) .... 56
0 (1917) ............ 76
in Index Continued
Page
Brown v. Louisiana, 383 U.S. 131 (1966) ............. 49
Burton v. Wilmington Parking Authority, 365 U.S. 715
COG) soci eae eee ceeeesseeecess 16, 74, 75, 77
Cwtl Rights Cases, 109 U.S. 3 (1883) ............... 68
Cox v. Louisiana, 379 U.S. 536 (1965) ............... 49, 55
Cox v. Louisiana, 379 U.S. 559 (1965) ................ 49
Davis v. Massachusetts, 167 U.S. 43 (1897) ........... 48
Dunn v. Blumstem, 405 U.S. 330 (1972) .............. 59
Evans v. Newton, 382 U.S. 296 (1966) ................ 76
Farmers Educational & Cooperative Union v. WDAY,
Enc., 360 U.S. 525 (1959) .......... cece eee 25, 26, 29
Farmer v. Moses, 232 F. Supp. 154 (S.D.N.Y. 1964) .. 72
FCC v. Pottsville Broadcasting Co., 309 U.S. 134
CHORD) nae noose cece e ences tens eee ees 28
FCC v. Sanders Bros. Radio Station, 309 U.S. 470
(4080) soe te eee ciesc ess cas eaten seueveasedsses 34
Flower v. United States, 407 U.S. 197 (1972) ........ 55, 58
Fowler v. Rhode Island, 354 U.S. 67 (1953) .......... 59
Garrison v. Louisiana, 379 U.S. 64 (1964) .......... 37, 62
Gibbons v. Ogden, 9 Wheat. 1 (1824) ................ 80
Grayned v. City of Rockford, 40 U.S.L. Werk 4881
(U.S. June 26, 1972) .................05. 14, 15, 48, 55
Green v. FCC, 447 F. 2d 323 (D.C. Cir. 1971) ........ 57, 65
Greene v. McElroy, 360 U.S. 474 (1959) .............. 17
Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 38
Hadnott v. Amos, 394 U.S. 358 (1968) .............. 59
Hague v. CIO, 307 U.S. 496 (1939) .................. 48
Henderson v. United States, 339 U.S. 816 (1950) ...... 70
Hillside Community Church, Inc. v. City of Tacoma, 455
P. 2d 350 (Wash. 1969) .................000000: 72
International Assn. of Machinists v. Street, 367 U.S.
TAO. (1961) 20... cece cece cc ccc cence cece cccees 17
Jamison v. Texas, 318 U.S. 413 (1943) .............. 48
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .. 53
Kent v. Dulles, 357 U.S. 116 (1958) .............0... 17
Kissinger v. New York City Transit Authority, 274
F. Supp. 438 (S.D.N.Y. 1967) .................. 72
Kunz v. New York, 340 U.S. 290 (1951) .............. 48
Lamont v. Postmaster General, 381 U.S. 301 (1965) .. 38
Lee v. Board of Regents, 306 F. Supp. 1097, 1101 (W.D.
Wis. 1969), aff’d, 441 F. 2d 1257 (7th Cir. 1971) .. 41
—
Index Continued Vv
| Page
Linn v. United Plant Guard Workers, 383 U.S. 53
(A008) ei ocsere ee ees ds es ees seedpasesseendsesens 30
Lloyd Corp. v. Tanner, 40 U.S.L. Weex 4829 (U.S.
June 22, 1972) ..................00.. 50, 51, 55, 72, 73
Lombard v. Louisiana, 373 U.S. 267 (1963) ..........
Lorain Journal Co. v. United States, 342 U.S. 143
RISOL) ents dap bd bee ens penas neve cdaeciessas 64
Lovell v. City of Griffin, 303 U.S. 444 (1958) 2402020 58
Marsh v. Alabama, 326 U.S. 501 (1946) ............ 49, 73
Martin v. Caty of Struthers, 319 U.S. 141 (1943) ... . 38, 56
Massachusetts Universalist Convention v. Hildreth &
AIFAO) eesse easens onuaeeen Codon edna sbeuceucns 69
Mills v. Alabama, 384 U.S. 214 (1966) ............... 36
Mitchell v. United States, 313 U.S. 80 (1941) ........ 26, 70
(1990) poe ee owen eek pene ewes aeevuwescodecuceex 59
NAACP v. Button, 371 U.S. 415 (1963) .............. 59
National Broadcasting Co. v. United States, 319 U.S.
190 (1943) 2... eee. 13, 52, 53, 63
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
9, 13, 31, 36, 37, 40, 56, 70, 71
Ntemotko v. Maryland, 340 U.S. 268 (1951) ........ 48, 55
Nixon v. Condon, 286 U.S. 73 (1932) ................ 6
O’Brien v. Brown, 40 U.S.L. Weex 4001 (U.S. July 7,
WOUG) enwats boeeeon esp uuceenssehansudewtaccon, 59
Office of Communication of United Church of Christ
v. FCC, 359 F. 2d 994 (D.C. Cir. 1966) .......... 67, 75
Office of Communication of United Church of Christ
v. FCC, 425 F. 2d 543 (D.C. Cir. LOO0) Kacenue een 48
Pennekamp v. Florida, 328 U.S. 331 (1946) 2.0... 2... 31
Pickering v. Board of Education, 391 U.S. 563 (1968) 36
WEEK 4877 (U.S.
SEERA MEM eho es the es cd eu eee ds 15, 55
Post v. Payton, 323 F. Supp. 799 (E.D.N.Y. 1971) .... 69
Public Utilities Comm’n v. Pollak, 343 US. 451 (1952)
16, 73, 74, 79
onan
vi Index Continued
Page
Railway Employes’ Dept. v. Hanson, 351 U.S. 225
CTOSG) casvseneesdaeespereteeeecsseesresseenes 76
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)
7, 8, 14-17, 25, 27, 31, 36, 38,
39, 44, 52, 53, 55, 63-67, 79-80
Reitman v. Mulkey, 387 U.S. 369 (1967 } Seeeesreeees 76, 78
Retail Store Employees Union, Local 880 v. FCC, 436
W, 3d 246 (D.C, Cit. 1910): o2 cs cdesccvne ctevscees 45
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) .. 48
Roth v. United States, 354 U.S. 476 (1901). 5244444440 60
Schneider v. Smith, 390 U.S. 17 (AOGB) occ< ends steno 17
Schneider v. State, 308 U.S. 147 (1939) ............56, 58
Shelley v. Kraemer, 334 U.S. 1 (1948) ............44. 71, 76
Shelton v. Tucker, 364 U.S. 479 (1960) .............. 59
Shuttlesworth v; City of Birmingham, 394 U.S. 147
(6) errr re err 48, 55, 57
Smith v. Allwright, 321 U.S. 649 (1944) ............ 16, 78
Smith v. California, 361 U.S. 147 (1959) ............. 70
Sorensen v. Wood, 123 Neb. 348, 243 N.W. 82 (1982),
appeal dismissed sub nom. KF AB Broadcasting
Co. v. Sorensen, 290 U.S. 559 (1933) ............ 29
Speiser v. Randall, 357 U.S. 513 (1958) ...........46. 70
Stanley v. Georgia, 394 U.S. 556 (1969) .............. 38
Staub v. City of Baxley, 355 U.S. 313 (1958) .......... 58
Steele v. Louisville €d N.R.R., 323 U.S. 192 (1944) .... 26
Stromberg v. California, 283 U.S. 359 (1931) ........ 60, 78
Sweezy v. New Hampshire, 354 U.S. 234 (1957) ...... 59
Terry v. Adams, 345 U.S. 461 (1953) .............. 16,7
Thornhill v, Alabama, 310 U.S. 88 (1940) ............ 36
Time, Inc. v. Hill, 385 U.S. 374 (1967) .............. 38
Times Film Corp. v. City of Chicago, 365 U.S. 43
COG) cay coe sve see secrded esses verreeeise ess 12, 35
Tinker v. Des Moines Independent Community School
Dist., 393 U.S. 503 (1969) ..... 0. cece eee cee eee 46
United States v. Associated Press, 52 F. Supp. 362
(S.D.N.Y. 1943), aff’d, 326 U.S. 1 (1945) ........
United States ex rel. Chapman v. FPC, 345 US. 153
6 LS 9 age errr ee 70
United States v. Midwest Video Corp., 406 U.S. 649
(TOT2) panna s ones ss savgeseeeeseunenns ces neues 27
United States v. Robel, 389 U.S. 358 (1967) .......... 59
PALI IEE EOL LINGERIE PL IOLS WO YIN L A IAL, SOS PTL, BOI =
—e
Index Continued Vii
Page
United States v. Southwestern Cable Co., 392 U.S. 157
CTOOG) iio e455 ob acta ee eedver ob ouesaciinwass 27
Valentine v. Chrestensen, 316 U.S. 52 (1942) ......... 56
Whitney v. California, 274 U.S. 357 (1927) .......... 36
Wirta v. Alameda-Contra Costa Transit Dist., 64 Cal.
Rep. 430, 434 P.2d 982 (1968) .............. 58, 72
Wolin v. Port of New York Authority, 392 F. 2d 83 (2d
Cir.), cert. denied, 393 U.S. 940 (1968) ..........
1820 (1946) 2... cece cece ccc ccecees 22, 24
Amendment of Sections 73.35, 73.240, and 73.636 of the
Commission’s Rules, 22 ¥.0.C, 2d 339 (1970) .... 46
F.C.C. 598 (1964) 2... ccc eee cee cecemeees 40
Business Executives’ Move for Vietnam Peace, 25
F.C.C. 2d 242 (1970) 2... cece cece cece cu cece 2,7
Center for Law and Social Policy, 23 P. & F. Rapto
Reo. 2d 187 (1971) 2.0... cece c cece cece 29
City of Jacksonville, 21 F.C.C. 334 (1956) ............ 24
Columbia Broadcasting System, Inc., 17 P. & F. Rapto
Rea. 2d 843 (1969) 22... cece ccc ceccecuue 46
Complaint Concerning the CBS Program ‘The Selling
of the Pentagon,’’ 30 F.C.C. 2d 150 (ISTO) ccwcess 42
LOGO) 5 556 56 605664 pe ees wandeasnneiesd caaves von 43
Complaints Covering CBS Program ‘‘Hunger in
America,’’ 20 F.C.C. 2d 143 (1969) ............. 43
Democratic State Central Committee, 19 F.C.C. 2d 833
NOOS) cet edanebcawendawns vvvud bidwoeenecciss 22
Editorializing by Broadcast Iicensees, 13 F.C.C. 1246
OND) ios es ax oo 1ebanya en yeseds aatencidesss 24, 30
Handling of Public Issues Under the Fairness Doc-
trine, 33 F.C.C. 2d 554 (1972) .................. 11
andling of Public Issues Under the Fairness Doc.
trine, 33 F.C.C. 798 (1972) ..........0.0c005e ee. 11
Homer P. Rainey, 11 F.C.C. 898 (1947) ........000.. 22, 23
~—
—
Viii Index Continued
Page
John P. Crommelin, 19 P. & F. Ravto Rea. 1392 (1960) 26
Lawrence M. C. Smith, 25 P. & F. Rapto Rec. 291, 293
SOOO) 05505 o5ssGusanesbn gh scsueuescdensieeess 61
Loyola University, 12 P. & F. Ravio Rec. 1017 (1956) .. 24
Mrs. Madalyn Murray, 40 F.C.C. 647 (1965) ........ 22
Nicholas Zapple, 23 ¥.C.C. 2d 707 (1970) ............ 64
Obligation of Licensee To Carry Political Broadcasts,
25 P. & F. Rapto Rea. 1731 (1963) .............. 26
Petition for Rulemaking To Require Broadcast Li-
censees To Show Nondiscrimimation in Their Em-
loyment Practices, 18 F.C.C, 2d 240 (1969) ....53,74
Public Service Responsibilities of Broadcast Licensees
Ge) PPCCTET PTE EE TET TC COT TC CLT CT TCT ree 24
Robert Harold Scott, 11 F.C.C. 372 (1946) .......... 22, 24
Sam Morris, 11 F.C.C. 197 (1946) .............. 22, 23, 24
United Broadcasting Co., 10 F.C.C. 515 (1945) ....10, 13,
20-24, 67, 78
Constitution, STATUTES AND REGULATIONS:
U. S. Constitution
First Amendment ................0e cece eeees passim
Fifth Amendment ..............0ceeceeceees 2, 50, 55
Fourteenth Amendment .................00. 55, 68, 78
Fifteenth Amendment .............00ceeeeeees 15, 78
Communication Act of 1934, 47 U.S.C. § 151 et seq.
Section 3(h), 47 U.S.C. §153(h) ...............31, 34
Section 301, 47 U.S.C. § 301 ...............00 05: 51
Section 303, 47 U.S.C. § 303 .......... 0. cc cee eee 19
Section 307, 47 U.S.C. § 307 ............. 0c eens 19
Section 309, 47 U.S.C. § 309 ............... 0 eee 19
Section 315, 47 U.S.C. § 315 ................ 25, 26, 65
q Section 326, 47 U.S.C. § 326 ................ 13, 27, 30
; 86 Stat. 3 (1972 Amendments) .................. 26
4 Interstate Commerce Act, 49 U.S.C. § 1 et seq. ........ 31
4 Radio Act of 1927, 44 Stat. 1162, ch. 169 ............ 27-31
‘ DO tLe, 6 OUNCOE 955.555 44504 6eee cs dev seesseaveses 3
; Be WO, BIRONL) 5c oie ond dena ceenceacbees seein 2
47 C.F.R. § 73.658(k) 2.0.0... ccc cee cece eee eeee 64
WNT, LEE LE MN TEINS TE TEA IY A ITE EO MEL MES LI EE
Index Continued ix
CONGRESSIONAL MATERIALS: Page
Congressional Record
Volume 67 ............0000.0.005. 20, 28, 29, 31, 32, 33
Volume 68 ......................0.5.. rere r Te 28, 32
VOUS TB io v5.5 ine 4 5 t600 0s Se cenreaoccancos:, 30, 33
Volume 118 ............. 0. ccc cece cee c ence 48
Hearings on II.R. 7357 Before the House Committee on
the Merchant Marine and Fisheries, 68th Cong., 2d
Sess. (1924) 2.0.0... eee eee eee 28
Hearings on I1.R. 13721 Before the House Subcommit-
tee on Communications and Power, Committee on
Interstate and Foreign Commerce, 91st Cong., 2d
Sess. (1970) 0.0... eee cece ec eee cece eee. 46
Hearings on Miscellaneous Bills To Amend the Com-
munications Act of 1934 Before a Subcommittee of
the House Committee on Interstate and Foreign
Commerce, 84th Cong., 2d Sess, (1956) 2.2.20... 25
Hearings on Proposed Amendments to the Federal
Corrupt Practices Act and Hatch Political Activi-
ties Act, Before the Senate Subcommittee on Privi-
leges and Elections, Committee on Rules and Ad-
ministration, 82d Cong., Ist & 2d Sess. (1951-2) .. 25
Hearings on 8.6 Before the Senate Committee on In-
terstate Commerce, 71st Cong., 2d Sess, (1930) .. 19
H. R. Rep. No. 1069, 86th Cong., Ist Sess. (1959) .... 26
H. R. Rep. No. 91-257, 91st Cong., Ist Sess. (1969) .. .47, 60
8. Rep. No. 562, 86th Cong., Ist Sess. (1959) ........ 26
8. Rep. No. 91-751, 91st Cong, 2d Sess, (1970) ........ 60
MISCELLANEOUS:
Alexander & Meyers, The Switch in Campaign Giving,
Fortune, November 1965, p. 212 ........... ictes OL
American Pouitica, Science Ass’x, Towarp a More
Responsis_e Two Party System (1950) .......... 59
G@. Archer, History of Radio to 1926 (1938) 2.2... 0.02. 19
Army Enlists Ayer for Ad Blitz, Broapcastine, Feb.
22, 1971, p. 38 2. eee, 48
x Index Continued
Page
Baran, On the Impact of the New Communications
Media Upon Social Values, 34 Law & Contemp.
ge ee) ee ee ee 60
Brennan, The Supreme Court and The Meiklejohn In-
terpretation of the First Amendment, 79 Harv. L.
ae ee) eee ee ee ee eer 36
Buz, A Statement From NAB Cope Compiiance Com-
vty, Ot) 2 eet ee ee ere 20
Brief for Respondent Columbia Broadcasting System,
Inc., No. 717, Oct. Term, 1968 ..............0005. 66
BroapcastTinG, July 15, 1939, p. 9.0... cece cece eeee 20
Z. CHAFEE, GOVERNMENT AND Mass CoMMUNICATIONS
CADET YK anc ktvs eve ues can eess sas 0504 4eks bs oks 34, 51
EK. Cueataam, A Lawyer WHEN NEEpeED (1963) ...... 39
Coase, Evaluation of Public Policy Relating to Radio
and Television Broadcasting: Social and Economic
Issues, 41 J. Lanp & P. U. Econ. 161 (1965) ...... 54
EK. Erron, Toe News Twisters (1971) ............... 46
F. Frrenpiy, Dug to Circumstances Beyonp Our Con-
PG: CAD anions 05 b5ed veh aes 0x 0540cnesase 52, 54
Friendly, The Federal Admumistrative Agencies: The
Need for Better Definition of Standards, 75 Harv.
Di, Bot. ORS (I0GE) cc nved ers scan scessausn gees 27
Harris, President’s Using TV Helps, Cuicaco Trisung,
oe Se ee ere ree ere rye 48
H. Herrincer, A Decape or Rapro ApvERTISING (1933).. "19
Horowitz, The Misleading Search for ‘‘State Action”’
Under the Fourteenth Amendment, 30 So. Cat. L.
BONY, OS CID ou oon ss 65456 006% 5400s cas s8s ees 75
Jaffe, The Editorial Responsibility of the Broadcaster:
Reflections on Fairness and Access, 85 Harv. L.
WY TOG, GTS) ovis 000405 55508068840 x Hh 508 41, 65, 80
Jaffe, We Need the Pastore Bill, New Repusuiso, Dec. 6,
EPP: BO 5555005550550 ke on eker sess casks anes 51
J. James, AMERICAN PouiticaL Parties (1969) ....... 60
Te das, Riciases Sia abetacasssa a iahkia anid gs ic ee
= Le, eT a eee
Index Continued xi
Page
Kalven, Broadcasting, Public Policy and the First
Amendment, 10 J. Law & Econ. 15 (1967) ........ j2
Kalven, The Concept of the Public Forum: Cox v. Lou-
istana, 1965 Sup. Cr. Review 1 ................... 49
Kalven, The New York Times Case: A Note on “The
Central Meaning of the First Amendment,’’ 1964
Sup. Cr, Review 191 ......... 0.0... cece cece aee 36
J, Kuapper, Tue Errects or Mass ComMUNICATIONS
fo) ee ern een 47
D, Lacy, FREEDOM aNp Communications (1961) ...... 54
K. Lane & G. Lane, Potitics anp TELEvision (1968) .. 47
J. MoGinnis, THe SELLING oF THE PRESIDENT 1968
(ROMY 5 opener an hey008dne be sesann ns atsceceean 48
McNeiL, THe Propte Macuine: Tue INFLUENCE OF
TELEVISION IN AMERICAN Pouitics (1968) ........ 60
C. Merriam & H. Gosnevt, THe AMERICAN Party Sys-
TEM (1969) 2.0... ccc cece cece c cues 60
J. Mitt, On Liserty (R. McCallum ed. 1947) ........ 39
L. Mumrorp, Tue Crry iy History (1961) ........... 48
NaTIoNAL ASSOCIATION OF RapIO AND TELEVISION BRoAD-
CASTERS, THE TELEVISION CopE (1952) ............ 25
NAB Revises Code, Expanps Lasor RELATIONS, BROAD-
CASTING, Aug. 13, 1945, p. 20 2.0.0.0... cece 21
Peterson, Political Broadcasts, 9 J. Fev. Comm. Bar
ASSN. 20, (1948) 2.2.0.0... ccc ccc cece cece ces 25
Radcliffe, Censors, Setectep Essays on ConstITUTIONAL
Law 1938-1962 (Barrett et al. ed. 1963) ...... 36, 37, 45
Richards, FCC Upsets NAB Code on Controversies,
Broapcastino, July 2, 1945, p.15 ........0 cece 21
C. Rossrrer, Parties & Pourtics ry AMERICA (1967) .... 60
KE. Scuartscunemer, Party GovERNMENT (1942) ...... 60
F. Soravr, Party Pourtics 1x AMERICA (1968) ........ 59
Thompson, The Crapshoot for Half a Billion, Lirr,
Sept. 10, 1971, p.47 oo... ccc ccc ccccees 54
xii Index Continued
Page
TV Channels, Wasuincton Post, Aug. 6, 1972 ........ 64
Twentietu Century Funp, CoMMIssioN ON CAMPAIGN
Costs rx Exectronic Era, Voter’s Time (1969) .. 61
U. S. Dept. or Commerce, RecoMMENDATIONS FOR Reov-
LATION OF Rapio (1924) ....... cece eee eeeeeeees 8]
L. Wuire, Toe American Rapto (1947) .........0065 20, 22
T. Waite, THe Makino or THE Presipent 1960, 352-53
USGL). «ais nc ccaansenever ses vane icivowense sacs 47
Q. Wycxorr, THE Imace Canprpates (1968) .......... 46
on
<of HPA ID A MIMAAI STE EE I een
SE Pe Ae Pe ee
_
IN THE
Supreme Court of the United States
OcToBER TERM, 1972
No. 71-863
CoLUMBIA BroancasTING System, INc., Petitioner,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL., Respondents.
No. 71-864
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED StaTEs, Petitioners,
a *
BusINEss EXECUTIVES’ MOVE FOR VIETNAM PEACE AND
DEMOCRATIC NATIONAL COMMITTEE, Respondents.
No. 71-866
AMERICAN BROADCASTING CoMPANIES, INC., Petitioner,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL., Respondents.
On Writs of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit
BRIEF FOR RESPONDENT DEMOCRATIC NATIONAL
COMMITTEE
OPINIONS BELOW
The opinion of the Court of Appeals (App. 446) is
reported at 450 F.2d 642 (1971). The opinion of the
Federal Communications Commission (App. 247) is
| a.
reported at 25 F.C.C. 2d 216 (1970). The opinion of
the Federal Communications Commission in Business
Executives’ Move for Vietnam Peace (App. 357) is
reported at 25 F.C.C. 2d 242 (1970).
JURISDICTION
The judgment of the Court of Appeals (App. 492)
was entered on August 3, 1971. Petitions for rehear-
ing were denied October 4, 1971 (App. 494). Petitions
for certiorari were filed January 3, 1972, and granted
February 28, 1972 and the cases consolidated with No.
71-865. Jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Pertinent provisions of the First and Fifth Amend-
ments and of the Communications Act are set forth in
the Addendum, pp. la-4a, infra.
QUESTIONS PRESENTED
1. Whether the Federal Communications Commis-
sion may, consistently with the provisions of the Com-
munications Act of 1934 that it promote the public
interest and not interfere with the right of free speech,
approve an absolute ban of all radio and television
broadcasts paid for by a national political party on
issues of public importance, while at the same time
broadcast licensees accept paid advertisements on sub-
jects which they do not deem ‘‘controversial.”’
2. Whether the Federal Communications Commis-
sion’s approval of such an absolute ban on broadcasts
paid for by a national political party is consistent with
the First and Fifth Amendments.
7
= x nm
ia 4
a
_—_
3
STATEMENT
On May 19, 1970 the Democratic National Commit-
tee (DNC), governing body of the National Democratic
Party between conventions, filed with the Federal Com-
munications Commission a request for a declaratory
ruling under 5 U.S.C. § 554(e). (App. 15.) The re-
quest stated that the DNC was planning a nationwide
fundraising campaign as part of which it desired to
purchase program and spot announcement time, at reg-
ular rates, on individual radio and television stations
and on national networks. The planned paid-for
presentations would be devoted in some eases to solici-
tation of funds, in others to presenting the DNC’s views
on issues of public importance. (App. 16-17.) The
DNC stated that ‘“‘In 1970 America, this is the only
way the DNC can effectively reach large numbers of
small contributors to the extent necessary to satisfy its .
indebtedness and to promote adequately its candidates
and causes.’’ (App. 16.)
The DNC noted that the CBS television network had
already refused a DNC request to purchase a one-half
hour segment of prime time for a program on current
issues which would have included an appeal for funds,
and that a CBS executive had said that no time would
be sold ‘‘for presenting currently controversial points
of view”’ except during an undefined period of ‘‘election
campaigns.”’ (App. 22-23.) It also stated that the ABC
network and numerous individual broadcast licensees
refuse as a general policy to sell time for fund solici-
tations. (App. 23-24.) In addition, it had discovered
that the 509 commercial VHF television stations, 180
commercial UHF television stations, 4,280 standard
broadcast stations, and 2,111 commercial FM stations
followed a variety of policies. Some of these broadcast
ena
+
licensees would ban purchase of time by the DNC be-
cause fund solicitation was involved; some because the
broadcasts would contain ‘‘controversial material on a
major political issue of the day;’’ some because no
‘election campaign’’ was currently in progress. (App.
24-25.) The DNC said that because of the uncertainty
resulting from these varying prohibitions, without
clarification from the Commission it would not be in
a position to proceed with its planned broadcasts.
(App. 22.)
The DNC informed the Commission that it did ‘‘not
contend, that broadcasters are precluded from estab-
lishing reasonable restrictions regarding the use by
others of the facilities for which they hold licenses.”
(App. 28.) It stated that ‘‘it. is not necessary for the
Commission to rule that a broadcaster must present
programs or announcements of any particular nature
proffered by any particular concern.’’ (App. 33.) The
DNC requested the Commission to rule that ‘‘a broad-
caster may not, as a general policy, refuse to sell time
to responsible entities, such as the DNC, for the solici-
tation of funds and for comment on public issues,’’ or
alternatively that any such general policy would be
considered adversely to a broadcast licensee in evalu-
ating its service of the public interest. (App. 33-34.)
The Commission requested comments from the three
major broadcasting networks. (App. 35-38.) ABC
replied that
‘‘ABC will determine what subjects are of such
interest or importance as to warrant time for their
presentation. ABC will also decide whether it will
present a contrasting viewpoint itself, or if not,
which individuals or organizations seeking time
are best qualified to discuss a subject chosen for
LTT LSE TE PERLE ALRITE NITE UTNE BEL OE
9)
broadcast treatment or are most representative of
a viewpoint selected for presentation.
‘‘In short, absent special public issue considera-
tions, ABC will not sell time for comment on con-
troversial issues or for solicitation of funds.”’
(App. 45.)?
CBS stated that there was a “long standing CBS
policy not to sell time for the expression of viewpoints
on public issues’? (App. 51), except for ‘broadcasts
on behalf of political candidates or in connection with
ballot propositions’’ (App. 57.)? It commented that ‘A
policy of selling time to partisans would in our view
necessarily distort the manner in which issues were
presented to the listening and viewing public,”’ pos-
sibly resulting in ‘‘one-sided presentations designed to
persuade rather than to inform.”’ (App. 51, 60.) CBS
said that its own news organization had ‘‘a well-de-
served reputation for fairness and objectivity,’’ that
it “has long maintained policies which in general pro-
vide that broadcasts dealing with current controversial
issues be produced under the supervision and control
of CBS News or a CBS Owned station,’”’ and that
“only by lodging these responsibilities with our own
personnel can we effectively insure that objectivity and
fairness will actually be achieved.”’ (App. 50-51.) It
cited as its “fundamental conviction”? the view that
what the public needs is ‘‘some sensemaking whole’’
provided by CBS, and that this ‘‘demands the interven-
? ABC added, without elaboration, that it would be prepared to
accept orders from major political parties to the extent they could
be accommodated on a reasonable basis. (App. 46.)
*CBS stated that it would permit political parties to purchase
“a special category of spot announcements (i.e. up to one minute
in length) for the purpose of political fund-raising.’’ (App. 58.)
za.
6 :
tion of professional journalists between the event and
the public.” (App. 56-57.)*
NBC advised the Commission that it had no policy
preventing sale of program time in the circumstances
outlined by the DNC.
On August 5, 1970, the Commission adopted an opin-
ion and order. (App. 247-273.) The Commission ae-
knowledged that
‘“DNC notes that it is seeking not a ruling which
would require a broadcaster to accept particular
programs or announcements, but only that broad-
casters may not establish arbitrary barriers to ac-
cess by responsible groups. ...’’ (App. 250-251.)
The Commission rejected DNC’s request with respect
to purchase of time to discuss public issues. (App.
273.) One Commissioner concurred separately and one
dissented. (App. 273-287.) The Commission treated
DNC’s request insofar as it pertained to time for fund-
raising as separable, and held that where fundraising
was concerned, ‘‘arbitrary policies with respect to the
sale of broadcast time to significant political parties
for the solicitation of funds’’ were not permissible.
(App. 272-273.)*
8 To demonstrate its scheduled coverage of news and ‘‘important
subjects’ in addition to ‘‘hard news’’ programs and special broad-
casts, CBS enumerated the weekly ‘‘Face the Nation,’’ the monthly
‘“60 Minutes,’’ ‘‘Look Up and Live,’’ and ‘‘Lamp Unto My Feet,”
as well as its subsidiary WCBS-TV’s ‘‘Newsmakers.’’ (App. 51-
52.) It also included a lengthy exhibit of excerpts from news
broadcasts and editorials on the Vietnam War (App. 81-242.) See
n.66, infra.
4 The Commission made no findings with respect to whether CBS,
ABC, or any other network or licensee had met its general statu-
tory obligations of fairness and serving the public interest.
ONS ERIE IIE IN GER LES ER IIRL ILE EIEIO VNB A
7
The DNC then brought a petition for review against
the Federal Communications Commission and the Uni-
ted States in the United States Court of Appeals for
the District of Columbia Circuit. (App. 421.) CBS
(App. 428) and ABC (App. 426) intervened in the
action. The case was consolidated with a petition for
review of the Commission’s decision in Business Exr-
ecutives’ Move for Vietnam Peace (BEM) rendered
the same day.°
The Court of Appeals, one judge dissenting, re-
versed the Commission decision. Relying especially on
this Court’s decision in Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367 (1969), the court held that an ab-
solute and arbitrary ban on the purchase of time for
discussion of public issues violated First Amendment
principles embodied both in the Amendment itself and
in the ‘‘fairness and public interest requirements’’ of
the Communications Act of 1934. (App. 449, 455.) The
Court of Appeals summarized its holding in these
words:
“The actual issue before us is relatively narrow
and we decide it narrowly. ... [Wle leave undis-
525 F.C.C. 2d 242 (1970). BEM sought to purchase time from
WTOP, a broadcast licensee serving the Washington, D.C. area,
for messages concerning the Vietnam War, and was informed that
“it is the policy of Post-Newsweek Stations radio and television
stations not to sell spot announcement time to any individuals or
groups in order to set forth a point of view on any controversial
subject of public importance.’’ App. 297. The BEM case was con-
solidated with the DNC’s in the Commission’s petition for cer-
tiorari in No. 71-864. The intervenors, CBS and ABC, filed peti-
tions for certiorari in Nos. 71-863 and 71-866, respectively. In
addition, Post-Newsweek Stations, Capital Area, Inec., intervened
in the petition for review of the Commission’s BEM order (App.
430), and filed the petition for certiorari in No. 71-865. The DNC
is not a party in No. 71-865.
—~— a
8
turbed the licensee’s basic right to exercise judg-
ment and control in public issue programming
and the sale of advertising time. All we do is for-
bid an extreme form of control which totally ex-
cludes controversial public debate from broadcast
advertising time.
We hold specifically that a flat ban on paid pub-
lic issue announcements is in violation of the First
Amendment, at least when other sorts of paid
announcements are accepted. We do not hold, how-
ever, that the planned announcements of the peti-
tioners—or, for that matter, of any other particu-
lar 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 de-
velop and administer reasonable procedures and
regulations determining which and how many ‘edi-
torial advertisements’ will be put on the air.”
(App. 449; emphasis in original.)
It said that ‘‘the Commission’s and intervenor’s argu-
ment might be somewhat stronger if it were designed
to support a partial ban on editorial advertising con-
cerning issues and views which have im fact been sub-
stantially aired on normal programming time. The
argument is unconvincing, however, in support of a
flat, per se ban on any and all editorial advertise-
ments.’’ (App. 471; emphasis in original.)*®
Citing this Court’s decision in Red Lion Broad-
casting Co. v. FCC, supra, the Court of Appeals
®The Court of Appeals in its opinion did not distinguish be-
tween short ‘‘spot’’ announcements and longer presentations, but
held simply that when some time was sold, it could not be arbi-
trarily denied to purchasers who wished to discuss public issues.
App. 449. The DNC had cited to the Commission CBS’s refusal
to sell one-half hour of prime time. App. 22.
9
noted the unique role of television and radio in
American political debate, and stated that the First
Amendment interests of the public included not just
passively receiving information, but also hearing de-
bate by proponents in a vigorous, ‘“wide-open’’ format.
(App. 466-468.) It noted this Court’s recognition of
the role of political advertisements in New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), and held
that discrimination against such advertisements in fa-
vor of commercial advertisements by broadcast licen-
sees as administrators of a valuable public resource
“intimately bound to government and to service of the
commonwealth,’ would be impermissible. (App. 467,
474, 461, 464.) Paid political broadcasts, said the
court, are ‘‘a special and separate mode of expression,
not simply a duplication of other’ expression on the
same medium.”’ (App. 468-469.)
The Court of Appeals observed that even if an
individual is selected to be interviewed on a news pro-
gram, ‘‘he may expect his comments to be abbreviated
and edited; reporters’ commentary will qualify what
he has to say.”” (App. 468.) Free debate is enhanced,
said the court, when sometimes a speaker has some
control of his presentation, and “‘it has traditionally
been thought that the best judge of the importance of
a particular viewpoint or issue is the individual or
groups holding the viewpoint and wishing to communi-
cate to others.’’ (App. 469.) The flat ban proposed by
the Commission and the networks, said the court, ‘‘con-
forms instead to a paternalistic structure in which
licensees and bureaucrats decide what issues are ‘im-
portant,’ how ‘fully’ to cover them, and the format,
time and style of coverage.” (Ibid.)
—
10
The only issue before it, said the court, was ‘‘a total,
flat ban on editorial advertising.’ It reiterated that
‘all that petitioners condemn here are regulations pro-
viding that public issue advertising may be aired ‘at
no time, in no place and in no manner’ over the broad-
east media.’’ (App. 483.) The court specified that
broadcast licensees were not common carriers, and that
it was not holding that they must sell time to anyone
for any message of public interest. (App. 482.) It
noted that the Commission might appropriately limit
the purchase of time in many ways, as for example
— the total amount of time sold for discussion of
public issues;
— the placement of paid announcements;
— the amount of time sold to particular groups
or viewpoints ;
— the need to protect broadcast licensees from
financial harm;
— the need to assure overall fairness. (App. 484-
486.)
Citing past experience, the court rejected the claim
that sale of some time for discussion of public issues
might be administratively inconvenient. It pointed out
that the Commission in United Broadcasting Co., 10
F.C.C. 515 (1945), had adopted and followed such a
policy without any difficulty. (App. 487-488.) It noted
that ‘‘although many broadcasters already do allow ed-
itorial advertisements on the air, we have not been
shown one reason, based on their experience, to suggest
that chaos has resulted.’’ (App. 484.) The court ex-
pressed confidence in the ability of the Commission to
develop reasonable guidelines (App. 485-486), and di-
ll
rected that it do so (App. 488). When those guidelines
were developed, DNC would be permitted to reapply
to purchase time and permitted to do so, unless its re-
quest did not comply with the guidelines of the Com-
mission. (Ibid.)
Judge McGowan in dissent noted that the court had
held only that the Commission should make reasonable
regulations which would not totally ban purchase of
time for discussion of public issues. He said he thought
the Commission’s task was not easy, but he agreed that
“it may well be that a detailed inquiry and investiga-
tion by the Commission of this area, by formal rule-
making or otherwise, would be both useful and conso-
nant with the Commission’s continuing obligation to
see to it that the public interest obligations of licensees
are being met in the most effective way.’’ (App. 491.)
He disagreed with the court’s conclusion that a flat
ban on sale of time for discussion of publie issues was
invalid on constitutional grounds.
The Court of Appeals denied petitions for rehearing
(App. 494) and for stay of mandate (App. 496, 498).
This Court on January 24, 1972, likewise denied a stay
of mandate. Thereupon the Commission by public no-
tice solicited comments on fashioning guidelines which
would regulate paid broadeasts on public issues but not
ban it completely.? On February 28, 1972, this Court
granted certiorari and also stayed the mandate of the
Court of Appeals. The Commission then withdrew its
previous notice.®
"Handling of Public Issucs Under the Fairness Doctrine, 33
F.C.C. 2d 554 (1972).
*Handling of Public Issues Under the Fairness Doctrine, 33
F.C.C. 2d 798 (1972).
12
SUMMARY OF ARGUMENT
The issue in this case is whether the public air-
waves—the dominant communications medium in the
United States—are to be used by those who sell soap,
brassieres, deodorants, and mouthwashes, but not by
those who espouse political ideas.
The Federal Communications Commission ruled that
radio and television broadcast licensees, although they
sell time for commercial advertising, have no obligation
whatsoever to let a national political party purchase
time at the going commercial rate to discuss public
issues. A ban on purchasing time for political fund-
raising, the Commission held, would be ‘‘arbitrary”
and impermissible ; a ban on purchasing time for polit-
ical speech was not. The Court of Appeals reversed the
latter part of the ruling, on a narrow basis: it
held that no one of course has an absolute or
unrestricted right to purchase time on the public’s
broadcast channels, but that for the Commission to’
uphold a total and arbitrary ban on the sale of any
time for discussion of public issues violated both the
Communications Act of 1934 and the First Amend-
ment. The Court of Appeals remanded to the Com-
mission to-develop rules with reasonable restrictions
which would not absolutely ban purchase of time for
discussion of public issues, and which would accom-
modate the interests of both the broadcast licensees
and the public.
Rarely have litigants before this Court taken a more
extreme position than the broadcast licensees in this
case. Without any reference to the rules the Commis-
sion is to promulgate—for the Commission has not. yet
done so—the licensees argue that no one is ever en-
titled to purchase any time to discuss public issues.
Cf. Times Film Corp. v. City of Chicago, 365-U.S8. 48
(1961). Their broadside attack is inconsistent both
Al
ake
Sy
13
with the Communications Act, as previvusly inter-
preted by the Commission, and with the decisions of
this Court construing the First Amendment,
ms
The Commission utterly rejected the very claim
which the licensees now assert the first time it was
made. In the landmark United Broadcastin g decision,
it held that ‘‘operation of any station under the extreme
principles that no time shall be sold for the discussion
of controversial public issues’’ was ‘inconsistent with
the concept of public interest established by the Com-
munications Act.’ 10 F.0.C. 515, 518 (1945). United
Broadcasting was followed in many subsequent in-
formal actions and rulings. Thus there is nothing
_ ‘new or untried in the Court of Appeals’ holding; and
| indeed it appears that some licensees currently do sell
_ time for discussion of public issues.
This ‘‘public interest’? holding is buttressed by § 326
of the Act, which the Commission has held includes an
affirmative duty to promote a system of free expression.
It most certainly is not altered by the fact that the
Act provides differing regulatory frameworks for com.~
mon carriers of personal point-to-point messages in
Title II, and broadcasting in Title III. No one is
arguing that a radio station is a telephone company,
and the court’s narrow denial of the licensees’ asserted
absolute power does not make them such. The “large
public aims,’’ National Broadcasting Co. v. United
States, 319 U.S. 190, 218 (1943), of the Communica-
tions Act clearly ‘incorporate the First Amendment ’s
mandate that debate of public issues is to be encour-
aged, and is to be ‘uninhibited, robust, and wide-open.”
See New York Times Co. v: Sullivan, 376 U.S. 254, 270
(1964). If licensees may totally ban everyone from
purchasing time to talk about public issues, that debate
is diminished.
—
14
II.
From Mr. Justice Holmes’ dissent in Abrams y,
United States, 250 U.S. 616, 630 in 1919 to this Court’s
holding in Red Lion Broadcasting Co. v. FCC, 395 U.S,
367, three years ago, this Court has reiterated that the
central purpose of the First Amendment was to create
a marketplace of ideas, especially for political topics.
Red Lion held that that goal applies with undiminshed
force to the broadcast media.
The broadcast licensees seek something different.
They plan, in the words of one of them, to ‘‘intervene”’
at all times between the public and those who would
address it. Although conceding that the First Amend-
ment includes a right of the public to be informed,
the licensees say that they alone will inform it.
No three men—not even the chief executives of the
three major networks—can be permitted such power
if the First Amendment is to have meaning today.
Radio and television are the dominant medium in the
United States. If the right to speak in public streets
and parks, whose primary function is not communica-
tion, may not be arbitrarily denied, surely no less is
true for the public’s airwaves, which serve no other
purpose. Cf. Grayned v. City of Rockford, 40 U.S.L.
WEEK 4881 (U.S. June 26, 1972). As applied to a
national political party, such restrictions interfere with
the right of political association at the national level,
and with the political parties’ function of translating
inchoate discontent into peaceful and constructive gov-
ernmental action. If totally barred from paying for
aecess to the one medium which most Americans see,
groups may turn away from debate to non-peaceful
methods of change. At the least, they will be encour-
aged to engage in conduct so bizarre that television
cameras will cover it as ‘‘news.”’
15
Petitioners seek a constitutional inversion. They
would exalt commercial speech (which this Court has
held enjoys lesser constitutional protection) over poli-
tical speech (which is at the core of the First Amend-
ment). Such discrimination is inconsistent with the
equal protection guarantees of the Constitution, as
well as with the First Amendment. Police Dept. v.
Mosley, 40 U.S.L. Week 4877 (U.S. June 26, 1972) ;
Grayned v. City of Rockford, supra. Moreover, the
standard which the licensees propose to use in banning
speech—‘controversial issues’—is so broad in its
sweep, as well as vague in its meaning, that it is itself
unconstitutional. Ibid.
No other medium is involved here. Broadcasting,
this Court has said, is unique.’’? Red Lion, supra, 395
US. at 390. The medium has been pervasively regu-
lated since its infancy—so pervasively regulated that
the Commission itself has suggested that it may be
required to apply the Constitution even to licensees’
employment practices. Broadcast licensees use, free
of charge, a scarce resource which not only belongs to
the public, but was actually created by the Congress,
for a single purpose: to serve the public interest in
communication.
The licensees now argue (with no support from the
Solicitor General or the Commission) that because the
Commission has adopted a ruling permissive in form,
it is not a ruling subject to First Amendment restric-
tions. But such agency actions are routinely reviewed
by courts to assure that the agency has complied with
the Constitution and laws. Moreover, the status of the
First Amendment is special. Like the Fifteenth
Amendment, it protects the lifeblood of the govern-
mental process. Where speech is concerned, this Court
has held that a federal licensee, even one whose primary
function is not communications, is subject directly to
the First Amendment when that licensee’s govern-
mentally approved actions affect speech. Public Utili-
ties Comm’n v. Pollak, 343 U.S. 649 (1944). And just
as a private group may not ignore the Fifteenth
Amendment if it takes over the only effective access to
$ the electoral process, neither may the broadcast licen-
sees constrict access to the marketplace of political
ideas—particularly when their ability to do so stems
entirely from a federal grant of power. Cf. Terry v.
Adams, 345 U.S. 461 (1953) ; Smith v. Allwright, 321
US. 649 (1944). Even when other constitutional pro-
visions are invoked, many cases have held that when
government provides property and intimately regulates
an activity for public ends, certain basic constitutional
safeguards attach to the use to which that property is
put. See, e.g., Burton v. Wilmington Parking Author-
ity, 365 U.S. 715 (1961).
This is not to say, of course, that every action by a
licensee is subject to every constitutional restriction.
And of course the licensees have legitimate First
Amendment interests of their own. But the First
Amendment will not tolerate monopolization of the
broadcast spectrum, “‘whether it be by the Government
itself or a private licensee.’’ Red Lion, supra, 395 U.S.
at 390. And if time is paid for at the full commercial
rate, how is the licensee harmed? There are some limits
in restricting the public’s speech beyond which the li-
censees may not constitutionally go. The absolute
power they seek here exceeds those limits.
In familiar fashion, the licensees warn that insu-
perable administrative difficulties will follow if their
‘ .
eB,
FON PAS ETS ITS ee
17
claim of arbitrary power is denied. N othing of the
sort is true. The Court of Appeals specifically required
the Commission to formulate a rule which would not
allow anyone to buy disproportionate amounts of time,
which would give weight to the overall public interest,
and which would also protect the economic and editorial
interests of the licensees. Many reasonable accommo-
dations of these interests are possible. In any event,
the right of political speech is not to be abridged be-
cause of imagined difficulties or for administrative
convenience, and ‘‘there will be time enough to recon-
sider’’ if such extravagant fears are realized. Red
non, supra, 395 U.S. at 393. The fact that the broad-
cast licensees thrived for many years without the arbi-
trary power they now seek suggests that the end of
American broadcasting is not at hand. Were this Court
to endorse their claims, however, the end of television’s
full potential for political speech in an electronic age
might well be.
ARGUMENT
lL AN ARBITRARY AND ABSOLUTE BAN ON PURCHASE BY A
NATIONAL POLITICAL PARTY OF RADIO AND TELEVI.
SION TIME IS INCONSISTENT WITH THE COMMUNICA.
TIONS ACT OF 1934.
It is a precept of this Court too long settled for argu-
ment that constitutional decisions are to be avoided
where statutes can reasonably be construed to avoid
them, and that the enactments of Congress are to be
construed so as to harmonize with the Constitution
whenever possible. See, €.9., Ashwander v. TVA, 297
U.S. 288, 346-348 ( 1936) (Brandeis, J., concurring).°
* Among numerous examples are Schneider vy. Smith, 390 US.
17 (1968) ; International Ass’n of Machinists v. Street, 367 US.
740 (1961); Greene v. McElroy, 360 U.S. 474 (1959); Kent v.
Dulles, 357 U.S. 116 (1958).
a
18
The Court of Appeals found in the Communications
Act an alternative basis for its holding.” The right
of a national political party not to be totally and arbi-
trarily barred from purchasing broadcast time at full
commercial rates for discussion of public issues is ree-
ognized in the Communications Act of 1934, and is con-
sistent with the Act’s purpose, legislative history, and
prior interpretation.
A. An Arbitrary and Absolute Ban on Paid Announcements of
a Political Party is Inconsistent with the Communications
Act’s Requirement that Broadcast Licensees Serve the
Public Interest, and with the Commission’s Long-Standing
Interpretation of that Requirement.
Petitioners imply that invalidating an absolute ban
on purchase of time for political discussion requires
broadcast licensees to pursue a new and untried policy.
Nothing could be farther from the truth. Removal of
the absolute ban simply returns broadcasting to the
long-standing practice under the ‘‘public interest”
mandate of the statute, a practice which broadcast li-
censees found tolerable for many years, and which at
least one major network apparently has followed up
‘to now."
The Communications Act in five separate provisions
directs the Federal Communications Commission to
regulate broadcasting in such a way as to promote “‘the
10‘‘ Whether our decision is styled as a ‘First Amendment de-
cision’ or as a decision interpreting the fairness and public interest
requirements [of the Communications Act] ‘in light of the First
Amendment’ matters little.’’ App. 455.
11 NBC stated that it had ‘‘no policy’’ preventing sale of time to
the DNC (App. 47). It now asserts that its willingness to sell time
was an act purely ‘‘in the exercise of its discretion.’’ Brief for
Amicus Curiae at 3.
~Aam
wen Redes.
. yg COE
ET 2 TRE SP
t the statutory ‘public interest’? requirement pro-
ibits licensees from totally banning purchase of time
discuss political issues. The assertion that licensees
ight do so was forcefully rejected by the Commission
e first time it was made, and numerous subsequent
From the earliest days of radio, both advertise-
ents and discussions on a wide variety of contro-
ersial public issues* were common. Broadcast time
See 47 U.S.C. §§ 307(a), 309(a) (standard for licensing) ;
U.S.C. § 307(d) (standard for renewing or modifying licenses) ;
U.S.C. § 303(b) (standard for prescribing nature of service) ;
U.S.C. § 303(r) (standard for determining when rules shall be
mulgated). The Commission has held that the duty under
U.S.C. § 303(b) to “prescribe the nature of the service to be ren-
red’’ by licensees means that ‘‘the Commission can and must
uire the achievement’’ of a broadcasting system which makes
‘great contribution .. . to an informed public opinion on vital
lic issues of the day.’” App. 257.
* The first paid announcement was broadcast by station WEAF
New York in 1922. q. ARCHER, History or RaDio To 1926, 275-
397-99 (1938). Advertising was looked upon as at best a
essary evil, and an early policy statement of the National Asso-
ion of Broadcasters stated that ‘‘commercial announcements,
he term is generally understood, should not be broadcast be-
en 7 and 11 p.m.”’ Hearings on 8. 6 Before the Senate Com-
fee on Interstate Commerce, 71st Cong., 2d Sess. (1930) ; see
id. at 1705 (President of NBC).
‘#H HErtincEr, A DECADE or Rapio ADVERTISING 300 (1933).
20
was purchased especially often for political discus-
sions, most often to promote candidacies.”
Then in 1939 the National Association of Broadcast-
ers, a trade association of broadcast licensees, adopted
a new ‘‘Code’’ which for the first time asserted an
across-the-board policy of refusing to sell time for dis-
cussion of controversial subjects—though even then
the NAB did not venture to assert a right to ban po-
litical broadcasts.** The provision read:
‘“‘Time for the presentation of controversial issues
shall not be sold, except for political broadcasts.’
The first major test of this new policy came when CBS
refused to sell time to the Co-operative League of the
United States, saying the network’s policy was ‘‘not
to sell time for programs devoted to public controver-
sial issues.’”? When the League raised a protest, how-
ever, CBS decided to accept the broadcasts."
Soon afterward the F.C.C. rendered its United
Broadcasting decision,” described by one historian of
radio as ‘‘a memorable order which, in effect, threw
the door open to the sale of time for the discussion of
public issues.’ The case arose when a licensee refused
18 Cf. 67 Cona. Rec. 5483 (1926) (remarks of Mr. Celler com-
plaining of charge of $10 per minute).
16 ** Political broadcasts, as defined, are excepted because ‘at cer-
tain times the contending parties want to use and are entitled to use
more time than broadcasters could possibly afford to give away.”
Buu, A STaTEMENT From THE NAB CopE CoMPLIANCE COMMITTEE
2 n.1 (1939).
17 See BROADCASTING, July 15, 1939, p. 9.
187, WHiTz, THe AmERIcAN Rapio 77-82 (1947).
19 United Broadcasting Co., 10 F.C.C. 515 (1945).
20L. WHITE, supra n. 18, at 80.
21
to sell broadcast time to a labor organization, citing
its policy against selling time for ‘programs which
solicit memberships, discuss controversial subjects,
race, religion, and politics.”’ After the case was brought
to the attention of the Commission the licensee reversed
its policy. In approving a consent order, the Commis-
sion explicitly rejected the very same arbitrary policy
which petitioners argue for here:
“The Commission . . . is of the opinion that the
operation of any station under the extreme prin-
ciples that no time shall be sold for the discussion
of controversial public issues and that only charit-
able organizations and/certain commercial inter-
ests may solicit memberships is inconsistent with -
the concept of public interest established by the
Communications Act as the criterion of radio regu-
lations .. .’4
Reaction to the decision was immediate.” In less than
two months the NAB had amended its Codé to delete
the ban on sale of time for discussion of controversial
issues.” Thereafter the Commission made sure, gen-
erally by informal means, that its clear policy was fol-
lowed even by the recalcitrant:
“(T]he F.0.C. fought valiantly for the right of
legitimate minority groups to have time on other
people’s stations. As we have seen, the Commis-
sion took up the cudgels for the cooperative move-
ment and organized labor in the early forties to
7110 F.C.C. at 518.
* Broadcasting magazine reported : ‘‘The FCC June 26 stated its
flat opinion that radio time should be sold for the discussion of
controversial public issues. ’’ Richards, FCC Upsets NAB Code on
Controversies, Broapcastine, July 2, 1945, p.15.
See NAB Revises Code, Expands Labor Relations, Broapcast-
ING, Aug 13, 1945, p.20.
>... a at ee
SSS ee,
——y
22
amend its code to permit these groups to be heard.
During 1945 and 1946, the F.C.C. gave sympa-
thetic ear to complaints by the Steelworkers
against WGY (Schenectady), by the United Elec-
trical Workers against WICC and other Bridge-
port stations, by the United Auto Workers against»
WGBV and other Indiana stations and against
WBCM (Bay City, Michigan), and by the Cincin-
nati Industrial Council against WKRC (Cincin-
nati). Most of them were followed up and quietly
settled ‘out of court.’ ’’™
Some cases went to formal ruling, however. In them
the Commission made clear that the ‘‘ public interest”’
mandate of the statute, while allowing reasonable dis-
cretion, not only prevented absolute refusals to sell time
for political discussion, but also. prevented total bans
on sale of time for such public issues as abstinence, or
such important topics as religion. In Robert Harold
Scott, 11 ¥.C.C. 372 (1946), when a broadcast licensee
% 1), WHITE, supra n.18, at 175. The Solicitor General and Com-
mission dismiss the United Broadcasting case as ‘‘dicta,’’ appar-
ently because the licensee rather than lose its license acquiesced in
the policy which the Commission said was required. See Brief for
the United States and the Federal Communications Commission at
47. The Brief for Post-Newsweek Stations, Capital Area, Inc. in
No. 71-865, calls United Broadcasting Co. ‘‘an eccentric departure
from an otherwise uniform line of Commission pronouncements.”
Id. at 37 0.36. Of the three recent Commission rulings the brief
cites, Democratic State Central Committee, 19 F.C.C. 2d 833
(1968), involved free time under the fairness doctrine. Mrs. Mada-
lyn Murray, 40 F.C.C. 647 (1965), was a request under the fairness
doctrine for time at preferential rates to discuss religion. In any
event, neither involved an asserted total ban on sale of time for
controversial issues. The unreported letter to Washington
Women’s Strike for Peace, see App. 366, was again a complaint
about failure to provide time to one particular group. The briefs
for intervenors CBS and ABC do not refer to the United Broad-
casting, Albuquerque Broadcasting, Scott, Rainey, or Morris cases
(see infra) at all.
23
had refused to sell time at the going rate for a talk
on religion, the Commission said the ‘‘publie interest”’
requirements of the Act would not permit an absolute
ban on sale for such discussion :
‘Freedom of speech can be as effectively denied
by denying access to the public means of making
expression effective — whether public streets,
parks, meeting halls, or the radio—as by legal
restraints or punishment of the speaker.
* * *
“The criterion of the public interest in the field
of broadcasting clearly precludes a policy of mak-
ing radio wholly unavailable as a medium for the
expression of any view which falls within the scope
of the constitutional guarantee of free speech,’? %
See also Homer P. Rainey, 11 F.0.C. 898 (1947), in
which the Commission, relying on United Broadcasting
Co., supra, disapproved a licensee’s policy of refusing
to sell substantial amounts of time to political candi-
dates:
‘Obviously, it would not be in the public interest
for the licensee of any radio station . . . to arbi-
trarily deny or restrict the right of any person or
group to discuss a public controversial issue... .””
11 F.C.C. at 903 (1947). 5 ee
Cf. Sam Morris, 11 F.C.C. 197 (1946) (noting, on com-
plaint that licensee had refused to sell time for “‘absti-
nence broadcasts,” that beer and wine commercials
raised an issue of public importance’’) 8
7511 F.C.C. at 373, 376.
7° When a licensee complained of administrative problems in
selling time for paid broadcasts on controversial issues, the Com-
mission reiterated -
“ {T]he possibility of the occurrence of such difficulties does
not justify a station licensee in adopting a general rule that it
, ot
When in 1949 the Commission undertook a review
of its policies in the ‘‘fairness’’ area, with particular
emphasis on editorials by licensees, it reaffirmed its
adherence to its earlier decisions, and said that ‘‘the
inevitability that there must be some choosing between
various claimants for access to a licensee’s microphone,
does not mean that the licensee is free to utilize his
facilities as he sees fit or in his own particular interests
as contrasted with the interests of the general public.’™
When the issue arose thereafter, the important role of
purchased as well as of free time to discuss public issues
was recognized.”
will not make time available for the discussion of controversial
subjects or for broadcasts by duly qualified candidates for
public office... . Such refusal is inconsistent with the concepts
of public interest established by the Communications Act as
the criterion of radio regulation.’’ -Albuquerque Broadcasting
Co., 3 P. & F. Rapio Rea. 1820, 1821 (1946).
27 Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1248
(1949). There is no basis for the Commission’s assertion, at p.
47 of its brief, that the United Broadcasting Co. decision was
somehow without explanation swallowed up or overruled sub
silentio by the 1949 Editioralizing report’s reiteration of the gen-
eral fairness doctrine and the licensee’s duty to provide coverage
of public issues. The 1949 report in this respect was a restatement,
focused on licensee editorializing, of the principles in the Commis-
sion’s famous ‘‘Blue Book,’’ Public Service Responsibilities of
Broadcast Licensees (1946), issued a few months after the United
Broadcasting Co. decision. That 1946 issuance contained, like the
1949 reiteration, a statement that ‘‘the public interest clearly re-
quires that an adequate amount of time be made available for the
discussion of public issues.’’ Id. at 40. There was no suggestion
that requirement absolved licensees from the separate, but comple-
mentary, requirement in United Broadcasting, Scott, and other
cases that time not be totally withheld from all those who wished
to purchase it to discuss issues. The fact that Scott, Morris, and
Albuquerque Broadcasting were decided after the Blue Book con-
firms this.
28 See City of Jacksonville, 21 F.C.C. 334, 342 408 (1956) ; ef.
- Loyola University, 12 P. & F. Ravio Reo. 1017, 1099 (1956).
a tS nt) i att a ee
25
So clear was the understanding that licensees could
not totally ban speech on controversial issues that this
“public interest’’ requirement was interpreted by the
broadcast industry as overriding even the explicit
reservation in § 315 of the Act that time need not be
sold to candidates for public office.2® The understanding
was summarized by the President of the National As-
sociation of Radio and Television Broadcasters:
“‘So now you must, as a matter of public inter-
est—though there is not a statute that says you
must take political advertising—the Commission
has made it very clear that if you do not assume
your public responsibility, competitively you may
fail to get a license, or you may lose your license.
... It is not fully true that you can reject all po-
litical advertising and still perform your public-
service duty.*
This Court likewise recognized the force of the *‘publie
interest” requirement in Farmers Educational & Co-
operative Union v. WDAY, Inc., 360 U.S. 525 (1959),
noting that ‘‘the Commission considers the carrying
* Cf. Red Lion, supra, 395 U.S. at 382-83.
8° Hearings on Proposed Amendments to the Federal Corrupt
'Pracices Act and Hatch Political Activities Act Before the Senate
Subcommittee on Privileges and Elections, Committee on Rules and
Administration, 82d Cong., Ist & 2d Sess. 176 (1951-2). Counsel
for the broadcasters agreed. See Peterson, Political Broadcasts,
9 J. Fev. Comm. Bar Assn. 20, 21-22 (1948). Accord, Hearings
on Miscellaneous Bills to Amend the Communications Act of 1934,
Before a Subcommittee of the House Committee on Interstate and
Foreign Commerce, 84th Cong., 2d Sess. 297-8 (1956). See also
NATIONAL ASSOCIATION OF RADIO AND TELEVISION BROADCASTERS, THE
TELEVISION CopE 4 ( 1952) which instead of a flat ban on sale of
time for discussion of ‘‘ Controversial Public Issues’’ stated that
Tequests to discuss such issues ‘‘should be considered on their
individual merits.’’
26
of political broadcasts a public service criterion to be
considered both in license renewal proceedings, and
in comparative contests for a radio or television con-
struction permit.’
Thus a flat ban on sale of time for political discus-
sion, or for other issues of public importance, has on
many occasions been held a violation of the statutory
requirement that broadcast licensees operate in the
public interest. In following the precept that statutes
are to be construed if possible to avoid constitutional
questions,-this Court has not hesitated to interpret
broad and open-ended statutory mandates to that
end. Cf., e.g., Steele v. Louisville € N.R.R., 323 US
192 (1944) (duty to avoid racial discrimination in-
ferred from duty of representation in Railway Labor
81 Jd. at 534 (footnote omitted). The dissenting Justices in
WDAY agreed that, ‘The Federal Communications Commission has
determined that to fulfill this congressional command [‘‘ public con-
venience, interest or necessity’’ in § 307] stations must carry some
political broad > 960 U.S. at 544 (dissenting opinion). Ac-
cord, Obligation of Licensee To Carry Political Broadcasts, 25
P. & F. Rapio Rea. 1731, 1735 (1963). See also John P. Crommelin,
19 P. & F. Rapro Ree. 1393 (1960), stating that the statute was not»
3. violated by a refusal to sell time to candidates for one public office
because of lack of interest by the public, when time was sold to
candidates for other offices.
In 1959, with this history before it, Congress amended § 315
of the Act to eliminate the equal-time rule for bona fide news
broadeasts. The amendment was not intended to ‘‘diminish or
affect in any way the Federal Communications Commission policy.”
S. Rep. No. 562, 86th Cong., Ist Sess 13 (1959). See also FR.
Rep. No. 1069, 86th Cong., Ist Sess. 5 (1959). The long-standing
recognition that the public interest requirement superseded even
the express language of § 315(a) respecting candidates was codi-
‘fied in the 1972 legislation which specifically stated that licensees
may not adopt a policy of refusing to sell time to political candi-
dates. See P.L. 92-225, 86 Stat. 3, § 103(a)(2) (1972).
—
27
Act) ; Mitchell v. United States, 313 U.S. 80 (1941)
(racial segregation by railroad held to violate Inter-
state Commerce Act’s prohibition of ‘‘undue or unrea-
sonable prejudice or disadvantage’’). The holdings of
the Commission from the first decade of interpreting
the ‘‘public interest’? mandate of the Act are entitled
to respect, particularly when this ‘original reading of
Congress’ intent enhances the exercise of rights pro-
tected by the First Amendment. For the ‘*publie in-
terest standard of the Act necessarily implies reference
to the First Amendment’s goals.’*? The Commission’s
attempt in the present case to overturn its previously
established rule can only serve as an example of regu-
latory inconstancy which, when the right of free speech
is thereby jeopardized, this Court cannot tolerate.”
B. The Communications Act Forbids Interference
With the Right of Free Speech.
The Commission’s previously established interpre-
tation of the ‘“‘publie interest”? requirement is but-
tressed by section 326 of the Communications Act,
which forbids the Federal Communications Commis-
sion to ‘‘promulgate or fix’’ any “‘regulation or condi-
tion . . . which shall interfere with the right of free
speech by means of radio communication.’™ The
origins and history of § 326 show'that it was a statutory
commitment to a system of broadcasting consistent
* Red Lion, supra 395 U.S. at 390. The broad objectives of the
Act were recently reiterated in United States v. Midwest Video
Corp., 406 U.S. 649 (1972) ; see also United States v. Southwestern
Cable Co., 392 U.S. 157 (1968).
* Cf. Friendly, The Federal Administrative Agencies: The Need
for Better Definition of Standards, 75 Harv. L. Rev. 863 (1962).
* 47 U.S.C. § 326.
i PTET RD a Y
a
28
with the First Amendment, one free from censorship
of ideas because they are controversial.
The Communications Act of 1934 had its beginning
in the Radio Act of 1927,*° and with respect to radio
broadeasting policy was “‘largely a rewriting”’ of the
earlier law.** Secretary of Commerce Herbert Hoover,
whose Department had attempted to regulate broad-
casting before the Radio Act, had testified:
‘‘We can not allow any single person or group to
place themselves in position where they can censor
the material which shall be broadcasted to the
public, nor do I believe that the Government should
ever be placed in the position of censoring this
material.’’
His warning was in the minds of the members of
Congress who wrote the Radio Act.
The issue of broadcast licensees attempting to bar
certain views from access to the air was raised by Rep-
resentative Davis, who believed the House bill was not
explicit enough on the subject:
‘‘A question was asked by the gentleman from
New York [Mr. LaGuardia] about censorship,
whether there was anything in this bill permitting
Government censorship.
85 44 Stat. 1162, ch. 169.
86 FCC vy. Pottsville Broadcasting Co., 309 U.S. 134, 137 (1940).
81 Hearings on H.R. 7357 Before the Committee on the Merchant
Marine and Fisheries, House of Representatives, 68th Cong., 2d
Sess. 8 (1924).
88 See, ¢.g., 68 Cong. Rec. 2571 (1927) ; 67 id. 5484 (1926).
ough ene Sian?
29
“The answer was no; and I am not in favor of
that, but I am even more opposed to private cen-
sorship over what American citizens may broad-
cast to other American citizens. [Applause.]’’ ®
However, the broadcasters had argued that they
- needed to protect themselves by screening statements
in advance for possibly defamatory material for which
they might be held liable, material not itself protected
by the First Amendment. Congressman Davis was
reassured that such limited review was to be the only
kind of private censorship permitted to broadcasters:
‘The only thing they do, as I understand it, is to
see to it that nothing that is slanderous or seditious
is put out over the radio.... [A] they did with
any manuscript that came in was simply to edit it,
and if it was such an article that could properly
appear in a newspaper, they broadcast it, and if it
was not an article that would be proper to put in
a newspaper, they gid not broadcast it .... [T]hey
simply want to edit the manuscript to see it is not
slanderous or seditious.’’ *
With that understanding, Section 29 of the Radio
Act was enacted.
* 67 Cona. Rec. 5484 (1926).
“Cf. Sorensen v. Wood, 123 Neb. 348, 243 N.W. 82 (1932),
eppeal dismissed sub nom. KFAB Broadcasting Co. v. Sorensen,
290 U.S. 599 (1933), discussed in Farmers Educ. & Coop. Union
. WDAY, Inc., 360 U.S. 525, 528 n.2 (1959).
*' 67 Cona. Rec. at 5491 (remarks of Mr. Free). Such appears
to be in essence the sort of limited review applied by broadcast
leensees to announcements today, if the announcements are com-
nercial. See Center for Law and Social Policy, 23 P. & F. Rapio
Ree. 2d 187, 188 (1971), quoted in Brief for the United States
amd the Federal Communications Commission 51 n.44.
——
In 1934 when the Communications Act was passed
the members of Congress again emphasized their inten-
tion to preserve the public’s right of free speech. Rep-
resentative Rayburn, manager in the House, reported
that § 29 had been carried forward in § 326 of the new
act.? When a Representative complained that a Sena-
tor had not been allowed to speak on the radio, he was
assured that, while subject to the licensees’ right to
remove slanderous materials,
“Section 29 is really the Magna Carta of the whole
procedure and covers generally the complaints
that have been made here today with regard to
the freedom of the air.’
The Commission has also recognized that the free
speech provision of §326 expresses an affirmative
policy that the people not be totally denied access to
their airwaves whether by the Government, or by the
Government’s licensees :
‘‘Section 326 of the act provides that this control
of the United States shall not result in any impair-
ment of the right of free speech by means of such
radio communications. It would be inconsistent
with these express provisions of the act to assert
that, while it is the purpose of the act to maintain
the control of the United States over radio chan-
nels, but free from any regulation or condition
which interferes with the right of free speech,
nevertheless persons who are granted limited
rights to be licensees of radio stations . . . may
themselves make radio unavailable as a medium of
free speech.’
In Linn v. United Plant Guard Workers, 383 U.S. 53
(1966), this Court held that the National Labor Rela-
$0
4278 Cona Rec. 10313, 10988 (1934).
4878 Conc. Reo. 1032 (1934) (remarks of Mr. McGugin) ; see
also id. at 10329 (remarks of Mr. Culkin). ei
— by Broadcast Licensees, 13 F.C.C. 1246, 1248
eee
31
tions Act must be interpreted as incorporating the
standards of the First Amendment. See 383 U.S. at 65.
Such a construction is all the more appropriate where,
as here, the Congress, in the basic federal statute deal-
ing with communications, has explicitly referred to the
Oonstitution by adopting constitutional language—
“the right of free speech’’—as the statutory standard.“
And when the question is one not of telephone rates or
channel interferences, but rather of free speech, no
administrative body has more expertise than this
Court.“
C. Congress Had No Intention, in Excluding Broadcast Licen-
sees from the Traditional Category of Common Carriers
for Hire, To Exempt the System of Broadcasting Regula-
tion from Public Interest and Free Speech Requirements.
Petitioners argue that public interest and free speech
considerations are irrelevant because Congress in the
definitional section of the Communications Act did not
classify broadcast licensees as ‘“‘common carriers.”? See
47 U.S.C. § 153(h). But the DNC is not arguing, and
the court below specifically did not hold, that licensees
are “‘common carriers.’ *7 To refrain from totally re-
fusing to sell any time for discussion of public issues
does not make one a ‘‘common carrier.” And when
that phrase is placed in the context of the Communica-
tions Act as drafted, it is seen that Congress did not
regard it as detracting from the statutorily imposed
responsibilities of broadcast licensees.
The phrase ‘‘common earrier”’ appears in the Inter-
state Commerce Act,** which as amended prior to 1927
vested in the Interstate Commerce Commission juris-
*° See 67 Cong. REc. 5480 ( 1226) (remarks of Mr. White) ; Red
Lion, supra, 395 U.S. at 389-90.
*6 See New York Times Co, v. Sullivan, supra, 376 US. at 285 ;
Pennekamp v. Florida, 328 U.S. 331, 335 (1946).
*"See App. 482.
“49 U.S.C. §1 ef seq.
22
diction to regulate the charges of companies engaged
in wire or radio communication. The phrase was in-
cluded in early drafts of the bill which became the
Radio Act of 1927 for at least two reasons. First, some
Senators apparently were under the impression that
the commerce power of Congress extended only to
regulation of common carriers, or that the phrase com-
mon carrier signified operation in interstate com-
merce.” Secondly, the term recognized the intention of
some that certain aspects of radio broadcasting should
remain subject to the jurisdiction of the Interstate
Commerce Commission even after licensing responsi-
bilities were assigned to the Federal Radio Commis-
sion.”
However, drawbacks to the ‘‘common ecarrier’’ lan-
guage as theretofore applied to railroads, telephones,
and telegraph companies became apparent. Clearly
the doctrines associated with transportation companies
or those engaged in point-to-point transmission of mes-
sages would not perfectly fit licensees whose principal
function was to disseminate broadcasts of entertain-
ment and information. It was also feared that use of
the phrase ‘‘common carrier’’ might turn all or nearly
all the broadcast day over to commercial advertisers or
senders of personal messages, making scheduled pro-
grams impossible and leaving little or nothing for the
public.”
‘‘Tf they are made common carriers, one wishing
to advertise goods, automobiles or any other com-
modity, would have to be served, and the radio
49 See 67 Cona. Rec. 12502 (1926) (remarks of Senator Watson).
50 See 68 Cona. Rec. 2580 (1927) (remarks of Mr. White) : see
also id. 3032 (remarks_of Senator Dill).
51 See 67 Cone Rec. 12356 (1926) (remarks of Senator Fess).
_ mame
33
would be deprived of the incentive which it now
has of getting a certain program which the broad-
casting stations must prepare in advance, in order
to give a regulate entertainment at regular hours,
to comply with the hours in which their licenses
specify they may entertain.’’ °?
Senator Dill agreed that even with respect to discus-
sion of ‘public questions’’ a common carrier provision
would be unwise, since ‘‘they would have to give all
their time to that kind of discussion.” ** The concern
was over total loss of control over program schedules—
not over the recognized public interest responsibility
to provide some time for discussion of public issues,
and certainly not over any time already set aside for
advertising. It was such concerns that led to the 1934
Act’s differentiating the telephone and telegraph com-
panies regulated under Title II of the Act from the
different system of regulation established under Title
III for commercial broadcasting.
oe
267 Cone. Rec. 12504 (1926) (remarks of Senator Broussard).
8 Ibid. (emphasis supplied).
The draftsmen of the Communications Act would have been
surprised at the assertion that by not making broadcasters ‘‘com-
mon carriers’’ forced to accept all commercial advertisements, they
were thereby enacting a regime which barred the airwaves to paid
discussion of public issues and left them entirely to commercial
product advertisements. Congressman Fess stated:
“‘T am disgusted, as I know a great portion of our people
are disgusted, with the pollution of the air for mere com-
mercial purposes.’’ 78 Cone. REC. 8832 (1934).
Congressman White added:
“I have long been a believer, and I believe now, that com-
mercial activities occupy too much of the time and use too
many of the radio facilities of this eountry.”” Jd. at 8845.
34
In short, what Congress said is that a broadcast
licensee is not a telephone company. It is not to be
regulated ‘‘in analogy to the regulation of rail and
other carriers by the Interstate Commerce Commis-
sion.’”’ FCC v. Sanders Bros. Radio Station, 309 US.
470, 474 (1940). The concern of Congress in eliminat-
ing the term ‘‘common carrier’’ was not to undermine
the clearly expressed statutory duty of broadcast li-
censees to serve the public interest. It was not to give
licensees the right to engage in arbitrary conduct. It
was simply to prevent total control by advertisers and
avoid importing to a new medium terminology which
did not suit the intended method by which it was to
serve the public. As the late Professor Chafee noted:
“The context plainly shows this [§153(h)] to
mean a ‘common carrier for hire,’ like a telegraph
company. It has no reference to what we are now
talking a obligation to present all sides
fairly.”’™
Il. THE COMMISSION’S APPROVAL OF AN ARBITRARY AND
ABSOLUTE BAN ON PURCHASE BY A NATIONAL POLIT-
ICAL PARTY OF RADIO AND TELEVISION TIME TO DIS-
CUSS PUBLIC ISSUES VIOLATES THE FIRST AND FIFTH
AMENDMENTS.
In its present=posture, the only issue in this case is
the Commission’s ruling that a total and absolute ban
on political parties’ buying time at full commercial
rates to discuss political matters is consistent with the
Communications Act and the First Amendment. The
Court of Appeals held that an absolute ban could not
stand, and directed the Commission to fashion rules
granting some right of some persons to purchase some
time in some circumstances. It left the Commission
552 Z. CHAFEE, GOVERNMENT AND Mass CoMMUNICATIONS 635
n.75 (1947).
=x:
35
and licensees ‘‘broad latitude to develop ‘reasonable
regulations’ ’’ with ‘‘room for broad exercise of the
broadcasters’ discretion.’’ ©
The petitioners challenge that direction. They make
an extreme ‘‘broadside attack”’ on any right of a party
to purchase any time. The standards for purchase
which might be applied are ‘‘not challenged and not
before us.’? Cf. Times Film Corp. v. City of Chicago,
365 U.S. 43, 50 (1961). Petitioners frame their claim
in sweeping and absolute terms,” By doing so, they
leave this Court little latitude. To the absolute arbi-
trary power for which the licensees contend, the answer
clearly must be, no. Cf. Times Film, supra.
A. An Arbitrary and Absolute Ban on Use by a Political Party
of the Twentieth Century’s Most Effective Public Forum
Cannot Stand If Debate on Public Issues Is To Be “Unin-
hibited, Robust, and Wide-open.”
In Abrams v. United States, 250 U.S. 616 (1919),
Mr. Justice Holmes in dissent sounded what has become
a dominant theme in applying the First Amendment
to the changing problems of the Nation that come be-
fore this Court. [T]he ultimate good desired,’’ he
said, “‘is better reached by free trade in ideas ... the
best test of truth is the power of the thought to get
56 App. 484.
57 The Court below stated that
“The Commission’s and intervenors’ argument might be
somewhat stronger if it were designed to support a par-
tial ban on editorial advertising concerning issues and views
which have in fact been substantially aired on normal pro-
gramming time. The argument is unconvincing, however, in
support of a flat, per se ban on any and all editorial adver-
tisements.’’ App. 471, 482 (emphasis in original: footnote
omitted. )
———=y
36
itself accepted in the competition of the market.”’ 250
U.S. at 630." In New York Times Co. v. Sullwan, 376
U.S. 254, 270 (1964), this Court spoke of this Nation’s
‘profound national commitment to the principle that
debate on public issues should be uninhibited, robust,
and wide-open,” and in Pickering v. Board of Educa-
tion, 391 U.S. 563, 573 (1968), referred to this as ‘‘the
core value of the Free Speech Clause of the First
Amendment.’’™ With respect to radio and television
broadcasting in particular, this Court has held that
‘Tt is the purpose of the First Amendment to preserve
an uninhibited marketplace of ideas in which truth will
ultimately prevail, rather than to contenance monopoli-
zation of that market, whether it be by the Government
itself or a private licensee.’”’ Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 390 (1969).
58 Similarly, Judge Learned Hand noted the Nation’s vital in-
terest in
‘‘the dissemination of news from many different sources with
as many different facets and colors as is possible. That in-
terest is closely akin to, if indeed it is not the same as, the
interest protected by the First Amendment; it presupposes
that right conclusions are more likely to be gathered out of
a multitude of tongues, than through any kind of authoritative
selection. To many this is, and always will be, folly; but we
have staked upon it our all.’’
United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.
1943), aff’d, 326 U.S. 1 (1945). See also Radcliffe, Censors, Sz-
LECTED ESSAYS ON CONSTITUTIONAL Law 1938-1962, 685, 697 (Bar-
rett et al. ed. 1963) ; ‘‘We must stake our future upon fecundity of
ideas.’’
8° Cf. Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis.
J., concurring).
See also, e.y., Mills v. Alabama, 384 U.S. 214, 218 (1966):
Thornhill v. Alabama 310 U.S. 88, 102 (1940) ; see generally Bren-
nan, The Supreme Court and the Meiklejohn Interpretation of the
First Amendment, 79 Harv. L. Rev. 1 (1965); Kalven, The New
York Times Case: A Note on ‘‘The Central Meaning of the First
Amendment,’’ 1964 Sup. Ct. Review 191.
_
Yet the Commission in this case argues for a different
scheme. Under it, broadeast licensees alone are to
determine what public issues the public should be ex-
posed to, and how discussion should be structured. As
CBS benignly puts it, there must be ‘‘intervention of
professional journalists between the event and the pub-
lic.”’® The situation was described with less euphe-
mism by Lord Radcliffe, a gentleman not lacking in
experience with censorship and the media, who listed
“the controllers of radio and television”’ among ‘‘the
real licensors of thought today”’:
37
‘We create great systems for the production and
dissemination of ideas and concentrate in the econ-
trol of them a power that by inertia can easily
defeat the very liberties that are in form beyond
attack. It is in this power that there lies a modern
and effective censorship ; it intervenes between the
public and those who would communicate with it,
and by its tone, by its assessment of comparative
values, and by its courage or its fearfulness about
men and affairs it can profoundly influence ideas
and aspirations.’ *
The networks’ paternalistic scheme for organizing
public discussion overlooks two vital aspects of the
First Amendment’s rather different plan for discussion
of public issues: First, that a rule is not to be tolerated
which ‘‘dampens the vigor and limits the variety of
public debate,’’ New York Times Co. v. Sullivan, supra,
376 U.S. at 279, and that even if one-sided, ‘utterances
honestly believed contribute to the free interchange of
ideas and the ascertainment of truth,’ Garrison v.
Louisiana, 379 U.S. 64, 73 (1964). Secondly, that where
the public’s resources—streets, parks, or airwaves—are
®t App. 57.
Radcliffe, supra un. 58, at 6X5, 6X6, GUS .
oo
/
‘a igedeteaae ti adlas ieee Ng Be Lesa Mase tine RT cae he yey? , wi MOONE ata)
——aay
38
used for discussion, they may not be arbitrarily and
totally denied to responsible speakers by those who
administer the resource.
1. The Public’s First Amendment Right To Be Informed Includes the
Right of Direct Communication With the Proponents of Ideas.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969), this Court unanimously, over the networks’
strenuous objections to the Commission’s fairness doc-
trine, reiterated that the First Amendment protects
‘‘the right of the public to receive suitable access to
social, political, esthetic, moral and other ideas and ex-
periences.”” ‘It is the right of the viewers and
listeners, not the right of the broadcasters, which is
paramount.’’ 395 U.S. at 390.
There was nothing new or remarkable in this holding
that the First Amendment, besides including the right
to distribute information, ‘‘necessarily protects the
right to receive it.’’ Martin v. City of Struthers, 319
U.S. 141, 143 (1943). This Court has protected the
publie’s First Amendment right to be informed on
many occasions, in a variety of contexts.“ The Com-
mission and its licensees all appear to concede the point.
Yet the broadcast licensees seek to vitiate their con-
cession by arguing here, as they did unsuccessfully in
Red Lion, that they can do a better job of presenting
ideas than can the proponents of those views, and can
by their ‘‘intervention’’ between speaker and listener
achieve more ‘‘objectivity and fairness’? (App. 51).
The short answer to that condescending attitude was
$3 See, ¢.g., Stanley v. Georgia, 394 U.S. 556, 567 (1969) ; Time.
Inc. v. Hill, 385 U.S. 374, 388 (1967) ; Griswold v, Connecticut, 381
U.S. 479, 482 (1965) ; Lamont v. Postmaster General, 381 U.S. 301,
307 (1965) ; id. at 308 (Brennan, J., concurring).
as
provided by this Court in Red Lion, quoting Johu
Stuart Mill:
‘Nor is it enough that he should hear the argu-
ments of adversaries from his own teachers, pre-
sented as they state them, and accompanied by
what they offer as refutations. That is not the
way to do justice to the arguments, or bring them
into real contact with his own mind. He must be
able to hear them from persons who actually be-
lieve them; who defend them in earnest, and do ~
their very utmost for them,” “
39
If a public park were often used for meetings, it would
seem bizarre to reject citizens’ requests to schedule a
peaceful speech on it by saying, ‘‘No, you may not give
your speeches, but instead someone else may give them.
for you.’’ Nor would it help to add, ‘Perhaps some
of you may, if we choose, be allowed to say a few words,
under conditions that we choose.’”’ That does not have
the ring of the First Amendment. Yet that is
where the licensees’ logic ultimately leads.
The licensees make the facile assertion that if any-
thing is worth saying to the American people, the licen-
sees see that it gets said, and as fully as it deserves, on
the air.” One wonders that human beings are capable
64 395 U.S. at 392 n.18, quoting J. Mi, ON Lipertry 32 (R. Me-
Callum ed. 1947). The same assumptions, of course, underlie the
adversary procedures of the Anglo-American judicial system. See,
¢.g., E, CHeEatHaM, A LAWYER WHEN NEEDED 4-5 (1963).
* The networks’ assertions Seem to vacillate as to whether they _
claim total discretion only to select all spokesmen and formats, or
to decide which issues the public shall hear as well. Cf. NBC’s ref.
erence to the ‘‘right to determine in the first instance which issues
and which points of view should be broadecast.’’ Brief of Amicus
Curiae ut 15. The confusion is not surprising ; obviously such a line
is almost impossible to draw.
40
of such omniscience and industry.” But in fact, al-
though the licensees’ obligation to serve the public in-
terest requires them to give some coverage of public
issues,” few observers are under any illusions that this
rather vague requirement alone guarantees ‘*robust”’
debate :
‘<'T Jhere is considerable possibility that the broad-
easter will exercise a large amount of self-censor-
ship and try to avoid as much controversy as he
safely can... . It seems doubtful . . . that except
in eases of glaring failure to discuss paramount
issues, the Commission could detect editorial cau-
6 CBS in order ‘‘to demonstrate how fully and fairly issues are
reported towthe public by CBS News’’ attached a minute-and-sec-
ond compendium of its principal evening news program ’s coverage
of two’major issues, the Indochina War and domestic reaction and
protest, for March, April, and May, 1970. See App. 53. These
tirures show that during that period of intense war-related activ-
ity, CBS devoted to overall coverage of the war, Congressional and
official reaction, and domestic protest, diplomatic negotiations, and
the My Lai massacre} a combined total of 3 minutes and 55 seconds
each evening in March 1970, and 4 minutes and 59 seconds in April
1970. (App. 82-108). In May, the month that saw the Cambodian
incursion, the Kent State tragedy, and widespread campus riots,
the combined average rose to 8 minutes and 6 seconds, the longest
single item being a 10% minute reply by CBS to charges that it
had falsified a story. (App. 109-128, 123.) In addition, CBS
stated that commentator Eric Sevareid gave views averaging about
21% minutes in length on matters in some way related to Indochina
on 16 of the 92 days in question, once ‘‘on two foreign crisis areas
_ . . with emphasis on Trinidad.’’ (App. 129-30.) CBS in the
same period broadcast two Presidential addresses, to which it ap-
pended 11:16 and 18:24 minutes respectively of analysis by CBS
reporters (App. 131, 133-136), and three news specials, two of
them on college riots (App. 139-149); Mike Wallace interviewed
Walter Hickel (20:30), John Mitchell (1:00), and Seymour Hersh
(12:18) (App. 160); and guests on ‘‘Face the Nation’’ over the
fourteen-Sunday period addressed all these subjects for an aver-
age of 10 minutes and 10 seconds per broadcast (App. 165-169).
8 See Applicability of the Fairness Doctrine in the Handling of
Controversial Issues of Public Importance, 40 F.C.C. 598 ( 1964).
mowse pene swine
41
tiou. The rather unrealistic assumption that the
Commission can deal successfully with editorial
caution is... evidence of wishful thinking.’’ *
Nor is it simply a question of giving adequate cover-
age to what is newsworthy. At stake is the ability to
bring new or unperceived issues to the attention of the
American people, without having to resort to sit-ins,
street demonstrations, or other disruptive or violent ac-
tivities which may be more likely to draw television
coverage.
This Court has recognized the importance in our
communications system of editorial advertisements,
calling them ‘‘an important outlet for the promulga-
tion of information and ideas by persons who do not
themselves have access to publishing facilities—who
wish to exercise their freedom of the press even though
they are not members of the press.” New York Times
Vo. v. Sullivan, 376 U.S. 254, 266 (1964). And as the
court below recognized :
*** Viewpoints’ cannot be so neatly and infallibly
catalogued as the Commission would have us be-
lieve. Self-expression and public debate are much
more subtle phenomena; matters of style and in-
tensity of feeling are important components.’’ ©
Accord, Lee v. Board of Regents, 306 F. Supp. 1097,
1101 (W.D. Wis. 1969), aff’d, 441 F.2d 1257 (7th Cir.
1971) ; Zucker v. Panitz, 299 F. Supp. 102 (S.D.N-Y.
1969).
There is also the simple matter of accuracy. Even if
oue could accept the paternalistic theory of the net-
Jaffe, The Editoria/ Responsibility of the Broadcaster: Re-
fections on Fairness and Access, 85 Harv. L. REv. 768, 773-4 n.26
(1972).
® App. 472 (footnote omitted :.
PEPE IP Ot REO rs eae Wrens oy Wx Sree
works, experience has shown time and again that
they are not always dependable parents, and that it is
safer for people who believe ideas to express them in
their own way than to rely on the ‘‘intervention . . . of
professional journalists.’”? For example, in Complaint
Concerning the CBS Program “‘The Selling of the
Pentagon,’ 30 F.C.C.2d 150 (1970), whatever one’s
opinions on the underlying subject matter, the Commis-
sion unanimously found that the licensees had shown
views which might have appeared decidedly differently
without their ‘‘intervention”’ :”
’ “Ag far as the viewer could tell—and neither
Colonel MacNeil nor CBS made it clear—the
70‘«This is what the viewers of the CBS documentary were
shown as a single exchange :
Roger Mupp: What about your public displays of military
equipment at state fairs and shopping centers? What pur-
pose does that serve?
Mr. HENKIN: Well, I think it serves the purpose of in-
forming the public about their armed forces. I believe the
American public has the right to request information
about the armed forces, to have speakers come before
them, to ask questions, and to understand the need for our
armed forces, why we ask for the funds that we do ask
for, how we spend these funds, what we are doing about
such problems as drugs—and we do have a drug problem
in the armed forces, what we are doing about the racial
problem—and we do have a racial problem. I think the
public has a valid right to ask us these questions.
‘‘This, on the other hand, is how Mr. Henkin actually answered
the question cited above :
Mr. HENKIN: Well, I think it serves the purpose of in-
forming the public about their armed forces. [This is the
only sentence that was retained intact in the answer as
broadcast.| It also has the ancillary benefit, I would hope,
of stimulating interest in recruiting as we move or try to
move to zero draft calls and increased reliance on volun-
teers for our armed forces. I think it is very important
that the American youth have an opportunity to learn
—
43
speaker seemed to be affirming the ‘domino theory’
as applied to Southeast Asian nations under Com-
munist pressure, although as the printed transcript
shows he was in fact quoting the Prime Minister
of Laos to this effect.”’ 30 F.0.0.2d at 151.
‘The other aspect of principal controversy cdn-
cerns an interview between Mr. Henkin [ Assistant
Secretary of Defense] and Mr. Mudd [CBS re-
porter]. In it, some portions of Mr. Henkin’s
about the armed forces. [Both the latter sentences were
dropped entirely. |
‘“‘The answer Mr. Henkin was shown to be giving had in fact
been transposed from his answer to another and later question
that dealt not only with military displays but also with the
availability of military speakers. At that later point in the
interview, Mr. Mudd asked Mr. Henkin whether such things
as drug and racial problems constituted ‘the sort of informa-
tion that gets passed out at state fairs by sergeants who are
standing next to rockets.’
“‘Mr. Henkin replied as follows:
Mr. HENxKIN: No, I didn’t—wouldn’t limit that to ser-
geants standing next to any kind of exhibits. I knew—I
thought we were discussing speeches and all.
“But this is how the sequence was shown over the air:
Mr. Mupp: Well, is that the sort of information about the
drug problem you have and the racial problem you have
and the budget problems you have—is that the sort of in-
formation that gets passed out at state fairs by sergeants
who are standing next to rockets?
Mr. HENKIN: No. I wouldn’t limit that to sergeants stand-
ing next to any kind of exhibits. Now, there are those
= contend that this is propaganda. I do not agree with
this.
‘‘The second sentence of Mr. Henkin’s actual answer—the part
about ‘speeches and-alt=had been omitted. And the ‘new’ ma-
terial—about propaganda—came from an earlier point in the
interview and was in fact a reference to charges that the
Pentagon was using talk of an ‘increasing Soviet threat’ as
propaganda to influence the size of the military budget.’’
30 F.C.C. at 151-52 (inserted comments and emphasis in original)
(footnote omitted).
ee.
44
answers were cut; and what appeared as answers
to particular questions were in fact rearranged
from answers to quite different questions. Jbid.’™
The Commission, respecting the ‘‘journalistie func-
tions” of ‘‘selection and editorial judgment’’ has re-
fused ‘‘to lay down some precise line of factual ac-
euracy.’’ Complaint Concerning the CBS Program
“The Selling of the Pentagon,’’ supra, 30 F.C.C.2d at
152. The deference of the Commission to the licensees
in this respect reflects the First Amendment’s policy
against censoring the statements and opinions which
reach the public. But there is a complementary aspect
of that policy : it assumes that error will be caught and
corrected because there is to be a multitude of voices,
‘‘a marketplace of ideas in which the truth will ulti-
mately prevail.’? Red Lion, supra, 395 US. at 390.
‘Remission of the public to the marketplace of ideas
necessarily presupposes that the market exists. There
cannot be ‘“‘monopolization of that market, whether it
be by the Government itself or a private licensee.”
Red Lion, supra, 395 U.S. at 390. The very need to
avoid governmental censorship of program content im-
plies that other sources of information shall have some
opportunity, at their own expense, to speak directly to
the public on important matters as they see them.
The good faith of the broadcast licensees and their
employees is not the question. The DNC does not chal-
lenge it. No doubt CBS, ABC, and NBC sincerely be-
1 See also Complaints Covering CBS Program ‘‘Hunger in
America,’’ 20 F.C.C. 2d 148, 147 (1969) (‘‘CBS nevertheless en-
gaged in sloppy journalism or was recklessly indifferent to the
truth in not ascertaining the cause of death of the Wright baby’’
—infant shown as dying of malnutrition who actually died of
complications from prematurity) ; Complaints Concerning Network
Coverage of the Democratic National Convention, 16 F.C.C. 2d 650
(1969).
mee ee:
—
lieve that they are the best judges of what the public
should see and hear every minute of every day. What
the DNC contends is that the unparalleled power for
which the networks argue cannot safely be lodged with
anyone:
45
“(T]he prospect is the somewhat menacing one
that the way will simply be barred to the adven-
turous and the heterodox. It will not be barred
by censorship as historically understood, it will
not be barred by law: if it is barred it will be
barred by a general average opinion imputed to the
public, ‘very likely quite erroneously, by a number
of respectable gentlemen who will neither know
nor want to know better.’’ ”
Functionally, in a limited medium, censorship is cen-
sorship, whether administered by government or by a
few licensees.
Apparently recognizing that a constitutional com-
pulsion for permitting discussion exists, the broadcast
licensees now argue that the fairness doctrine (which
they previously said was unnecessary and unconstitu-
tional) is the whole answer. It is not and never been
thought to be.” It is not enough to rely on the broad-
cast licensees as Platonic Guardians to decide for every
™ Radcliffe, supra note 58, at 697.
73
‘*Both the Supreme Court, this court, and the Commission itself
have all recognized that the fairness doctrine is not an island
whole unto itself. It is merely one aspect of the Commission’s
implementation of the requirement that broadcasting stations
serve the public ‘interest, convenience, and necessity’ . . .
[T]he Commission has upon occasion recognized that time,
rather than information, is of the essence.’
Retail Store Employces Union, Local 880 y. FCC, 436 F.2d 248, 257
(D.C. Cir. 1970) (directing F.C.C. to hold hearing before renewing
license of broadcaster which had refused to sell time to union).
"
——
46
minute what issues shall reach the public, who shall
present them, and how they shall be shown.” If ‘‘su-
pervised and ordained discussion’’ is less than the First
Amendment intends for schoolchildren, Tinker v. Des
Moines Independent Community School Dist., 393 U.S.
503, 513 (1969), then surely it also is less than is re-
quired for the viewing and listening public.
2. The First Amendment Forbids an Arbitrary and Total Barring of
Paid Political Broadcasts from a Forum Which Belongs to the
Public, Is Dedicated Purely To Communication, and Is Probably
the Most Effective Medium for Influencing Public Opinion.
Approximately 95% of American homes—nearly 60
million households—contain at least one television set,
and that set is turned on for an average of more than
five and one-half hours each day. The average adult
American spends more time watching television than
in any activity except sleeping and working, and looks
to it and radio as his major source of most news.” As
a House report noted:
‘¢ , . the [television] medium—for whatever rea-
son—has become the public’s prime source of in-
74 Even if the licensees were competent to perform this task,
doubts as to their performance would always be present, doubts
which do not enhance public confidence and national stability. Cf.
Columbia Broadcasting System, Inc., 17 P. & F. Rapio Ree. 2d 843
(1969) (insufficient evidence of staging of news events) ; for one
author’s view, see E. ErroN, THE NEws Twisters (1971).
7 Hearings on H.R. 13721 Before the Subcommittee on Com-
munications and Power, Committce on Interstate and Foreign
Commerce, House of Representatives, 91st Cong., 2d Sess., p.7
(1970) (statement of Dean Burch, Chairman, Federal Communica-
tions Commission). Recent surveys concluded that 67% of the
populace prefers the electronic media to other sources of informa-
tion. Roper Research Survey, quoted in G. Wyckorr, THE IMAGE
CanpipaTes 13-14 (1968). An estimated 59% depend on television
as their principal source of news. See Amendment of Sections
73.35, 73.240, and 73.636 of the Commission’s Rules, 22 F.C.C.2d
339, 344 (1970).
—
formation. It is this fact which determines its
influence. In advancing to the stage of impor-
tance, broadcasting has in many ways supplanted
the other media of mass communication.” “
In the United States in the final third of the Twentieth
Century, television is the political forum par excel-
lence.
There is considerable evidence that the electorate is
deeply influenced by telecasts on public issues. For
example, many commentators have concluded that the
televised debates between the 1960 Presidential can-
didates of the two major political parties—witnessed
by more than 115 million Americans—were the decisive
factor in that election.” According to the Harris poll,
prior to President Nixon’s television address on April
30, 1970, concerning the crossing into Cambodia, only
7% of the nation approved such action; following his
address, more than 50% approved. Before President
Johnson’s speech on the Gulf of Tonkin incident, less
than half of the electorate approved of his Vietnam
7 H.R. Rep. No. 91-257, 91st Cong., Ist Sess. 6 (1969). ABC
agrees as to:
“‘the critical role the broadcast media play in keeping con-
temporary American society adequately informed on impor-
tant public issues. That broadcasting in general and electronic
journalism in particular have become major sources of infor-
mation to the American public is, therefore, an undeniable
threshold premise.’’
Brief for Petitioner American Broadcasting Companies, Inc. at 18.
See generally J. Kuaprer, Tae EFrects or Mass CoMMUNICATION
(1960).
™ See, e.g., T. Warre, Taz Makino OF THE PRESIDENT 1960,
pov (1961) ; K. Lane & G. Lana, Pourrics anp TELEVISION 213
1968).
— Ta i tag i rer ne
——
48
policy ; after the speech, more than 70% of the public
endorsed his program.” Those whose own interests are
at stake believe television and radio are important, and
they act accordingly.” Courts have recognized ‘“‘the
infinite potential of television to influence American
a.”
The broadcasting spectrum is a public resource, pub-
licly developed. Where a publicly owned resource is
a reasonably appropriate forum for communications,
a total ban on use of that resource for communication
of ideas violates the First Amendnient. See, e.g.,
Grayned v. City of Rockford, 40 U.S.L. WEEK 4881,
4884 (U.S. June 26, 1972), quoting Hague v. CIO, 307
U.S. 496, 515 (1939) (opinion announcing judgment)."
In a case involving public property used primarily for
781, Harris, President’s Using TV Helps, Cuicaco TRIBUNE,
Sept. 3, 1970.
7 Cf., e.g.. J. McGinnis, THE SELLING OF THE PRESIDENT 1968
(1969). The United States Government, indeed, believed television
and radio so effective that it spent $10.6 million for broadcasting
U.S. Army recruiting advertising in one thirteen-week period in
1971. See Army Enlists Ayer for Ad Blitz, Broapcastina, Feb. 22,
1971, p. 38. The Senate has added a rider to the FY 1973 Depart-
ment of Defense Procurement Authorization bill specifically author-
izing purchase of radio and television time. See 118 Cona. Rec.
$11605 (daily ed. July 24, 1972).
8 Office of Communication of United Church of Christ v. FCC,
425 F.2d 543, 548 (D.C. Cir. 1969) (Burger, J.). ‘‘[T]echnology
has immeasurably increased the powers of the press to do both
good and evil . . . [The task is one of] implementing the First
Amendment by assuring the effective communication which is es-
sential to the continued functioning of our free society.’’ Rosen-
bloom v. Metromedia, Inc., 403 U.S. 29, 60 (1971) (opinion of
White, J.).
81See also Shuttlesworth vy. Birmingham, 394 U.S. 147, 152
(1969) ; Kunz v. New York, 340 U.S. 290, 293 (1951) ; Cf. L. Mum-
rorD, THE City in History 148-150 (1961) (Athenian agora) ;
wee :
purposes other than communication—streets, parks,
and sidewalks—the task is to weigh the interest of
citizens in using it for that purpose under reasonable
regulation, against possible interference with the prop-
erty’s principal use. Compare Coz v. Louisiana, 379
U.S. 536 (1965), and Coz v. Louisiana, 375 U.S. 559
(1965), and Brown v. Louisiana, 383 U.S. 131 (1966),
with Adderley v. Florida, 385 U.S. 39 (1966.° In the
| present case, such a conflict does not exist. For un-
like a street, used principally for travel, or a park,
used principally for recreation, the standard broadcast
frequencies are public domain used principally for
communication with the public—indeed, by decision of
Congress they have no other use.
Even where the property involved is not public, in
certain circumstances the interest in communication on
public issues may override the‘ordinary property rights
of the owner, when no suitable alternative method of
communication is available. As one writer put it, in some
cases there may be ‘‘a First Amendment easement,’
id. at 221-227 (Roman forum). Although it was once said that
municipal property could be used for communication only at the
sufferance of the state, Davis v. Massachusetts, 167 U.S. 43, 48
(1897), on reconsidering the requirements of the First Amendment
that notion that speakers could be absolutely banned from public
property suited for speaking was ‘ ‘directly rejected by this Court,’’
Jamison v. Texas, 318 U.S. 413, 418 (1943).
8 See also Niemotko v. Maryland, 340 U.S. 268, 276 (1951). The
Court of Appeals recognized the need to resolve competing interests
when it said that the right not to be totally barred from purchase
of time on the public airwaves was “‘abridgeable’’—i.c., that it was
not absolute, and was subject to reasonable regulation. See App.
467.
* Kalven, The Concept of the Public Forum: Coz v. Louisiana,
1965 Sup. Cr. Review 1,13. See, e.g., Marsh v. Alabama, 326 U.S.
501 (1946) ; Amalgamated Food Employees Union vy. Logan Valley
Plaza, Inc., 391 U.S. 308 (1968).
50 ‘
Lloyd Corp. v. Tanner, 40 U.S.L. Wrex 4829 (U.S.
June 22, 1972), shows that even if the airwaves were
privately owned, a reasonable right of access for speech
would be required. In Lloyd a group sought free use
of a privately owned shopping center to distribute hand-
bills on a subject unrelated to the property’s use. A
lower court ordered the shopping center owner to allow
‘tall non-commercial handbilling which anyone desires
to undertake within its private premises.” * This Court
listed as relevant whether such a use would have any
“relation to any purpose for which [the privately
owned property] ... was built and being used; whether
the property owner was performing functions ‘‘as a
delegate of the State;”’ whether there were ‘‘adequate
alternative avenues of communication;’’ and whether
the constitutional provisions against taking of property
without due process of law or without just compensa-
tion could be adequately accommodated.® This Court in
Lloyd found that the function of the property was sales,
that adequate alternative places of communication ex-
isted, and that the asserted right was inconsistent with
the private property’s legitimate function. Clearly, by
that analysis, communication is to be permitted where,
unlike Lloyd, no right to use it in all situations is as-
serted, and where the property is the public’s; it is ad-
ministered by the Government’s licensee; it ‘has no
function other than communication ; the DNC is willing
to pay; and no private property rights are compro-
mised.
This Court in Lloyd reiterated that _
“it has often been held that publicly owned streets,
sidewalks and parks are so historically associated
* 40 U.S.L. WEEK at 4833 n.11 (emphasis supplied).
85 Td. at 4833, 4835, 4834.
- :
with the exercise of First Amendment rights that
access to them for purposes of exercising such
rights cannot be denied absolutely.’’ *
No park, street or sidewalk is more important to com-
munication in 1972 than the two or three network
television channels in each of our major cities, or the
radio stations which speak to the commuter. In no
park, street or sidewalk is the public’s Congressionally
recognized interest in communication greater. For the
public’s airwaves or a city’s streets, ‘‘access to them
for purposes of exercising such rights cannot be denied
absolutely.’’ Lloyd Corp. v. Tanner, supra.
3. The Unique Characteristics of Publicly-Licensed Broadcasting
_ Imply Corresponding Unique Obligations.
This case does not involve any medium other than
the licensed broadcast frequencies. Broadcasting has
long been recognized as unique, with characteristics
which set it apart from newspapers, magazines, bill-
boards, handbills, and all the other communications
media.. As Professor Chafee put it, “the [ First]
Amendment necessarily works out differently for radio
simply because radio is different.’’ *”
—Broadcasting is conducted by using a scarce pub-
lie resource.* And unlike other public property, the
86 Td. at 4832.
872 Z. CHAFEE, GOVERNMENT AND Mass COMMUNICATIONS 638
(1947) (emphasis in original).
88 See 47 U.S.C. § 301. Although some who advocate more secur-
ity for licensees from renewal challenges seek to dismiss the pub-
lic’s dominion of the airwaves as an “‘irrelevance,”’ see Jaffe, We
Need the Pastore Bill, New REPUBLIC, Dec. 6, 1969, p. 15, there re-
mains an inescapable public concern for the use of the broadcast
frequencies which does not, and indeed should not, obtain in a
medium which was not public in its beginning and continued exist-
2 a
broadcast channels are not simply owned. They were
actually created by federal action, out of chaos and
‘“cacaphony.’’ Red Lion, supra, 395 U.S. at 376. They
are not public property incidentally rented out. Their
use unavoidably involves their entire reason for being:
to serve public interest in conimunication :”
—Licensees enjoy what one sympathetic observer
called ‘‘a spectacular subsidy.”’*” They are given, free
of charge, the exclusive, use of a precious and limited
public resource. Licensves occupy, as this Court noted |
in Red Lion, ‘‘a preferred position conferred by the
Government.’’ **
—Licensees must comply with extensive federal
regulation covering all aspects of the service they pro-
vide the public, a regulation so pervasive that the Com-
52
8 Through a curious constitutional tour de force, the intervening
networks apparently have concluded that although access for non-
commercial messages may be constitutionally required for trans-
portation and recreation property like busses and parks, it is not
required for licensed broadcast channels. See Brief for Petitioner
American Broadcasting Companies, Inc. at 24; Brief for Petitioner
Columbia Broadcasting System, Inc. at 24. The Commission also
seems to imply that because the obligations of broadcast licensees
to promote free speech are greater, their obligations to provide
time to speakers are less. Brief for United States and Federal
Communications Commission at 48 n.41.
% Kalven, Broadcasting, Public Policy and the First Amend-
ment, 10 J. Law & Econ. 15, 31 (1967). The characterization was
contained in a memorandum prepared for CBS. The limited mail-
ing rate subsidies enjoyed by printed periodicals until recently re- .
duced did not approach in value or pervasiveness the benefits con-
ferred on broadcast licensees; nor has the press ever been subject
to the special and detailed regulation which for broadcast licensees
is unavoidable. See National Broadcasting Co. v. United States,
supra.
91 395 U.S. at 400. Returns on tangible investment for broadcast
licensees in excess of 100% annually are not uncommon. See
F. FrrenpLy, Due ro CircuMSTANCEs BEYOND Our ConTROL 275-76
(1967).
53
mission has concluded that constitutional restrictions
may have to be applied even to licensees’ employment
practices.”
—Because the number of frequencies is limited,
broadcasting is ‘‘a medium not open to all’’ to exploit
for profit.”
From these long-recognized distinctive features—
public resource, preferred treatment, close government-
al regulation, and physically limited number of fre-
quencies—this Court has reasoned that broadcasting is
constitutionally ‘‘a unique medium.” ™ ‘Differences in
the characteristics of new media justify differences in
the First Amendment standards applied to them.” ®
_ Beyond these, broadcasting as it has in fact devel-
oped shows other peculiarities which influence its role
in public debate:
—Unlike printed media, the broadcast licensee’s
economic interest lies in minimizing, rather than in-
creasing, coverage of ideas which are not of lowest-
common-denominator mass appeal. A newspaper sells
space, and the more features of interest to some group
See Petition for Rulemaking To Require Broadcast Licensees
To Show Nondiscrimination in Their Employment Practices, 18
F.C.C.2d 240, 241 n.2 (1969) ; p. 74, infra.
* Red Lion, supra, 395 U.S. at 392. The statement that ‘‘unlike
other modes of expression, radio is not available to all,’’ National
Broadcasting Co. v. United States, supra, 319 U.S. at 226, which
the networks quote out of context, of course refers to the fact that
broadcast licenses are limited in number, and broadcast licensees
therefore are especially favored. The NBC opinion pointed this out
_ by way of explaining the unique responsibilities which accordingly
are imposed on licensees.
™ Red Lion, supra, 395 U.S. at 390.
Td. at 386 (footnote omitted) ; see also Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 503 (1952).
. os
BS EO OE SS UI AA BE RTI HA SY IC, Sb EOD ATE LI EMR NR ar: se gi Yorreaney
o4
it can add, the more copies it will sell. Television, how-
ever, sells time, and there is no way to add one feature
without subtracting from time devoted to another. Each
licensee seeks to maximize its audience at every mo-
ment. Hence the economic motivation of the networks
is to avoid as much as possible showing anything that
might not appeal to nearly every part of the audience.”
—Increasingly, as the court below recognized,”
“Stelevision and radio are the only truly mass media of
gommunication in our society. Newspapers generally
serve only a single metropolitan area. National maga-
zines of generai readership have found increasingly
that a mass audience for them does not exist. Some,
like Colliers, Look, and the Saturday Evening Post
have gone out of business ; others, like Life, have inten-
tionally sought to recuce their circulation to reach a
more specialized audience; others, like the Saturday
Review, have attempted to split into several publica-
tions, each of. more limited appeal. Increasingly the
role of the printed press is localized or specialized. The
closest one is able to come to assembling or speaking to
the citizens of this country today, is to address them by
television.
4
6 See generally F. FRIENDLY, supra n. 91, at 212-300. A CBS
executive responsible for program decisions said frankly that his
policy is to choose ‘‘not programs that he thinks people will neces-
sarily like, or benefit from, or be enriched by, but programs he
thinks people will watch.’? Thompson, The Crapshoot for Half a
Billion, Lirg, Sept. 10, 1971, p. 47 (emphasis in original). See
also Coase, Evaluation of Public Policy Relating to Radio and.
Television Broadcasting: Social and Economic Issues, 41 J. LAND
AND P.U. Econ. 161 (1965) ; D. Lacy, FREEDOM aNp COMMUNICA-
TIons 69 (1961).
87 App. 464.
RRP REM LELLS TE REL PAID INET PETE ROA OTE OPEN DEF
55
B. The First and Fifth Amendments Forbid a Ban Which Dis-
criminates Absolutely Against Paid Announcements on
Political Subjects and in Favor of Commercial Advertise-
ments,
One of the clearest rules of constitutional law is that
when regulation of communication is permitted, the
Constitution forbids a rule which favors one sort of
speech over another. This Court reaffirmed that rule
in two cases last Term, holding invalid under the Equal
Protection Clause of the Fourteenth Amendment an
ordinance which favored labor picketing over pickets
on other subjects. Police Dept. v. Mosley, 40 U.S.L.
Week 4877 (U.S. June 26, 1972) ; Grayned v. City of
Rockford, 40 U.S.L. WEEK 4881 (U.S. June 26, 1972).*°
The same conclusion—that a public forum eannot
be opened for one subject of discourse and closed to
another—has also been reached in numerous decisions
under the First Amendment.” In Red Lion itself, this
Court noted that if that case had involved “‘a discrimi-
natory refusal to require the licensee to broadcast cer-
tain views which have been denied access to the air-
waves,’’ then such a Commission policy ‘“‘would raise
more serious First Amendment issues.’’ ?”
** Mosley explicitly adopted the rule against speech discrimina- .
tion stated in the concurring opinion in Cor v. Louisiana, 379 U.S.
536, 581 (1965). See 40 U-S.L. WEEK at 4879. This Court has ree-
ognized that the principles of the Equal Protection Clause are im-
plicit in the Due Process Clause of the Fifth Amendment. E.g.,
Bolling v. Sharpe, 347 U.S. 497 (1954).
See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147
(1969) ; Fowler v. Rhode Island, 354 U.S. 67 (1953) ; Niemotko v.
Maryland, 340 U.S. 268, 272-73 (1951). Cf. Flower v. United
States, 407 U.S. 197 (1972).
100 395 U.S. at 396. See also Lloyd Corp. v. Tanner, supra, 40
U.S.L. WEEK at 4831.
~~ cg
56
In the present case, however, discrimination is con-
ceded, as the Commission argues for the asserted right
of its licensees to sell’ broadcast time freely for com-
mercial advertising messages, but to ban it to political
parties seeking to express views on matters of public
concern, even though the political party asks no favors,
and is willing to pay the going commercial rate. Here-
_. tofore this Court has indicated that speech on public
issues is of greater constitutional concern than are
product advertisements. Handbills containing ideas are
constitutionally protected, when handbills with commer-
cial messages are not. Compare Schneider v. State, 308
U.S. 147 (1939), with Valentine v. Chrestensen, 316
US. 52 (1942). Door-to-door solicitation for religious
discussion is protected, when door-to-door solicitation
selling magazine subscriptions is not. Compare Martin
v. City of Struthers, 319 U.S. 141 (1948), with Breard
v. City of Alexandria, 341 U.S. 622 (1951). It does
not disparage the commercial advertising system on
radio and television to suggest that some fraction of
the time for sale be sold for the type of discussion
this Court has held of constitutionally greater signifi-
cance.
What the networks seek is a constitutional inversion.
The argue for an arbitrary and absolute policy barring
political speech, while they sell all the time they reason-
ably can to virtually any hawker of commercial prod-
ucts. One would have assumed that if there were to be
a constitutionally permitted discrimination between
3 political and commercial speech on the licensed broad-
3 cast media, it would favor the political over the com-
mercial. Cf. New York Times Co. v. Sullivan, supra,
101 See also Wirta v. Alameda-Contra Costa Transit Dist., 64 Cal.
Rep. 430, 4384 P.2d 982 (1967).
a a i CRBC BETIS ER OTERO TE ME I LR
57
376 U.S. at 266. Yet the petitioners seek to stand the
First Amendment on its head and give total access to
the sellers of soap, brassieres, deodorants, and mouth-
washes, but none to advocates of 4deas.
C. The First Amendment Forbids a Ban Which, in Barring
Whatever a Licensee Labels “Controversial,” is Both Un-
constitutionally Vague and Overbroad.
The standard which the broadcast licensees pro-
pose to use—‘controversial issues’ ?—to determine
whether they will refuse to sell time is almost ludi-
crous in its-ambiguity. This Court on Many occasions
has invalidated restrictions on speech in which the cen-
soring authorities cited standards less open-ended. The
rule was stated in Shuttlesworth v. City of Birming-
ham, 394 U.S. 147 (1969) :
“‘[A] law subjecting the exercise of First Amend-
ment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards
to guide the licensing authority, is unconstitu-
tional.’
Nor can such a standard be applied in clear-cut fashion.
For example, while BEM has been denied an oppor-
tunity to purchase time for announcements protesting
United States participation in the war, hundreds of
licensees sold millions of dollars worth of time to the
United States Army to persuade young men to enlist
in the infantry.’ In the words of the Supreme Court
of California, striking down a similar restriction:
““A cigarette company is permitted to advertise
the desirability of smoking its brand, but a cancer
102 See, ¢.g., App. 45, 50-51, 297.
68 394 U.S. at 150-151 (footnote omitted).
14 Cf. Green v. FCC, 447 F.2d 323 (D.C. Cir. 1971) (attempt to
obtain free time under fairness doctrine).
>. ;
a,
58
society is not entitled to caution by advertisements
that cigarette smoking is injurious to health. A
theater may advertise a motion picture that por-
trays sex and violence, but the Legion of Decency
has no right to post a message calling for clean
films. A lumber company may advertise its wood
products, but a conservation group cannot implore
citizens to write to the President or Governor
about protecting our natural resources. An oil
refinery may advertise its products, but a citizens’
organization cannot demand enforcement of exist-
ing air pollution statutes.’’ *”°
In an era of consumerism, the ‘‘controversial’’ broad- ,
cast really can be nearly anything. Under the licensees’
proposed policy, it is whatever the licensee wants it to
be. Their asserted power to grant occasional excep-
tions simply intensifies the First Amendment viola-
tion.’”
There is another flaw in the policy which the Com-
mission endorsed: the total ban, instead of regulating
expression in limited fashion to accommodate other
essential social purposes, sweeps out in wholesale fash-
ion any efforts to purchase time to communicate with
the American public on radio and television. On many
occasions this Court has held that restrictions on speech
must be supported by a compelling interest, and must
be narrowly drawn. Where restrictions are tolerated,
the least restrictive means of accommodating speech
105 Wirta v. Alameda-Contra Costa Transit Dist., supra, 434 P.2d
at 986-87.
106 See, e.g., Staub v. City of Baxley, 355 U.S. 313 (1958);
Schneider vy. State, supra; Lovell v. Griffin, 303 U.S. 444 (1938);
cf. Flower v. United States, 407 U.S. 197 (1972). The Commission
itself described the same ban as ‘‘arbitrary’’ insofar as fundraising
broadcasts were concerned, App. 272.
59
activities with other necessary social functions must
be selected.” The total ban the licensees seek is the
most restrictive, far beyond what is required for an
orderly and balanced program schedule.
D. First Amendment Rights of Political Association As Well As
of Speech are Abridged by a Policy Which Totally Bars a
National Political Party from Purchasing Time To Discuss
Public Issues,
Besides guaranteeing the freedom of speech, the
First Amendment preserves ‘the right to band to-
gether for the advancement of political beliefs.’’ 1
This Court has recognized the unique and vital role
which the national political parties play in our system
of government. Cf., e.g., O’Brien v. Brown, 41 U.S.L.
WEEK 4001 (U.S. July 7, 1972). Virtually since the be-
ginning of our constitutional democracy, this Nation
has employed political parties as a necessary adjunct
to the electoral process. A Committee of the Amer-
ican Political Science Association has called them
“indispensable instruments of government.’ As ‘*mo-
bilizers of both democratic consent and democratic dis-
sent,’’° the major parties are ‘‘not therefore merely
appendages of modern government; they are in the
107 See, ¢.g., United States v. Robel, 389 U.S. 258, 265 (1967) ;
NAACP vy. Button, supra, 371 US. at 438 (1963); Shelton y.
Tucker, 364 U.S. 479, 488 (1960) ; cf. Dunn y. Blumstein, 405 U.S.
330, 343 (1972) (voting rights).
108 Hadnott v. Amos, 394 U.S. 358, 364 (1968). See also, ¢.9.,
NAACP vy. Button, supra; NAACP vy. Alabama ex rel. Patterson,
357 U.S. 449 (1957) ; Sweezy v. New Hampshire, 354 U.S. 234,
250-251 (1957).
1° Towarp A More RESPONSIBLE Two Party System 15 ( 1950).
410 F. Soraur, Party Pouitics in AMERICA 23 (1968).
a
60
center of it and play a determinative and creative role
in it.” 111
Talk by political parties is more than just political
talk. It is the catalyst that produces peaceful govern-
mental change. Free political discussion assumes ‘‘that
government may be responsive to the will of the people
and that changes may be obtained by lawful means.”’ '”
The parties ‘‘are perhaps best fitted of all agencies to
convert formless hopes or frustrations into proposals
that can be understood, debated, and, if found appeal-
ing, approved by the people.’’ *”*
4 Today a major political party cannot be barred from
: ‘purchasing time on television, except by arbitrary will
| of the networks, and still fullfill its role. ‘‘ Broadcasting,
and television in particular, has indeed become indis-
pensable to the political process of our nation.’”""* A
party without access to television is a party rendered
partially impotent. ‘‘In a highly communicative world,
access to the communications broadcast resource is
partially equivalent to political power.’’ ”°
Jack 63
111 —, SCHATTSCHNEIDER, Party GOVERNMENT 1 (1942) ; see also
C. Merriam & H. GoSNELL, THE AMERICAN PARTY SYSTEM 1 (1969) ;
J. JAMES, AMERICAN POLITICAL PaRTIEs 39 (1969).
112 Stromberg v. California, 283 U.S. 359, 369 (1931) ; see also
Roth v. United States, 354 U.S. 476, 484 (1957), holding that the
First Amendment ‘‘was fashioned to assure unfettered interchange
of ideas for the bringing about of political and social change de-
sired by the people.’’
is Seach iad pea ns)
Pe eee
, 113 ©, ROSSITER, PARTIES AND Pouitics In AMERICA 50 (1967).
3 114 HR. Rep. No. 91-257, 91st Cong., Ist Sess. 6 (1969) ; see also
S. Rep. No. 91-751, 91st Cong. 3d Sess. 5 (1970); McNem, THE
PEOPLE MACHINE: THE INFLUENCE OF TELEVISION IN AMERICAN
: Pouitics (1968).
115 Baran, On the Impact of the New Communications Media
Upon Social Values, 34 Law & ConTEemP. Pros. 244, 249 (1969).
61
The tasks of a major political party are not limited
to soliciting funds."* They are not confined to the
weeks before an election. When to seek the electorate’s
political and financial support is a judgment which
must be by the party, not by the networks. If the net-
works usurp the parties’ necessary role, the parties and
the political process will be correspondingly weakened.
The alternatives are not attractive to contemplate.
At the least, groups would be encouraged to engage in
sensational or outrageous conduct in order to create
the kind of photogenic “‘happenings”’ which are likely
to be shown on television as ‘‘news.’’ At the worst, sig-
nificant numbers of persons mi ght come to believe them-
selves so closed off from access to peaceful political dis-
cussion that they would opt for violence instead. As
the Court of Appeals for the Second Circuit observed
in invalidating a ban on public issue advertising by the
administrators of a publicly owned bus terminal,
“We should in these times be mindful that to the
extent we secure legitimate and orderly access to
means of communication for all views, "we create
conditions in which there is no incentive to resort
to more disruptive conduct,’? 7
16 Televised appeals for funds have been effective. One appeal
by then Republican Chairman Dean Burch in 1964 produced 70,000
letters and 3500 money orders in three days. See Alexander &
Meyers, The Switch in Cam paign Giving, ForTUNE, November 1965,
p. 212. A handful of network solicitations in 1968 produced nearly
$800,000 for Senator Humphrey. App. 21. The Democratic Party’s
1972 Telethon reportedly has produced pledges of approximately
$5,000,000. Every commission and task force which has studied the
subject has concluded that broadening the base of political con-
tributions, as television can do, is desirable. See, e.g., TWENTIETH
CENTURY FUND, CoMMISSION ON CAMPAIGN Costs In ELECTRONIC
Era, VoTer’s Time 44 (1969). The Commission agrees. Lawrence
M. C. Smith, 25 P. & F. Rapto Rea. 291, 293 (1963).
"7 Wolin v. Port of New York Authority, 392 F.2d 83, 93 (2d
Cir.), cert. denied, 393 U.S. 940 (1968).
a
62
If the DNC were an advertiser demanding time t
sell soapflakes or razor blades, that would be another
case. If the DNC were claiming a right to preempt
any time it wanted for its messages, that would be an-
other case. If the DNC were claiming a right to un-
limited amounts of time, or a right.to time without
reasonable restrictions, that would be another case. If
the DNC were claiming a right to disrupt program-
ming schedules, that would be another case. If the
DNC were claiming a right to space in media which
operate using private resources, rather than on phys-
ically limited channels established by and belonging to
the public, that would be another case. And if the
DNC were not seeking to promote and maintain a sys-
tem of political communication and organization which
the Court has said is constitutionally protected, that
would be another case.
But all the Democratic National Committee asks is
that to some reasonable degree, the opportunity to con-
tact the public directly over the public’s airwaves at
the going commercial rate be kept open. To recognize
this First Amendment need is to do no more than
preserve the necessary political dialogue which is ‘‘the
essence of self-government.’’ Garrison v. Louisiana,
supra, 379 U.S. at 75.
E. Permitting Some Paid Discussions By Political Parties Will
Avoid Governmental Censorship and Will Not Present
Serious Administrative Problems.
As previously noted, the policy for which the Dem-
ocratic National Committee argues and which the
Court of Appeals upheld holds no surprises: the Com-
mission and the industry have tried it before, for many
years, with no ill effects whatsoever.’ Yet the net-
118 See pp. 19-26, supra.
63
works claim that to require of them something more
than a flat, arbitrary ban on paid broadcasts on publie
issues would involve the Government too deeply in
their activities and put in jeopardy their First
Amendment rights. Such arguments, of course, are
‘familiar. They have been raised by broadeast licensees
against the important attempts to regulate their activ-
ities since the Communications Act was passed, and
have been consistently rejected by this Court. See, ¢.9.,
Red Lion, supra; National Broadcasting Co. v. United
States, supra. <A sufficient answer was given by this
Court three years ago in Red Lion, when it said that in
the unique broadcast medium, to require licensees to
exercise their trust consistently with First Amendment
objectives, ‘“‘enhance[s] rather than abridge[s] the
freedoms of speech and press protected by the First
Amendment.”’
But the intervenors’ arguments are even less apt in
this case than they were when they attacked the fair-
ness doctrine in Red Lion. The relief ordered in the
present case—that the Commission draw reasonable .
rules which do not totally bar purchase of time by re-
sponsible persons to discuss public issues—does not
threaten to involve the Commission deeply in program
content. On the contrary, unlike the fairness doctrine,
permitting some purchase of time promotes robust dis-
cussion not through government monitoring of pro-
gram content, but rather through the system of private
ordering. It does not place total reliance on govern-
mental threats or raised eyebrows to make the licensees
do their job. Instead, it looks to the persons who are
advocates to present topics of debate, subject to the
9 395 U.S. at 375.
a
6+
general guidelines the Commission may deem appro-
priate. To complement the managed economy of the
fairness doctrine, it offers in the context of the broad-
cast medium something approaching the ‘‘free trade
in ideas’’ which is what the First Amendment is all
about.
No one is suggesting any limitation on the right of
broadcast journalists to report, analyze and interpret
the events of the day. The court below fully recognized
the need to accommodate the free speech interests of
the broadcast licensees themselves. It concluded that
those interests did not require them to use completely
every minute of every broadcast day, and that those
interests were less compelling in time that the licensees
had already put up for sale to others. It directed
the Commission to take the licensees’ legitimate in-
terests into account in formulating appropriate regu-
lations, and to leave ‘‘room for broad exercise of* the
broadeasters’ discretion.’”* In any event, the free
speech rights of the broadcast. licensees, as this Court
has held, are not absolute. ‘‘The right of free speech of
a broadcaster .. . does not embrace a right to snuff out
the free speech of others.’’ Red Lion, supra, 395 U.S.
at 387.”
Since the DNC is asking, not for free time, but sim-
ply to buy at the going rate, no economic loss to the
a
120 App. 464, 484.
121 This Court has ordered even a newspaper to grant access for
paid advertisements under appropriate circumstances. See Lorain
Journal Co. v. United States, 342 U.S. 143 (1951). Cf. the com-
pulsion sometimes imposed to provide broadcast time to a par-
ticular individual. Cf. Nicholas Zapple, 23 F.C.C. 2d 707 (1970).
The Commission last year over licensee protests entered an order
requiring licensees to xet aside one hour of prime time each evening
for access for programs not being transmitted by a network. 47
C.F.R. § 73.658(k). The licensees have generally used that hour
for re-runs of old network crime and situation-comedy shows. Cf.
e.g., TV Channels, Washington Post, Aug. 6, 1972, passim.
LUCY OLLI LEON LRN UT RE ROME EMTS 6 LIGAEN AH AID KC AE TB
69 -
licensees is involved. Perhaps the licensees fear that
broadcast of announcements on political matters might
lessen their ability to appeal to the widest possible
number of viewers, and thereby lessen audience ratings
and possibly advertising revenues from other adver-
tisers. The concern is speculative. The licensees ap-
pear to have survived the broadcasting of paid political
messages during political “‘campaigns’’ without lasting
ill effect. Moreover, it is not the maximizing of licensee
revenues, but the interest of the viewers, which is para-
mount. And in any event, the Court of Appeals spe-
cifically required the Commission to be sure that the
licensees were protected from actual financial harm.’
The licensees might fear that broadcasting of paid
announcements by proponents of political views might
trigger a fairness obligation to broadcast opposing
views even if the opponents cannot pay. The answer
to this is, first, that any such obligation is one of gen-
eral fairness, not the rigid equal time requirement for
candidates under § 315, so that the Commission can
formulate rules to keep the reply right doctrine with-
in reason; second, that the viewers’ interest is para-
mount, and if any revenue loss cannot be absorbed in
other charges and becomes crippling, there will be as
this Court said in Red Lion, “time enough to recon-
sider ;’”” finally, that this Court has never had occasion
to declare that there is a free right to reply to paid
advertising, and the lower courts have applied such a
doctrine extremely sparingly.'*
122 App, 486. Licensees appear to have weathered the broadcast-
ing of paid political announcements prior to elections without ill
effect.
3395 U.S. at 393.
4 Cf., c.y., Green vy. FCC, 447 F.2d 323 (D.C. Cir. 1971). Anti-
smoking commercials were shown only about one-fifth as frequently
as cigarette advertisements. Jaffe, supra n. 68, at 779.
a
66
Nor is there any basis whatsoever for the assertions
by the networks that unless they have arbitrary power
to ban all paid messages on public issues, the wealthy
will buy up all the time. The Court of Appeals noted
specifically that invalidation of the flat ban ‘‘does not
close the door to ‘reasonable regulations’ designed to
prevent domination by a few groups or a few view-
points.’’’** Many regulatory means are possible, and
they can be modified if necessary.
The intervenors’ forecasts of chaos come with par-
ticular ill grace since the very purpose of their seek-
ing certiorari was to prevent any effort to develop rea-
sonable rules as mandated by the Céurt below.’ Their
alarms seem all the more extravagant in light of their
unfulfilled prophecies of doom in the past. In 1968 in
Red Lion CBS told this Court that ‘‘the [fairness]
rules, if upheld, would deter the broadcast of views on
controversial issues’? and ‘‘would have an insidious,
if not totally destructive, effect upon many of these
programs.’’'*? Nevertheless, today the same network
uses no less than 195 pages of the printed record of
this case in attempting to demonstrate that since
(and apparently in spite of) the Red Lion decision
‘‘in quality as well as quantity, CBS has served
the public increasingly well.’’** As for the Com-
mission’s complaints that formulating a rule will
be a difficult task and lead to disputes, the court of
appeals most experienced in reviewing the Commis-
sion’s activities remarked in a related context, “The
F
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123 App. 485. 9
126 The Commission’s brief concedes, at p. 58, that some of the
disasters predicted ‘‘ Perhaps ... [are] not inevitable.’’
27 Brief for Respondent Columbia Broadcasting System. Ine..
No. 717, October Term, 1968, at 1-2, 4.
'28 App. 52; 48-242.
$
4
3
3
_
67
fears of regulatory agencies that their processes will
be inundated . . . are rarely borne out.’’ Office of Com-
munication of United Church of Christ v. FCC, 359
F.2d 994, 1006 (D.C. Cir. 1966) (Burger, J.). And in
any event this Court has said that when an agency has
failed in its duty to safeguard rights it is charged to
protect, “‘no room was left for administrative or ex-
pert judgment with reference to practical difficulties.’
Boynton v. Virginia, 364 U.S. 454, 459 (1960).
The fact is that there are no administrative obsta-
cles here which the Commission cannot handle. That,
after all, is the Commission’s function; and all the
court below asked was that it try. Any commission
that feels itself competent to evaluate broadcast licens-
ees in light of a standard of the ‘‘public convenience,
interest or necessity,’’ and to administer a doctrine of
“fairness,’’ surely must have enough administrative
skill on hand to devise a reasonable way to permit a
political party occasionally to buy time to talk directly
with the public. The Commission’s sudden modesty is
both unprecedented and unbecoming.’”
In short, the reports that the death of free broad-
casting is imminent are greatly exaggerated. As this
Gourt responded to similar claims in Red Lion, ‘‘if
experience with the administration of these doctrines
indicates that they have the net effect of reducing
rather than enhancing the volume and quantity of cov-
erage, there will be time enough to reconsider the con-
stitutional implications.’’ 395 U.S. at 393. That wise
forbearance is even more appropriate where, as here,
the Commission’s rule has not yet even been formu-
lated.
129See United Broadcasting, supra, 10 F.C.C. at 518, where the
Commission rejected the same arguments of administrative diffi-
culty it today embraces.
/
CN BE oA aca aR Tie Maa, ab gabon
68
F. The Ruling of the Commission is Subject to First Amend-
ment Standards.
1. The Commission's Interpretation of Its Constitutional
Responsibilities Is Subject to Judicial Review.
The intervenors in this litigation, CBS and ABC,
(but not the Solicitor General or the Commission) de-
vote considerable space in their briefs to arguing that
their exclusionary policies do not involve ‘‘state ae-
tion.” The intervenors’ analogies are beside the point.
The issue here is whether the Federal Communications
Commission is doing its job."
When the Commission ruled that its policy was to
uphold an absolute ban on the sale of time for political
discussion, the DNC brought an action against the
Commssion in the court below seeking review. CBS
and ABC intervened, contending that their particular
_exclusionary rules were their business, a totally pri-
vate decision. But what the DNC has maintained
throughout is that the Commission’s action does not
square with the mandates of both the Communications
Act and the First Amendment; and there can be no
doubt that the Federal Communications Commission
130 Nor can it be assumed that the entire body of doctrine con-
cerning the Fourteenth Amendment, beginning with the Civil
Rights Cases, 109 U.S. 3 (1883), is to be applied mechanically and
without analysis in totally different circumstances which do not
involve that amendment at all, but rather the First Amendment—
a provision framed at a different period in history, with different
purposes on which depends the very functioning of our govern-
mental system. CBS seems to coneede that the ‘‘state action”
limitations of the Fourteenth Amendment may not apply to the
First in the same fashion—but asserts, without giving reasons,
that the scope of the First Amendment, which protects “‘ preferred”
rights, is nevertheless to be more limited. See Brief for Petitioner
Columbia Broadcasting System, Inc., at 23; see generally pp. 78-81.
infra.
_—_
69
is subject to both. The intervenors, by injecting them-
selves into the dispute between the DNC and the Com-
mission, cannot convert this litigation into a suit solely
between private parties ™ and thereby bootstrap their
right to intervene into a constitutional basis of de-
cision.
The intervenors’ curious argument would immunize
from constitutional safeguards nearly all decisions
by administrative agencies which authorize actions
by regulated firms. For if an FCC order permit-
ting the banning of paid political messages is not
reviewable on statutory and constitutional challenge,
what of a Federal Power Commission order grant-
ing a rate increase, or an Interstate Commerce
Commission order permitting a discontinuation of
service, or a Civil Aeronautics Board order granting
a right to operate on a particular route? All of these
are instances where a regulatory agency permits and
'! The intervenors (but not the Solicitor General or the Com-
mission) cite two superannuated court of appeals decisions and
a more recent ruling of a federal district judge as supporting
their ‘‘state action’’ argument. The former two cases held simply
that the plaintiffs had failed to exhaust their administrative reme-
dies—that ‘‘the enforcement of the Act rests in the FCC and not
in the district courts of the United States save for a right of re-
view of the Commission’s orders.’’ The cases did not address total
refusals to sell time to anyone to discuss ‘controversial issues’’;
and the loose dicta they contain are uninformed by more than twen-
ty years of subsequent decisions by this Court. McIntire v. William
Penn Broadcasting Co., 151 F.2d 597, 600 (3d Cir. 1945), cert. de-
nied, 327 U.S. 779 (1946) ; Massachusetts Universalist Convention
v. Hildreth & Rogers Co., 183 F.2d 497, 500 (1st Cir. 1950). Fi-
nally, Post v. Payton, 323 F. Supp. 799 (E.D. N.Y. 1971), is not
remotely in point; it held in a private suit for damages and in-
junctive relief that constitutional safeguards were not violated in
an employment dispute when a licensee fired an employee for
broadcasting alleged obscenities.
oo"
70
approves actions of the enterprises it regulates; but it
has never been seriously contended that because those
enterprises receive permission, rather than direction,
the order of the regulatory commission is thereby
somehow immunized from judicial review on challenge
by persons who are adversely affected by the order.
The scope of such review is certainly no less when the
agency is claimed to have violated the Constitution as
well as its basic statute.’
: Where the right of free speech is at stake, this Court
; has held that Government violates the First Amend-
ment when it lends its authority to a system of private
: censorship. See Bantam Books, Inc. v. Sullivan, 372
: U.S. 58 (1963). Censorship is ‘‘hardly less virulent for
being privately administered.”’. Smith v. California,
361 U.S. 147, 154 (1939). This Court has held that gov-
ernmental policies violate the First Amendment when
they may tend unnecessarily to generate reticence and
self-censorship by individuals. New York Times Co. v.
Sullivan, 376 U.S. 254, 279 (1964); Bantam Books,
Inc. v. Sullivan, supra; Speiser v. Randall, 57 US.
513 (1958). The First Amendment’s intended system
of open discussion which those cases recognize cannot
exist when the Commission endorses the censorship of
the public’s airwaves by its licensees.
bgt
G55 St Se AIRE ABE ain niki A ot aoa
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team &
2a
: The Commission’s policy here is certainly more
fraught with governmental involvement than was
132 Cf., e.g., United States ex rel. Chapman v. FPC, 345 US. 153
(1953) (suit to set aside FPC order permitting construction of
dam by private company) ; Henderson v. United States, 339 US.
816 (1950) (suit to set aside ICC order permitting racial segrega-
tion in dining cars of private railroad company) ; Parker v. Flem- _
ing, 329 U.S. 531 (1947) (suit to set aside order of Price Admin- |
istrator permitting private landlord to evict) ; Mitchell v. United
: States, 313 U.S. 80 (1941) (suit to set aside order permitting
; racial segregation by private railroad company).
th Sig de ea as an ae SE ea ana oe eae Re Ra
—
true in New York Times Co. v. Sullivan, supra,
where private plaintiffs sought damages for the
injury done them. by private individuals. For a
state to permit libel plaintiffs to inhibit free speech
by damage claims, this Court held, was sufficient gov-
ernmental involvement to bring First Amendment
guarantees into play. Here the governmental involve-
ment is all the greater: the Government is not a neu-
tral arbiter, but is an active party to the litigation
arguing for the policy it has approved. Just as govern-
ment may not enforce unconstitutional conditions de-
vised by a third party on a transfer of real estate from
a willing buyer to a willing seller, so it may not enforce
the unconstitutionally restrictive policies of a third
person—the Commission’s licensee—on the communi-
cation between a speaker and his audience. Cf. Shelley
v. Kraemer, 334 U.S. 1 (1948).
1
2, The Broadcast Spectrum Is Public Property, Use of Which Has Been
Delegated Subject to Detailed Federal Regulation
The airwaves belong to the publie.’* That the re-
source is in the public domain is itself persuasive
that actions using the property in question are sub-
ject to constitutional restrictions. This is not to
say, of course, that every government lessee is subject
in all activities to the restrictions the constitution
places on governments. But where the license confers
an exclusive right over federal property; where the
licensee’s very existence depends upon the federal
award ; and where the policy in dispute is one which is
central to the operation of the political system, then
wonstitutional restrictions cannot totally vanish. Many
'§§ See pp. 51-52, supra.
72
state and federal courts have so held."“* Nor can an
administrator of a publie resource, required to promote
‘‘the public interest,’’ assert the same interest in idio-
syneratie private behavior as could, for example, the
proprietor of a small restaurant or boarding house.
F In Lloyd Corp. v. Tanner, discussed supra, this
Court emphasized that public property. and private
property are subject to differing constitutional stand-
: ards for access. Rejecting a claim of right to use a
q private shopping center, this Court noted that where
property is publicly owned ‘tit has often been held”
that ‘‘aeeess . . . for purposes of exercising [First
Amendment] ... rights cannot be denied absolutely.’
Also, the Lloyd opinion noted that the handbilling
there was not consistent with the prineipal fune-
tion of the property—sales—whereas communication
is the broadeast frequencies’ reason for being. And
whereas in Lloyd alternative avenues for handbilling
existed—‘‘on any public street, on any public sidewalk,
in any public park, or in any public building in the
eity of Portland,” there are no alternative radio and
television channels; the Commission’s licensees con-
trol them all."**
134 See, ¢.g., Kissinger v. New York City Transit Authority, 247
F.Supp. 438 (S.D.N.Y. 1967) (advertising space on city busses) ;
Farmer v. Moses, 232 F.Supp. 154 (S.D.N.Y. 1964); Hillside
Community Church, Inc. v. City of Tacoma, 455 P.2d 350 (Wash.
1969) ; Wirta v. Alameda-Contra Costa Transit Dist., supra.
185 See pp. 50-51, supra.
136 40 U.S.L. WEEK at 4832.
ST Td. at 4833 (emphasis supplied).
3 138 Compare Amalgamated Food Employees Union vy. Logan Val-
; ley Plaza, Inc., 391 U.S. 308 (1968), where aecess to private prop-
erty was held constitutionally required when the alternative ave-
nues would not be as effective, given the subject involved. See also
9 he OA NO OI
LEE LLO WILLE IL LEE ENG IRI LEN NGO GLIDING
73
3. The Government Intimately Regulates the Operations of Broadcast
Licensees and Confers On Them Unique Privileges
In Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972),
this Court noted that an action by a licensed entity
may stand on a different constitutional footing if it has
the considered approval of the governmental regula-
tory ageney. Such approval was absent in Jrvis: but
it had been present, the Court noted, in Public Utilities
Comm'n v. Pollak, 343 U.S. 451 (1952), so that a street
car company’s commission-approved policy of broad-
casting to passengers was subject to constitutional re-
strictions."*°
The decisions of this Court make clear that when
government undertakes to regulate in detail a practice
or group of pratices of a regulated entity, to that ex-
tent the practice can no longer be treated as wholly
private. Thus in holding the privately owned street-
ear system subject to the First and Fifth Amendments
this Court said:
“We... recognize that Capital Transit operates
its service under the regulatory supervision of the
Publie Utilities Commission of the District of Co-
lumbia which is an ageney authorized by Con-
gress. We rely particularly upon the fact that
that ageney, pursuant to protests against the radio
program, ordered an investigation of it and, after
formal public hearings, ordered its investigation
dismissed... .’’ 1"
Marsh v. Alabama, 326 U.S. 501 (1946). Also unlike Lloyd, eom-
peting interests based on the constitutional guarantees of due
Process of law and that private property shall not be taken with-
out just compensation are not involved here.
™See 407 US. at 175-76 0.3: B43 US. at 462.
‘343 TLS. at 462 (footnote omitted).
cated AS, oukeae West sie At Ouse Na
Slat Son
74
The regulation of broadcasting by the FCC is more
pervasive than that by the District of Columbia Pub-
lic Utilities Commission. After full consideration the
FCC approved the policy in question here. And, un-
like Pollak, this case concerns not an incidental activ-
ity of the streetcar company, but the primary activity
of the regulated entity—communications. Moreover,
as noted previously,’ the licensees enjoy ‘‘a spectac-
ular subsidy’? from the government.
The Federal Communications Commission itself be-
lieves that its regulation of broadcasting is so per-
vasive that constitutional guarantees may affect even
the employment practices of its licensees:
‘‘TA] substantial case has been made that because
of the relationship of the Government of the
United States to broadcast stations, the Commis-
sion has a constitutional duty to assure equal em-
ployment opportunity. ... The contention is rested
upon such decisions as Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961).”’*”
Consistently with this view of its involvement in the »
activities of licensees, the Commission has eschewed
the ‘‘state action’? arguments put forth by the inter-
venors in this case.
The issue in this case cannot be resolved by a me-
chanical search for governmental involvement. Clearly,
the Government is involved in many ways in the policy
of the broadcasters. The question is whether, in light
of the policies and assumptions expressed in our Con-
stitution, such governmentally-involved action can es-
141 See p. 52, supra.
142 Petition for Rulemaking, supra n.92, 18 F.C.C. 2d 240, 241
& n.2 (1969).
aw
cape all Constitutional restraints." “O
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