# Brief for Respondent — Columbia Broadcasting System, Inc. v. Democratic National Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0152%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1973 - **Citation:** 412 U.S. 94 ## Text 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... 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 : ‘. ; 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.