Amicus Curiae Brief — Columbia Broadcasting System, Inc. v. Democratic National Committee

Supreme Court brief1973

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CITATIONS

F Associated Press v. United States, 326 U.S. Lan. 6,11

| Bates v. Little Rock, 361 U.S. 516 .sssssssssssssssssssssssee 12

| Braneburg v. Hayes, —U.S.—, 40 L.W. 5025.. 6,11

| Center for Law and Social Policy, 93 P. & F. Radio

| Regulation 2d 187 3

City of Chicago v. Mosley, —- U.S. —, 40 L.W.

URS TE SERIE ESD Malreintensecer ee 7, 10, 12, 13

b Garrison v. Lowisiana, 379 U.S. 64 .sssssssssssssssessseseeeee 11

I a sss aesenonnienesmecaus 10

| Keyishian v. Board of Regents, 385 U.S. 589 ........ 9

| Moose Lodge v. Irvis, —- U.S. —, 40 L.W.

cue 22

| New York Times v. Sullivan, 376 U. S. hun OOo

4 12, 18-19

| Phelps Dodge Corp. v. NLRB, 313 U.S..177 -.....+.00« 18

| Pickering v. Board of Education, 391 U.S. 563... 6, 9,11

F Powe v. Miles, 407 F.2d 73 (C.A. 2) 22

: Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 .... 3, 6,

é 8, 9, 10, 11, 13, 14, 16, 17, 19, 21, 22

_ Report on Editorializing, 13 FCC 1249 .........se.0 15

3 ' Retail Store Employees Union v. FCC, 436 F.2d

» 248 (C.A.D.C.) . 2

LEIP ONL LES UENO EO II BAB NR 8 ip Oe arctan pane cag

United Broadcasting Co., 10 FCC 515

Valentine v. Chrestensen, 316 U.S. 52

STATUTES:

Communications Act of 1934, 47 U.S.C.:

§ 153(h) 15, 16

§ 301 22

ics cesdieeonsenerinivencetioen tennant 14, 15

Kalven, Cox v. Louisiana: The Concept of the

MISCELLANEOUS:

Public Forum, 1965 Supreme Court Review 1.... 89

Supreme Cot of the United States

October Term, 1972

No. 71-863

CotumBi1a Broapcastine System, Inc.,

fe Petitioner,

Demooratic National Committees, et al.,

No. 71-864

FepERAL CoMMUNICATIONS COMMISSION AND

Unitep States oF AMERICA,

i. Petitioners,

Business Executives’ Move ror Vietnam Peace, et al.,

No. 71-865

Post-NEwswEEK Stations, Capitan Arga, INc.,

- Petitioner,

Business Executives’ Move ror Vietnam Peace, et al.,

No. 71-866

American Broapcastine Compants, INo.,

. Petitioner,

Democratic Nationa CommittTes, et al.,

On Writs or CERTIORARI TO THE Unitep States Court

or APPEALS FOR THE Districr or CotumBi1a Circurr

BRIEF FOR THE

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE

This brief amicus, in support of the position of the

Democratic National Committee and the Business Execu-

tives’ Move for Vietnam Peace, is filed by the American

PE DE LEE I IYER EL IONE GIL BEN IO LOA BPE HO Fal AR tyre esta yn) op) ae ,

Federation of Labor and Congress of Industrial Organiza-

tions (AFL-CIO), a federation of 115 national and inter-

national labor unions having a total membership of approx-

imately 13,500,000 working men and women, with the

consent of the parties, as provided for in Rule 42 of the

Rules of this Court.’

As the leading reported cases from United Broadcasting

Co., 10 F.C.C. 515, through Retail Store Employces Union

v. FCC, 436 F. 2d 248 (C.A.D.C.) indicate, the labor move-

ment has continuously sought, and been continuously denied,

the opportunity to utilize broadcast advertising time to

reach the public on controversial issues of public impor-

tance. It is for this reason that the AFL-CIO wishes to

take this opportunity to acquaint this Court with its views

on the issues presented in the instant cases.

ARGUMENT

1. ‘‘Broadcast licensees ... serve... 48 ‘speakers’...

in normal programming time”’ during which they air, inter

alia, ‘news and documentary presentations” which they

‘‘closely edit and control’? (A. 464) and which, therefore, |

express their considered judgments as broadcast journal-

ists. Licensees also ‘‘open up’’ the airwaves ‘‘for direct

broadcast presentations by members of the public.’’ A. 475.

They sell time to third persons for “advertising purposes”’;

these advertisements are ‘‘nonprogram material’’ to use

Commissioner Cox’s suggestive phrase. A. 369. As to this

advertising time, broadcasters ‘‘serve not... as speakers

... but ag administrators of a highly valuable communica-

tions resouree.’’ A. 464. While licensees are required by

the Federal Communications Commission to retain a resid-

ual measure of control over advertisements ‘‘to protect

the public’’ from ‘‘deceptive or misleading advertisements”’

(Center for Law and Social Policy, 23 P. & F. Radio Regu-

lation 2d 187, 195) it is recognized by all that the purpose

of “‘nonprogram material’’ is to state the sponsor’s views,

and that it is not a product of the broadcaster’s journalistic

judgment. Clearly the decision to cut from a news report

to advertisements ‘‘for soaps, brassieres, deodorants, and

mouthwashes’’ (A. 250) reflects an economic rather than

an editorial choice.

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386,

this Court disapproved the broadcasters’ pretentions ‘‘to

use their allotted frequencies continuously to broadcast

whatever they choose and to exclude whomever they choose

from using that frequency.’’ Red Lion involved program

time as to which ‘‘the broadcasters own interests in free

speech are very very strong.’’ A. 464-465. The instant case,

in contrast, involves only the ‘‘allocation of advertising

time’? as to which ‘‘the broadcasters themselves have no

substantial First Amendment interest’’ (A. 465), if indeed

they have any at all. Compare Valentine v. Chrestensen,

316 U.S. 52. Nevertheless, here, once again, a claim of right

“to exclude whomever [the broadcasters] choose,’’ in this

instance through ‘‘a flat ban on paid public issue announcé-

ments’’ (A. 449), is the heart of Petitioners’ case. And

here, as in Red Lion, this claim must be rejected if the

purposes of the Communications Act and the promise of

the First Amendment are to be fulfilled.

The Government argues that the question presented in

the instant case is:

‘‘Whether, under the powers gralited to it by the

Gy PION RISO SP AY, OBA EE IM TR ee NEE alt teal rm Tt ae

Federal Communications Act, and in light of the

inherent limitations on the broadcast spectrum, the

Federal Communications Commission, which under its

‘Fairness Doctrine’ requires broadcast licensees to

present programming involving controversial issues of

public importance, must, because of the First Amend-

ment, also require that the licensees sell time to indi-

viduals and groups for the advertising of their partic.

ular views.’’ Gov. Br. p. 2.

This misstates the question before the Court unless it is

amended as follows:

‘‘Whether, under the powers granted to it by the

Federal Communications Act, and in light of the

inherent limitations on the broadcast spectrum, the

Federal Communications Commission, which under its

‘Fairness Doctrine’ requires» broadcast licensees to

present programming involving controversial issues of

public importance, must, because of the First Amend-

ment, also require that the licensees who elect to sell

time to third persons to advertise goods and services

must also sell some nénprogram time to individuals

and groups for the advertising of their particular views

on controversial issues of public importance.’ (Our

additions in italics).

For the issue here is not whether broadcasters shall be

restricted by rules other than the Fairness Doctrine with

respect to program time; it is whether they may constitu

tionally be permitted to discriminate against speech on

_ issues of public importance during advertising time. Thus

the Government’s artful phrasing of the question poses 4

false dichotomy between the rights of broadcasters to make

their own programming decisions and the rights of non-

licensees who wish to broadcast public issue announcements.

But the real conflict is between the right of broadcasters to

sell advertising time on any basis that suits their conve-

nience and their obligation to do so in a manner consistent

with the values embodied in the First Amendment.

The court below correctly understood this to be the issue.

It held*that in light of the overall plan of the Communica-

tions Act, the Government has a duty to secure broadcaster

compliance with the mandate of the Constitution in their

handling of advertising time. And, applying First Amend-

ment standards, which none of the Petitioners dispute, the

lower court held that the Commission must promulgate

rules and regulation which prohibit licensees from discrim-

inating against ‘‘editorial’’ advertisements, which the First

Amendment is designed to protect and further (New York

Times v. Sullwam, 376 U.S. 254), in favor of ‘‘purely com-

mercial advertisements’’ whieh do not come within the

protective ambit of that Amendment (Valentine v. Chres-

tensen, 316 U.S. 52). In the words of the court below, the

“extreme form of ... [licensee] control in... the sale of

advertising time ... which totally excludes controversial

public debate from [that] time... when other sorts of

paid announcements are accepted ... is in violation of

the First Amendment’’ (A. 449, emphasis in the original),

and the Commission is, therefore, required to ‘‘develop

reasonable regulatory guidelines to deal with editorial

advertisements’’ (A. 448). In remanding for further pro-

ceedings, the lower court took pains to assure the Commis-

sion ‘broad latitude to develop ‘reasonable regulations’

which will avoid any possibility of chaos and confusion.’’

A. 484. The limited and measured steps taken by the court

below are the absolute minimum required to harmonize the

Communications Act, as elaborated by the Commission’s

OP EEL EEL IIIT L OM ONL! LEE LCN YRS rma Het A Bice Re

——

rulings and regulations, with the requirements of the Con-

stitution. For New York Times and Valentine v. Chresten-

sen make it plain that to allow the complete subordination

of the right to present controversial public issue advertise-

ments to the right to present purely commercial advertise-

ments is to invert the free speech values embodied in the

Constitution. And this Court’s decision in Red Lion, by

establishing that it is the ‘‘collective right’’ of the ‘‘people

as a whole’’ to have the radio and television media ‘‘fune-

tian consistently with the ends and purposes of the First

Amendment”’ (395 U.S. at 389), has removed all doubt

‘‘that the First Amendment... has a major role to play...

[in the regulation of] public broadcasting’’ (ibid).

2. ‘‘Free and unhindered debate on matters of public

importance [is] the core value of the Free Speech Clause

of the First Amendment.’’ Pickering v. Board of Education,

391 U.S. 563, 573. The right to take part in that debate is

accorded to all citizens, not a chosen few. ‘‘That Amend-

ment rests on the assumption that the widest possible dis-

semination of the information from diverse and antago-

nistic sources is essential to the welfare of the public. ...

Freedom to publish means freedom for all and not for

some.’’ Associated Press v. United States, 326 U.S. 1, 20.

This freedom is a ‘‘fundamental personal right . . . of the

lonely pamphleteer . . . as much as of the large metropolitan

publishers . . . [it] is not confined to newspapers and

periodicals.’ Branzburg v. Hayes, ........ Oy enn , 40 L.W.

5025, 5037. By the same token, within wide limits (see, e.g.,

Valentine v. Chrestensen, 316 U.S. 52), the Constitution pro-

vides no hierarchy which assigns a higher value to certain

forms of free speech than to others. ‘‘The constitutional

protection does not turn upon ‘the truth, popularity or

social utility of the ideas and beliefs which are offered’.”?

New York Times, 376 U.S. at 271. ‘That is why ‘ [w]holly

neutral futilities . . . come under the protection of free

speech as fully as do Keats’ poems or Donne’s sermons’.”?

Cohen v. California, 403 U.S. 15, 25. ‘Our profound national

commitment to [these] principle[s]’? (New York Tumes,

376 U.S. at 270) rests on the basis that:

“The constitutional right of free expression .. . is

designed and intended to remove governmental re-

straints from the arena of public discussion, putting

the decision as to what views shall be voiced largely

into the hands of each of us, in the hope that use of

such freedom will ultimately produce a more capable

citizenry and more perfect polity and in the belief that

no other approach would comport with the premise of

individual dignity and choice upon which our political

system rests.’ Cohen v. California, 403 U.S. at 24.

As a general proposition then, it is indisputable that ‘our

people are guaranteed the right to express any thought,

free from government censorship, [t]he essence [of which]

is content control,’’ and that the Government ‘‘may neither

select which issues are worth discussing or debating in

public facilities’? nor practice a policy of ‘selective exclu-

sions [of speakers] from a public forum . . . justified by

reference to content alone.’’ City of Chicago v. M osley,

ne , 40 L.W. 4877, 4878.

This principle is not absolute, however. “*Conflicting

demands on the same place may compel the State to make

' choices among potential users and uses.’’ Id. at 4879. Where

there are more who wish to express their views than a

particular medium can accommodate, governmental rules

eeecceee

REPRISE OP LON ORT EER RE

SEE es Seep

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of allocation to govern that scarce communications resource

are not per se violations of the First Amendment even

though they still the voices of all but ‘‘a tiny fraction of

those with the [desire, the] resources, and intelligence to

communicate [on that medium] at the same time.’ Red

Inon, 395 U.S. at 388. In the face of the ‘‘massive reality”

of scarcity ‘‘it is idle to posit an unabridgeable First

Amendment right to [speak].’’ Jd. at 388. For, absent gov-

ernment regulation, experience has demonstrated that

where the demand to speak has exceeded the supply of

opportunities to do so, ‘‘the result was chaos”’ in that ‘‘the

medium [was] of little use because of the cacophony of com-

peting voices.’’ Id. at 376. Where scarcity prevails govern-

mental rules of order are, therefore, the sine qua non of

‘*intelligible communication.’’ Jd. at 388. Thus, such rules

are not inherently inconsistent with the First Amendment.

For ‘‘[i]t would be strange if [that] Amendment, aimed at

protecting and furthering communications, prevented the

Government from making . . . ecOmmunication possible.”

Id. at 389. In short, Government action which furthers

free speech overall is not subject to censure on the bare

ground that it requires some who wish to speak to be quiet:

‘No one has ever argued that speech should be free

of the restraints of reasonable parliamentary rules...

speech has always been dependent on some commitment -

to order and etiquette ...:

‘When self-governing men demand freedom of

speech they are not saying that every individual

has an inalienable right to speak whenever, wher-

ever, however he chooses. They do not declare

than any man may talk as he pleases, when he

pleases, about what he pleases, about whom he

pleases, to whom he pleases. The common sense of

any reasonable society would deny the existence of

that unqualified right’.’’ Kalven, Coz v. Louisiana:

The Concept of the Public Forum, 1965 Supreme

Court Review 1, 23-24.

Naturally Congress has a measure of discretion in tailor-

ing the allocational rules it develops to the needs of a

particular medium. The proper function of these rules is to

set an agenda for ‘‘free and unhindered debate on matters

of public importance’’ (Pickering, 391 U.S. at 573), and to

meet ‘‘the right of the public to receive suitable access to

social, political, esthetic, moral and other ideas’? (Red

Tion, 395 U.S. at 390), under circumstances in which ‘‘it

[is] essential for the Government to tell some applicants

that they [can] not [speak] at all because there [is] room

for only a few’’ (7d. at 388). This requires a most sensitive

mediation between competing First Amendment claims in a

fashion which fairly promotes coherent discussion cover-

ing the full range of human concerns and which avoids the

rigidities of ‘‘authoritative selection’’ (Keyishian v. Board

of Regents, 385 U.S. 589, 603). Thus there is no single for-

mula which sets the terms on which the process of selection

shall be made, and which applies across the board. ‘‘ Differ-

ences in the characteristics of news media justify differ-

ences in the First Amendment standards applied to them.”

Red Lion, 395 U.S. at 386.

“‘The Government,’’ to take one example, ‘‘could surely

have decreed that each frequency should be shared among

all... those who wish to use it, each being assigned a

portion of the broadcast day or the broadcast week.’’ Id.

at 390-391. This would be precisely the ‘‘reasonable ‘time,

place and manner’ regulation . . . necessary to further sig-

ERLE ERT EILEEN SUC NEY LEN Sem HEH LSE AIR OSUNEN renter vn n magnceapounyet

—_—

nificant governmental interests,’’ which this Court has

‘*continually recognized’’ as valid. Mosley, 40 L.W. at 4879,

At the same time, it was assuredly open to Congress to

decide, as it has, to allot the airwaves to licensees who are

required ‘‘to conduct themselves as a proxy or fiduciary

with obligations to present those views and voices which

are representative of their community’’ (Red Lion, 395 US.

at 389), pursuant to a ‘‘twofold duty ... to give adequate

coverage to public issues . . . at the broadcastors own

expense [and] initiative [if necessary] . . . [which] cover-

age must be fair in that it accurately reflects opposing

views’’ (id. at 377-378), and who, as the court below recog.

nized, are accorded ‘‘broad leeway for professional judg.

ment’’ in carrying out their responsibilities as broadcast

journalists (A. 465). For this option, too, serves the public

interest in meaningful debate on public issues complemented

by coherent and variegated broadcast programming.

But the fact that there is this range of choice does not

mean that the legislative authority is wholly at large.

‘‘[ Jjustification for selective exclusions from a public

forum must be . . . tailored to serve a substantial govern-

mental interest . . . and must be, carefully scrutinized.”

Mosley, 40 L.W. at 4879. ‘‘The right to use a public place

[dedicated to communication] for expressive activity may

be restricted only for weighty reasons.’’ Grayned v. City of

Rockford, ........ Ca wccans , 40 L.W. 4881, 4882. In essence,

rules of order are compatible with the tenets of free speech

bevause they make ‘‘intelligible . . . communication pos-

sible.’’ Red Lion, 395 U.S. at 388, 389. Thus, in testing the

validity of any scheme of allocation the basic touchstone in

that the regulatory regime must ‘‘enhance rather than

abridge the freedom of speech . . . protected by the First

Amendment.’’ Jd. at 375. The course charted by the court

below meets this fundamental requirement; the opposite

tack taken by the Commission does not.

The lower court’s decision increases the amount of

“speech concerning public affairs [which] is more than

self-expression; it is the essence of self-government’?

(Garrison v. Louisiana, 379 U.S. 64, 74-75) derived

from ‘‘the widest possible dissemination of information

from diverse and antagonistic sources’? (Associated Press,

326 U.S. at 20). Thus it enhances ‘‘free and unhindered

debate on matters of public importance’? (Pickering, 391

U.S. at 573), as well as ‘‘the right of the public to receive

suitable access to social, political, esthetic, moral and other

ideas.’’ (Red Lion, 395 U.S. at 390). It does so by vindi-

cating ‘‘the fundamental personal right’’ (Branzburg, 40

L.W. at 5037) of free expression of non-licensees ‘who wish

members of the press’’ (New York Times, 376 U.S. at 266).

This serves to maximize the extent to which ‘‘the decision

as to what views shall be voiced [is placed] in the hands

of each of us’’ (Cohen v. California, 403 U.S. at 24), and

to diminish licensee power to ‘‘monopolize a radio fre-

quency to the exclusion of his fellow citizens’? (Red Inon,

395 U.S. at 389).

These results, which are, of course, consonant with ‘‘the

purpose of the First Amendment to preserve an uninhibited

marketplace of ideas in which truth will ultimately pre-

vail, rather than to countenance monopolization of that

market, whether it be by the Government itself or a private

licensee’? (Red Lion, 395 U.S. at 390), are accomplished

rey ay tat ae MOT FM RES en Ra ets PROPS eer oer SARA

without trenching upon any interest of equal stature. For

the court below dealt only with the ‘‘permissibility of dis-

crimination ... against ‘controversial’ speech and in favor

of commercial and ‘non-controversial’ speech . . . within a

given block of advertising time . . . that already has been

opened up by the licensees themselves for direct broadcast

presentations by members of the public.’’ A. 475. It left

undisturbed ‘‘the licensees basic right to exercise judgment

and control in public issue programming”’ as to which ‘‘the

broadcasters own interests in free speech are very, very

strong’’ A. 464-465. Thus, the rights subordinated to the

interest in expanding the ‘‘marketplace of ideas’’ on the

mass media are the right of the broadcaster to sell, and the

right of commercial advertisers to buy, advertising time

free of government control. But those rights are not within

the ambit of protection afforded by the Constitution.

Valentine v. Chrestenson, 316 U.S. 52.

In contrast the Commission’s position does ‘‘abridge’’

rather than ‘‘enhance’’ free speech. It limits speech on con-

troversial public issues in the interest of those who wish to

broadcast purely commercial messages. This inverts the

balance struck by the Constitution. Compare New York

Times, 376 U.S. at 266, with Valentine v. Chrestenson, 316

U.S. 52. It is thus outside the range of options open to the

Government in promulgating rules of order. For, a ‘‘justi-

fication for selective exclusions from a public forum must be

. .. tailored to serve a substantial government interest.”

Mosley, 40 L.W. at 4879. New York Times and Valentine v.

Chrestenson establish that an interest in furthering com-

mercial advertising at the expense of editorial advertising

is not a ‘‘subordinating interest which is compelling”

(Bates v. Little Rock, 361 U.S. 516, 524). Thus ‘‘a flat ban

on paid public issue announcements”’ (A. 449) in advertis-

ing time open to commercial announcements is plainly an

impermissible ‘‘selective exclusion [of speakers] from a

public forum . . . justified by reference to content alone.”’

Mosley, 40 L.W. at 4878. And, of course, this misapprehen-

sion of what the First Amendment is all about compounds

the already substantial difficulties inherent in assuring that

the scarce communications resource of the airwaves is

utilized in a manner which ‘‘give[s] suitable time and

attention to matters of great public concern’? (Red Lion,

395 U.S. at 394). For, depending on the time presently

allotted to commercial advertisements, it provides 40 or 50,

rather than 60, minute hours for the presentation of the

variegated First Amendment speech which the ‘‘public”’

has a ‘‘right .. . to receive’’ (id. at 390), despite the fact

that the premise of federal regulation is that ‘‘even if the

entire radio spectrum is utilized . . . there [is] room for

| only a few’’ of those ‘‘who hope to communicate by radio’?

(id. at 388). Finally, the Commission’s view is completely

at odds with this Court’s admonitions in Red Lion that

licensees have ‘‘no right to an unconditional monopoly of a

scarce resource which the government has denied others

the right to use’’ (id. at 391), that there is ‘‘no sanctuary in

the First Amendment for unlimited private censorship

operating in a medium not open to all”’ (id. at 392), and that

the ‘‘rights of free speech of a broadcaster . . . does not

embrace a right to snuff out the free speech of others”?

(td. at 387). For, the Commission’s inaction here entrenches

the monopoly position of licensees by allowing them to

“snuff out’’ the free speech rights of editorial advertisers

through the practice of a clearly unconstitutional form of

OO EE METI E NIE: LI SELLE TE GEILE Fe NENT GE AE |r cay Sipe ASS

‘‘eensorship’’ based on ‘‘content alone’’ (Mosley, 40 L.W.

at 4878).

3. The broadcasters and the Commission join in arguing

that the Communications Act does sanction ‘‘a total exclu-

s[{ion of] controversial public debate from broadcast adver-

tising time’’ (A. 449) ‘‘in the context of the safeguards

that the Fairness Doctrine affords the public’’ (Gov. Br.

p. 40).

But §315 of the Act ‘‘obligat[es]’’ broadcasters ‘‘to

operate in the public interest and to afford reasonable

opportunity for the discussion of conflicting views on issues

of public importance.’’ ‘‘The ‘public interest’ in broad-

casting clearly encompasses the presentation of vigorous

debate of controversial issues of importance and concern to

the public.’’ Red Lion, 395 U.S. at 385. Section 315, in other

words is the statutory expression of Congress’s determina-

tion that the radio and television media shall be regulated

so as to ‘‘function consistently with the ends and purposes

of the First Amendment”’ (id. at 389). In implementing the

commands of that section the Commission is, therefore,

mandated to maximize constitutionally protected free

speech to the fullest feasible extent.

As already noted (pp. 7-11 supra), effectuation of this

duty in the area of program time involves the most sub-

stantial and sensitive difficulties because it entails choices

between competing First Amendment claims. For this

reason, or perhaps others, the Fairness Doctrine does not

contemplate that licensees will be required to cover any

particular issue of public importance, or indeed of the full

range of ‘‘problems which beset the people’’ (Red Lion,

395 U.S. at 394) to the optimum point. It sets a minimal

‘standard of broadcast responsibility, leaving to the licen-

see’s ‘best judgment and good sense’’ the ‘‘subjects that

should be considered, the particular format of the programs

to be devoted to each subject, the different shades of opinion

to be presented, and the spokesmen for each point of view.”’

Report on Edttorializing, 13 FCC 1249, 1251. Thus, this

standard has ‘‘taken on effective meaning only in the most

extreme cases of broadcaster irresponsibility.’’ A. 471,

n. 35. Certainly then, the promulgation of the Fairness

Doctrine cannot be said to exhaust the Commission’s re-

sponsibilities under § 315. The fact that a public issue, or a

range of public issues, has been ‘‘covered’’ may justify the

determination that other matters should be allowed to come

to the fore in order to promote variegated broadcast pro-

gramming. It provides no justification, however, for allow-

ing licensees to subordinate the rights of editorial adver-

tisrs to those of commercial advertisers. For their decision

to do so serves no free speech interest. Instead it makes a

“desert”’ out of a potential public interest message ‘‘oasis.’’

Cf. A. 465.

It is equally plain that § 153(h) of the Act, providing that

“‘a person engaged in radio broadcasting shall not ... be

deemed a common carrier,’’ does not, as the Government

and broadcasters claim, cut against the decision below. As

the Government itself recognizes, this provision was added

on the ground that common carrier status would require

licensees, who initiated ‘‘discussion of [a] question affect-

ing the public’’ to “give all their time to that kind of dis-

cussion or no public question could be discussed’? (Gov.

Br. p. 41, quoting 61 Cong. Rec. 12502, 12504). Thus Con-

gress’s concern was that a requirement to accommodate all

“i SO IE a NLeD Ee TENSE EL Ee OE SEES LAL, | LTR IEC Bar ye weg mea

wa :

who wished to speak would so strip broadcasters of their

right to make editorial judgments that the interest in

diversified programming would suffer. But under the de-

cision below ‘‘broadcasters would retain wide ranging con-

trol’’ (A. 483); they would not be required to accept all

‘ public interest messages that are submitted, or any par-

ticular message (A. 482). Indeed, the instant cases do not

deal with program time at all. They deal with advertising

time, and nothing in the lower court’s decision requires

broadcasters to expand advertising time to the detriment of

programming. Moreover, in light of this Court’s decision in

Red Lnon, it is plainly extravagant to argue, as the Govern-

ment does, that any rule, no matter how limited and justi-

fied, which ‘‘enjoin[s] ... the licensee .. . from exercising

journalistic judgment” is contrary to §153(h). Gov. Br.

p. 43. For Red Lion, 395 U.S. at 390-395, validated the

Commission’s ‘‘personal attack’’ and ‘‘editorialization’’

rules, not simply the Fairness Doctrine. And those rules

cut more deeply into the journalistic judgments of broad-

casters than the limited regulation of advertising time

suggested by the court below.

In Red Lion, as here, the broadcasters argued that a

ruling which effectuated the free speech rights of non-

licensees created prohibitive administrative problems. This

Court, rejecting that contention, replied that this ‘‘possi-

bility is at best speculative,’’ that ‘‘in the past’’ the doctrine

in guestion ‘‘has had no such overall effect,’’ and that ‘‘if

experience with the administration of these doctrines indi-

cates that they have the net effect of reducing rather than

enhancing the volume and quality of coverage, there will be

time enough to reconsider the constitutional implications”

. (395 U.S. at 393). The ‘‘spectres of chaos, grossly imbal-

anced programming and financial disaster’ (A. 486) ad-

vanced in the instant cases are no more credible than those

found insufficient in Red Lion.

The court below charged the Commission with the task of

“‘develop[ing] ‘reasonable regulations’ . . . requiring that

some ... editorial . . . advertising . . . be accepted”’

(A. 484). That responsibility is plainly no more onerous

than the comparable task—to develop the rules governing

expressive activity on the streets and other public places—

which this Court has assigned to far less expert agencies in

its decisions in Cox v. New Hampshire, 312 U.S. 569, and

its progeny. Indeed, it may well be more manageable since

the factors to be evaluated in the broadcasting context are

more nearly comparable. Certainly it is less taxing than

the highly sensitive regulatory burden the Commission has

assumed for itself in developing and explicating the con-

trols on licensee programming decisions in the Fairness

- Doctrine. And, looking to the past as a guide, the court

below noted: ‘‘Although many broadcasters already do

allow editorial advertisements on the air, we have not been

shown one reason, drawn from their experience, to suggest

that chaos has resulted.’’ A. 484. Moreover, the rule laid

down by the lower court closely parallels the principles

stated by the Commission in United Broadcasting Co.,

10 F.C.C. at 417-518. Obviously the Commission believed

itself competent to deal with the problem then. There is no

reason to believe it is less competent now. For its retreat

from United Broadcasting in the instant eases is supported

by technical arguments of law, and not by concrete examples

of practical difficulties experienced under that precedent.

SE NS OLE ETE LTR ILE OBEN NE NOTA YE TEL TINIAN TON on sey ant ene

The situation here is thoroughly comparable to that pre-

sented in Phelps Dodge Corp. v. NLRB, 313 U.S. 177. There

the NLRB challenged a court of appeals decision on the

ground that to ‘‘apply the abstractly just doctrine’’ decreed

‘*would put on the Board details too burdensome for effec-

tive administration’’ (313 U.S. at 198). Justice Frankfurter

replied: :

‘‘Simplicity 6f’administration is thus the justification

for [the NLRB’s position] ... But the advantages of a

simple rule must be balanced against the importance of

taking fair account, in a civilized legal system, of every

socially desirable factor in the final judgment. The

Board, we believe, overestimates administrative diffi-

culties and underestimates its administrative resource-

fulness.’’ Ibid.

The contentions that the decision below will lead to

‘*grossly imbalanced programming and financial disaster’’

(A. 486) rest on an even less substantial foundation. To

be sure, since the subject here is paid broadcast time the

rule contended for requires that those who wish to initiate

the dialogue on matters of public importance during

advertising time must be able to pay their way. But the

fact that there are some who may not be able to afford to

take advantage of this opportunity does not justify the

present improper and unconstitutional discrimination

against those who can. The argument to the contrary is

no better than the proposition that New York Times, 376

U.S. 254, should have been decided in favor of Mr. Sullivan

because it expanded the rights of those who were able to

not. The critical point is that the decision below, like the

decision in New York Times, vastly increases the opportu-

-nity for ‘‘uninhibited, robust and wide open ... debate’’

(376 U.S. at 270). Moreover, since it is a debate on public

issues that the First Amendment seeks to encourage, théte

is ample room for the Commission to set limits on the

amount of time ‘‘one group or the representatives of one

particular narrow viewpoint’’ (A. 485) may buy, either in

total, or in any given hour or day. The principles of debate

also require that both sides be heard. Thus, we believe that

it is implicit in the entire scheme of broadcast regulation

enunciated by this Court in Red Lion, 395 U.S. at 389-392,

“that if editorial advertisements are accepted on one side

of an issue, then broadcasters must also accept at least

some advertisements on the other side of the issue, free

of charge if necessary. See Cullman Broadcasting Co., 40

F.C.C. 576 (1963).’’ A. 486. This obligation, of course,

blunts the cutting edge of the argument that the decision

below unfairly favors the well-to-do.

This does not mean that a rule requiring licensees to’

accept some editorial advértisement should cost broad-

casters a single dollar of lost revenue. The argument here

is that broadcaster discrimination against public interest

massages in the sale of advertising time should be prohib-

ited; and not that licensees should be required to subsidize

this method of speech. Thus, if experience demonstrates that

carrying editorial advertisements entails significantly high-

er costs, because of the Cullman doctrine, or for other rea-

sons, and thus generate a lower return, broadcasters should”

be allowed to reflect this fact in their rate structure. Obvi-

ously, neither this suggestion, nor those advanced by the

court below (A. 483-488), are the final answer. The ultimate

determinations are for the Commission, But one point is

plain. The alternatives which have been offered demonstrate ,

that there is nothing to the view that this problem is beyond

rational solution once the Commission sets its best efforts

to solving it.

4. The Commission on the one hand, and the broadcasters

on the other, advance mutually inconsistent arguments,

whése common object is to sweep all the chessmen from

the board.

The Commission objects: ‘‘The decision of the court of

appeals in. this case substantially encroaches upon [the

_ Commission’s] responsibility. In effect it transfers the

making of basic policy judgments from the Commission to

the courts.’’. Gov. Br. 26. To begin with, this argument

grossly exaggerates the scope of the decision below. Here,

as below, the Commission ‘‘apparently misunderst[ands] ~

the narrowness of .the issue’’ and the ‘‘modest’’ nature of

the ‘‘reform’’ decreed. A. 482. The lower court was scru-

pulous to respect the right of the Commission to choose as

long as it demained within the ‘‘range of choices’’ (Gov.

Br. p. 36) open to it under the Act and the Constitution.

‘‘TWle leave the Commission and licensees broad latitude

to develop ‘reasonable regulations’ which will avoid any

possibility of chaos and confusion.’’ A. 484. The lower

court’s decision was no judicial usurpation, but the exer-

cise of the responsibility imposed on the courts by the

judicial review provision of the Communications Act, which

the DNC and the BEM invoked after the Commission denied

them relief. It should go without saying that that respon-

sibility did not abate, nor the lower court’s jurisdiction

lapse, because the Commission, after deciding these cases

on the merits and without any suggestion that complex

__ Se ae ne ee ee a ee

practical, rather than purely legal, issues were involved,

belatedly instituted a rule making proceeding while they

were sub judici. See Gov. Br. pp. 5-20. Indeed, the prospect

that the Commission may ultimately issue a rule accentuates

the need for an authoritative exposition of the governing

statutory and constitutional principles. As the Government

concedes, ‘‘when the Commission formulates regulations for

encouraging free discussion over the airwaves, it must act

consistently with the First Amendment and . . . whether it

has done so depends not only on the objective but also on

the means adopted to achieve it.’’ Gov. Br. p. 35. For ‘‘the

right of the public to receive suitable access to social, politi-

eal, esthetic, moral, and other ideas and experiences, which

is crucial here . . . may not constitutionally be abridged

either by Congress or by the FCC.’’ Red Lion, 395 U.S. at

390 (emphasis supplied). The court below did no more, and

~ no less, than to exercise the high judicial function of con-

fining the Commission’s discretion within Constitutional

bounds.

- In light of the Commission’s assertion of power to regu-

late the subject to this lawsuit to the exclusion of the courts,

it is rather startling to find the broadcasters arguing that

their choices as to who shall speak are beyond all regulation.

This argument is foreclosed by this Court’s response to

the broadcasters’ insistence that the Fairness Doctrine they

now embrace, was unconstitutional. For in Red Lion, 395

US. at 389-392, the Court held that the First Amendment

required, and mot simply permitted, governmental regula-

tion of programming decisions by licensees. The broadcast-

ers were subject to the First Amendment with respect to

programming not simply because they received some benefit

from the Government (cf.Moose Lodge v. Irvis, ........ US.

ones , 40 L.W. 5127) but because the Government was in-

volved with the very activity alleged to be unconstitutional

(cf. Powe v. Miles, 407 F.2d 73, 81 (C.A. 2, Friendly, J.).

That activity, there as here, was the exclusion, by the force

of criminal sanctions (4 301 of the Act), of all persons who

do not have broadcast licenses, or who are not permitted to

speak by a licensee. This is the source of the licensees’

‘‘monopoly of a scaree resource which the Government has .

denied others the right to use.’’ Red Inon, 395 U.S. at 391.

The same sanctions which prevented Mr. Cook from reply-

ing to the personal attack on him which generated the Red

Inon litigation (see 395 U.S. at 371-372), foreclose the DNC

and the BEM from broadcasting their message of public

importance without the consent, voluntary or involuntary,

of a licensee. Whatever there may be in this case which

is left open after Red Lion—and we do not believe it is

anything of principle—it is certainly no longer open to the

broadcasters to argue that their decisions as to who shall

speak in advertising time are outside the First Amendment.

GEREN SONG RT BEN PIN RT YMA

CONCLUSION

For the foregoing reason, the decisiorf of the court below

should be affirmed.

Respectfully submitted,

J. ALBERT WoLuL

General Counsel, AFL-CIO

Rosert C. Mayer

LAuRENCE GoLp

736 Bowen Building

875 Fifteenth Street, N.W.

Washington, D.C. 20005

Tuomas EK. Harris

Associate General Counsel, AFL-CIO

. 815 Sixteenth Street, N.W.

Washington, D.C. 20006

August, 1972

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.