THS LIB? 1' RY Michigan state . University This is to certify that the thesis entitled A CRITICAL EXAMINATION OF THE PROHIBITION AGAINST EDITORIALIZING BY NONCOMMERCIAL BROADCASTERS presented by Donald John McKay has been accepted towards fulfillment of the requirements for Master Qf AI CS degree in Journalism m Major professor Date November 14, 1977 0-7639 GD Copyright by Donald John McKay 1977 A CRITICAL EXAMINATION OF THE PROHIBITION AGAINST EDITORIALIZING BY NONCOMMERCIAL BROADCASTERS BY Donald John McKay A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF ARTS School of Journalism 1977 Accepted by the faculty of the School of Journalism, College of Communication Arts and Sciences, Michigan State University, in partial fulfillment of the requirements for the Master of Arts degree. qur£-¢73L--‘~y/’ r . fl . Director of The51s ABSTRACT A CRITICAL EXAMINATION OF THE PROHIBITION AGAINST EDITORIALIZING BY NONCOMMERCIAL BROADCASTERS BY Donald John McKay Section 399(a) of the Federal Communications Act prohibits noncommercial broadcasting stations from edito- rializing. This thesis discusses questions of public policy and constitutional law raised by the editorializing ban, and concludes that the prohibition is both contrary to public policy and unconstitutional. Though primarily_concerned with noncommercial broad- casting, the thesis has serious implications for commercial broadcasters, who from 1941 to 1949 were subject to a simi- lar editorializing ban. This prohibition, imposed by the Federal Communications Commission, was lifted as a matter of administrative policy rather than constitutional law. Its legality was never determined. Chapter I describes noncommercial broadcasting in Amer- ica. Chapter II reviews governmental control of commercial and noncommercial broadcast editorializing. Chapter III ex- amines policy considerations. Because most noncommercial licensees are governments or government instrumentalities Donald John McKay (e.g., state universities), it examines whether governments have a "right" of speech, and concludes that they do. Chap— ter IV analyzes the problem in terms of constitutional law. ACKNOWLEDGEMENTS Thanks to Dr. George Hough III, who kept me at the Michigan State University School of Journalism, to the late Professor W. Cameron Meyers, who made my stay there inter- esting, and to Professor John Murray, who made it worthwhile; to Tracy Westen, of Los Angeles, California, a public inter- est attorney who helped expand my horizons to encompass the world of electronic media and first encouraged me to pursue the subject of this thesis; to Professor Vince Blasi of the University of Michigan Law School, who together with John Murray alternately whetted and sated my desire to understand the First Amendment and media law; to Professor Thomas Muth of the Michigan State University Department of Telecommunica- tion and Professor Lee Bollinger of the University of Michi- gan Law School for their constructive guidance on this project; to Julie Miller, for her enthusiastic support and encouragement; and to Mom. ii TABLE OF CONTENTS Page INT RODUCT ION O O O O O O O . O O C O O O O O C O O O O 1 CHAPTER I. AN OVERVIEW OF NONCOMMERCIAL BROADCASTING IN THE UNITED STATES . . . . . . . . . . . . . 3 II. THE ON-AGAIN, OFF-AGAIN STORY OF BROADCAST EDITORIALIZING . . . . . . . . . . . . . . . . 19 III. THE MERITS OF REPEALING S399 AND RECOGNIZING A GOVERNMENTAL RIGHT OF SPEECH . . . . . . . . 37 IV. CONSTITUTIONAL ANALYSES . . . . . . . . . . . . 68 BIBLIOGRAPHY O O O O O O O O O O O O O O O O O O O O O 80 iii INTRODUCT I ON Section 399(a) of the Federal Communications Act, as amended, prohibits noncommercial broadcasting stations from editorializing.1 This ban originated in the Public Broad- casting Act of 1967.2 The question of its validity raises a number of difficult issues of public policy and constitu- tional law, but on balance it appears to be both unconstitu- tional and contrary to the public interest. Though this thesis is primarily concerned with non- commercial broadcasting, the problem has serious implica- tions for commercial broadcasting. For a period from 1941 to 1949, commercial broadcasters were subject to a prohi- bition on editorializing similar to the present restrictions on noncommercial broadcasters. This prohibition was imposed by the Federal Communications Commission, and it was lifted as a matter of administrative policy rather than constitu- tional law. The legality of the prohibition was never deter- mined. Theoretically, therefore, the FCC has the power to reimpose this censorship of editorial expression at any time on commercial broadcasters. 1The statutory provision, in its entirety, states: "No noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for public office." 47 U.S.C. §399(a). 247 U.S.C. §§39o-399; 81 Stat. 365. l The central focus of this thesis is the limited issue of the validity of 5399. The resolution of this question, however, also affects four general areas which are implicitly dealt with throughout. They are (l) the rights of broadcast- ers, (2) the nature of First Amendment rights in the context of mass communications media, (3) the relationship between government and media, and (4) the status and role of noncom- mercial broadcasting in America. It is hOped that the information and arguments in this - thesis will assist a court in deciding to rule S399 unconsti- tutional, or encourage Congress to repeal the editorializing prohibition. CHAPTER I AN OVERVIEW OF NONCOMMERCIAL BROADCASTING IN THE UNITED STATES The American system of broadcasting is predominantly commercial-~it depends on advertising for support, and appeals primarily to mass audiences.l It cannot, or at least does not, satisfy the needs or interests of cultural, social and political minorities. It does not assume a significant edu- cational role, per se. Its programming is heavily weighted towards pOpular entertainment. And, it reflects for the most part majoritarian values. In short, it sells what the great- est number will buy. Other types of socially useful, but less profitable programming are left to noncommercial educa- tional broadcasting stations. This should not be surprising, since broadcasting is essentially like any other regulated industry in this "free-enterprise" society. The profit in- centive which leads entrepreneurs to pour capital into broad- casting generally is almost by definition absent in the non- commercial setting. This is readily seen by comparing the 1These two factors--dependence on advertising and appeal to mass audiences--are of course intimately related. This is particularly true for television. Radio (and newspapers) can more easily cater to minority segments of the market. The development of cable technology, however, may be eliminating any such distinction. 4 explosive growth of commercial broadcasting with the sluggish deve10pment of noncommercial broadcasting. Both had their origins in the earliest days of radio, but the educational institutions, state agencies, and private foundations which supported most noncommercial stations simply did not have the resources to develop these heavily capital-intensive enter- prises. Recognizing, on one hand, the tremendous potential for public good inherent in this alternative system of broadcast- ing, and, on the other, the tremendous financial barriers to its development, the federal government acted on two fronts to protect noncommercial educational broadcasting and to stimulate its growth. First, through the FCC, it reserved channels or broadcasting frequencies so that they would not all be snatched up by commercial interests while prospective or nascent noncommercial operators struggled with financial preparation. Second, through Congress, it provided apprOpri— ations for facilities and equipment, for production and dis- tribution of high quality programming, and for studies to help coordinate and improve future uses of the broadcast media. Before going into specifics of these governmental pro- grams, some background is in order to explain what is meant by "noncommercial educational broadcasting" and related terms. What kind of stations are we talking about? How many? Who supports them? This will be a necessarily summary overview of a complex and fast-developing area. The terms "public" broadcasting, "educational" or 5 "instructional" broadcasting, and "noncommercial" broadcast- ing are often used interchangeably. Although these concepts do overlap considerably it is obvious that they embody diverse connotations ranging from classroom instruction to cultural and political alternatives to normal commercial broadcasting fare. Part of the confusion stems from the fact that these different functions, such as instruction and alternative pro— gramming, are sometimes performed by the same licensee. But most of it stems from the fact that they are all lumped to- gether for jurisdictional and regulatory purposes of the FCC, vis-a-vis commercial broadcasting. The Federal Communications Act of 1934, as amended by the Public Broadcasting Act of 1967, defines a "noncommercial educational broadcast station as: a television or radio broadcast station, which . . . is eligible to be licensed or is licensed by the Com- mission as a noncommercial radio or television broad- cast station and which is owned or operated by a pub- lic agency or nonprofit private foundation, corporation, or association, or (B) which is owned and operated by a municipality and which transmits only noncommercial programs for educational purposes.2 Educational television and radio programs are defined as those "which are primarily designed for educational or cultural pur- poses."3 The definitions help identify some parameters, but are not too illuminating otherwise. But, they are important for present purposes because 5399 applies only to these "non- commercial educational broadcast stations."4 247 U.S.C. 5397(7). 347 U.S.C. 5397(9). 4A couple related categories on the fringe of "noncom- mercial educational broadcasting" should be noted. First, a small number of colleges, universities, community groups and 6 More helpful are the distinctions suggested by the Carnegie Commission on Educational Television:5 All television, commercial television included, provides news, entertainment, and instruction; all television teaches about places, people, animals, politics, crime, science. Yet the differences are clear. Commercial television seeks to capture the large audience; it relies mainly upon the desire to relax and be entertained. Instructional tele- vision lies at the Opposite end of the scale; it calls upon the instinct to work, build, learn, and improve, and asks the viewer to take on responsi- bilities in return for later rewards. Public tele- vision, to which the Commission has devoted its major attention, includes all that is of human other nonprofit corporations have acquired channels autho- rized as commercial which they use for educational pur- poses, operating either on a profit or nonprofit basis. See, Public Television, A Program For Action: The Report of the Carnegie Commission on Educational Television (New York: Harper & Row, 1967), p. 21. Cited hereafter as Carnegie Report. See also, Sol Taishoff (ed.), 1977 Broad- casting Yearbook (Washington, D.C.: Broadcasting Publica— tions, Inc., 1977), p. A-7. The best example of these is WNDT in New York. These stations are functionally identi- cal to many noncommercial stations, and their significance as exceptions is minimal. A larger and more significant group which falls out- side the FCC's category of "noncommercial educational broad- casters" is found at the purely instructional end of the spectrum. This primarily includes closed circuit television and instructional television fixed service (ITFS) systems. More than a thousand closed circuit installations are serv- ing public and private education, industry and government. Carnegie Report, p. 21. ITFS is a point-to-point service Operating on frequencies higher than regular TV broadcasting; it cannot be received by the general public. It is useful as a tool for in-school instruction and is particularly val- uable to communities with no educational station. ITFS sys- tems reach over a million students. These systems are more like cable, and, while subject to FCC jurisdiction, they are not covered by the statutory definition of "broadcasting." U.S., Congress, House, Committee on Interstate and Foreign Commerce, Public Television Act of 1967, 90th Cong., lst Sess., 1967, H.R. Rep. No. 572, pp. 23-24. See also, 1977 Broadcasting Yearbook, p. A-7. 5The Public Broadcasting Act of 1967 drew heavily on the proposals of the Carnegie Commission, particularly the idea of an independent Corporation for Public Broadcasting. 7 interest and importance which is not at the moment appropriate or available for support by advertising, and which is not arranged for formal instruction. Public TV, directed toward the general public, and instruc- tional television, dealing primarily with formal instruction, constitute two parts of a single whole.7 The same distinc- tions are generally useful with reference to noncommercial radio. There are presently 252 noncommercial educational tele- vision stations in Operation in the United States (97 VHF and 155 UHF). By comparison, there are 710 commercial TV sta- tions (513 VHF and 197 UHF). There are 804 noncommercial FM radio stations currently on the air, as compared with 2,767 commercial FM stations and 4,463 AM radio stations.8 (Vir— tually all noncommercial educational stations are FM, although a handful of AM stations are noncommercial.) It is difficult to obtain figures showing how many of these stations are "edu- cational" and how many "public" but at least for television, some rough approximations are available from the Carnegie Report. The problem with these figures is that they deal only with television and are ten years old. At the time they were compiled, there were only 124 noncommercial stations; today there are more than twice that number. Nonetheless, 6Carnegie Report, p. l. 7Ibid., p. 15. The terms "public," "educational," and "noncommercial" broadcasting are often used interchangeably in this thesis. Where they are meant to refer to a specific concept, their usage will be in accord with the distinctions made by the Carnegie Commission. 81977 Broadcasting Yearbook, p. A-7 (Table). there is no reason to believe that the pattern of ownership described in the report has changed significantly, since the figures come at least four years afteg the first big spurt in building prompted by the passage in 1962 of the Education- al Television Facilities Act.9 The report showed that the 124 stations fell into four distinct categories:10 a) school stations (21), licensed to school systems, primarily used for elementary and secondary education; b) state stations (27), licensed to state boards of education or similar state agencies, often hooked into state networks, used primarily for primary and secondary education; c) university stations (35), licensed to public colleges and universities, used for continuing educa- tion and other programming related to university func- tions, sometimes used for instruction in television and radio; d) community stations (41), licensed to nonprofit corporations (except WNYC-TV, licensed to New York City). These are normally found in metropolitan areas and are the largest, best financed stations. The four categories relate to the Commission's concept of "public TV" on an ascending scale, with "community stations" being closest to its ideal notion of public television. Al- though radio may follow a similar pattern, it seems reasonable to expect that noncommercial radio licensees may be much more heavily oriented toward the "public" rather than the "educa- tional" end of the spectrum. Television is both inherently and relatively better suited as an instructional medium than radio, so it is only logical that most "educational" broad- casting is televised. The number of noncommercial stations actually on the air 947 U.S.C. §§39o—397; 76 Stat. 64. 10Carnegie Report, pp. 21-22. constitutes only part of the picture. Not all frequencies or channels available to noncommercial broadcasters are in use. The Federal Communications Act authorizes the FCC to allocate frequencies11 and grant licenses12 according to the public interest, convenience and necessity. Applications for commer- cial broadcasting licenses are filled on a "demand" basis. When a frequency or channel is available in a given area, it is awarded to the best qualified applicant who meets Commis- sion standards. No consideration is given to whether the channel might better be used in the future. Many of the ear- liest experimental broadcasters were noncommercial. By 1925, 13 While the number of educational groups held 171 licenses. unassigned frequencies was large and the state of the art primitive, there was little problem. But, as the profit-ma- king potential of broadcasting became apparent, frequencies were quickly captured by capitalists. Primarily because of the increased competition, most of the original educational broadcasters were no longer operating when the Federal Com- munications Act was enacted in 1934.14 The Act (in §307(c), now omitted) directed the FCC to study a proposal that Con- gress allocate a fixed percentage of radio facilities for nonprofit programs. The FCC recommended against such a stat- utory allocation, but recognized the need to develop educa- tional broadcasting and committed itself to that end. Up to 1147 U.S.C. §303(c). 121bid., §3o7. 131977 Broadcasting Yearbook, p. A-6 l4Ibid. 10 this time, "broadcasting" for all practical purposes meant AM radio. After a period of development of FM radio in the 1930's, and after extensive public hearings, the FCC author- ized commercial (as Opposed to experimental) FM Operations to begin on January 1, 1945. At that time, it allocated enough of the broadcasting spectrum for 40 channels to FM radio, and designated 35 for commercial stations and five for noncommercial educational stations. In 1945, the FCC increased the number of channels to 100, providing 80% for commercial and 20% for noncommercial stations.15 Since the advent of FM radio, AM frequencies have not been allocated to educational stations. However, there are still about two dozen noncommercial radio stations Operating on AM frequen- cies Obtained during the pre-FM years.16 When commercial television began to flourish in the 1940's, it became apparent that comprehensive planning was necessary to deal with such problems as competition for scarce channels, the role of educational TV, and technologi- cal advances like the introduction of color. .The FCC stopped granting licenses from 1948 to 1951 so it could assess the situation, and when the freeze was lifted two changes 15Since the frequencies on which FM operates do not or— dinarily reflect back to earth from ionospheric layers (sky- waves), it is possible for many scattered FM stations to use the same frequency without interference, day or night, unlike the AM band. The AM principle is used in both "standard" ra- dio broadcasting and the picture portion of television. FM is used both in FM radio and the sound portion of television. Ibid., pp. A-6, A-7. 15Ibid., p. A-6. 11 significantly affecting noncommercial television were made. First, the FCC enlarged the total number of channels avail- able for television broadcasting by Opening up the UHF por— tion of the spectrum, and second, it exclusively reserved channels for noncommercial broadcasting. Recognizing the fact that noncommercial broadcasting takes longer to develop, the FCC set aside channel assignments in 242 communities for it. Of this total, 80 were VHF channels and 162 UHF. Forty- six were assigned to educational institutions.17 Since then, the number of reservations has increased to 633 (117 VHF, 516 UHF).18 The first noncommercial educational television station, KUHT in Houston, went on the air in 1953. The first state educational television network was established in Alabama in 1955.19 Congressional Support The reservation of channels by the FCC was a necessary first step, but standing alone it was insufficient to stimu- late the growth of public TV. It insulated prospective non- commercial broadcasters, who would otherwise be vulnerable for lack of financial resources, from commercial competition for scarce channels. But it did not address the fundamental problem--lack of resources. Congress took the first major step toward solving this problem in 1962 when it passed the l7Ibid., p. A-7. 18U.S., Congress, Senate, Committee on Commerce, 90th Cong., lst Sess., 1967, S.Rep. No. 222, p. 2. 191977 Broadcastinngearbook, p. A-7. 12 Educational Television Facilities Act. In the five years from the passage of this bill in 1962 to its expiration in 1967, the number of ETV stations under construction jumped from 82 to 183, the number of states with no educational television station was reduced from fifteen to three, and the number of peOple served by educational TV was increased from 105 to 155 million.20 However, the 1962 act was inade- quate in a number of important ways. First, it provided assistance only for television, not radio, stations. Second, it made money available in matching grants only for facilities and equipment, but not for programming. Third, when it ex- pired, the areas which were still not served included primar- ily those least likely to be able to develop educational broadcasting on their own--rural areas and small communities. Finally, the act did not provide for networks or intercon- nection devices so that these stations could assist one another and combine for mutual advantage. These problems were dealt with in the Public Broadcast- ing Act of 1967. This by far is the most important legisla— tion to deal with noncommercial broadcasting. Drawing upon the recommendations of two major foundation studies21 and experts from all over the country, the Act was a serious effort to develop noncommercial broadcasting as a vital, qual- itatively excellent educational and cultural force in American 205. Rep. No. 222, p. 2. 21The Carnegie Report, and Hidden Medium: A Status Re- port on Educational Radio in the United States, prepared for the National Association of Educational Broadcasters. See also the proposals of the Ford Foundation submitted to the FCC. 13 society. It sought to develop noncommercial broadcasting's inherent potential as an educational medium--in every sense-- and as a complementary alternative to commercial broadcast- ing. The Act contains three major parts. Title I author— ized a large sum to further aid construction of broadcast facilities, this time covering both radio and television. Title III provided for a comprehensive study of the future of instructional media. Title II, the most significant and subsequently most controversial provision, established the Corporation for Public Broadcasting to foster quality pro- gramming. Public broadcasting would never be considered a viable alternative by viewers, it was felt, as long as its programming was inferior in quality to that offered by com- mercial stations. The Corporation was authorized to imple- ment these goals in a number of ways. It could make grants directly to local stations, enabling them to develop creative and innovative programming and strengthen their Operations. It could contract with program production centers, local stations, or individuals for production or procurement of programs for national or regional distribution to lOcal non- commercial stations. It could develOp interconnection faci- lities to aid in distribution and transmission of programming to and among local stations or groups of stations. Two basic themes which permeated the legislative history of the Act were "independence" and "localism." There was a great fear that government subsidized media would be subject to partisan influences and could become a tool for government 14 propagandizing. Related to this was the fear that local stations, supposed to be the "bedrock of the system,"22 would lose their autonomy to a centralized system and local community needs Would be ignored. (Assistance in providing quality programming) should in no way involve the government in pro- gramming or program judgments. An independent entity supported by federal funds is required to be free of political pressures. The Corporation for Public Broadcasting was accordingly established as a nonprofit, private corporation. It is not subject to any government agency. It is forbidden to engage in partisan political activities, and its programming must be objective and balanced. To insure localism, it was stip- ulated that local stations are free to accept or reject pro- gramming offered through the Corporation as they see fit, and further, that the Corporation may not own or Operate any net- work, local station, interconnection or production facility, or cable system. The effects of the Act on the growth of noncommercial media were, as expected, tremendous. Public radio, for exam- ple, which had not been a beneficiary of the 1962 Act, in four years increased the number of peOple it was reaching from 72 to 137 million, increased the hours of actual broad- casting time nearly 300%, and increased the number of full- service stations with basic professional staffs by over 90%.24 225. Rep. No. 222, p. 7. 23Ibid., p. 4. 24U.S., Congress, Senate, Committee on Commerce, Hearings on S. 1090 Before the Subcommittee on Communications of the Senate Commerce Committee, 93rd Cong., lst Sess., 1973, ser. 93-10, p. 216. 15 The range and quality of programming also increased dramatically, as expected, but at the same time it became the focus of controversy. Most of the problems centered a- bout the Public Broadcasting Service (PBS), an independent, nonprofit program distributor for public TV stations, funded by the Corporation for Public Broadcasting. PBS obtains vir- tually all of its programs from local stations, and its pri- mary function is the selection, scheduling and distribution of those programs to its member stations. Any noncommercial educational station is eligible for PBS membership, and at present 142 TV stations are part of this national program service and interconnection system.25 The controversy centered upon two main issues, both linked with PBS. First, it was said that PBS was becoming a "fourth network" because of the amount of programming it supplied and the large number of stations it served. Second, it was charged by the Nixon administration that public TV's programming was biased. The administration cited as exam- ples of bias newsmen Robert MacNeil and Sander Vanocur, and such programs as Elizabeth Drew's "Thirty Minutes With . . . ," "Bill Moyer's Journal," "Washington Week in Review," and "Black Journal." The Nixon administration consistently Opposed long- range funding for public television. When Congress failed to authorize appropriations for only one year instead of two, 25A fuller explanation of PBS' organization and function is beyond the SCOpe of the present discussion. For further information, see Hearings on S. 1090, ibid., pp. 406~421. 16 President Nixon vetoed public broadcasting appropriations in June, 1972. Congress finally agreed to support a single year funding plan. Shortly thereafter, the president of the Corporation for Public Broadcasting resigned, and was replaced by the deputy director of the United States Information Agency. During the next year, the feud continued, but there were char- ges that the new management of the Corporation for Public Broadcasting was influenced too much by administration pres- sures, and was threatening the independence and integrity of public television by cancelling programs dealing with contro- versial issues, such as "Bill Moyer's Journal," William Buck- ley's "Firing Line," "America '73," and "Washington Week in Review." A power struggle developed between the Corporation and PBS over control of scheduling and programming. The Cor- poration over a period of time took from PBS many of its pro- gram scheduling functions and refused to provide funds for renewing programs which it said lacked "balance and objectiv- ity." The administration, through Clay Whitehead of the White House Office of Telecommunications Policy, again urged only a one year apprOpriation unless local stations exercised more autonomy. In the end, the Corporation and PBS patched up their differences, private foundations picked up the tab to renew many of the controversial public affairs programs, and the Congress authorized, and President Nixon signed, a two year appropriation to carry public broadcasting through 1975. This overview of recent developments in public broadcasting is 17 necessarily sketchy. It helps put the S399 problem in con- text, however, since the nature and extent of governmental involvement in the noncommercial media is the central issue which must be addressed in analyzing the editorializing ban. Differences Between Commercial and Noncommercial Broadcasting To complete the overview of noncommercial radio and TV it is useful to note the differences between regulatory treatment of noncommercial and commercial broadcasters.26 First, as noted above, certain television and FM radio chan- nels are reserved exclusively for noncommercial educational stations. Even if there is no noncommercial applicant for it, the reserved channel may not be used for commercial broadcast- ing. This is true though there may be no commercial channels available for would-be licensees. Second, all educational stations are exempt from many of the operating requirements imposed on commercial stations. They have no minimum hours of operation, are not required to pay filing fees, and are not required to provide any particular community with city- 27 Additionally, they are not required to as- grade signals. certain community needs and interests or provide programming to meet them, as commercial stations are. However, this may be changing. Noncommercial stations are required to make and 26See generally, Columbia Montour, Inc., 47 F.C.C.2d 21 (1974). 27Ibid., at 22-23. l8 retain transcripts of programs in which "any issue of public importance" is discussed, which commercial stations are not required to do. This requirement has recently been found invalid, however, precisely because of this unequal treatment of commercial and noncommercial broadcasters.28 Finally, commercial stations are free to editorialize; noncommercial stations are not. Section 399 of the Federal Communications Act prohibits noncommercial stations from editorializing or supporting or opposing any candidate for public office. 28See pp. 75-77, infra. CHAPTER II THE ON-AGAIN, OFF-AGAIN STORY OF BROADCAST EDITORIALIZING The right to voice opinions about controversial issues and to take partisan stands has always been considered an essential political liberty, protected by the First Amend- ment's guarantees of freedom of speech and press. The Supreme Court in the landmark New York Times case spoke of our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-Open." Summarizing long-settled decisions enunci- ating "the general proposition that freedom of expression upon public questions is secured by the First Amendment" the Court stated: "The maintenance of the opportunity for free poli- tical discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an Opportunity essen- tial to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg_v. California, 283 U.S. 359, 369. . . . "It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public insti- tutions," Bridges v. California, 314 U.S. 252, 270 . . . and this opportunity is to be afforded for "vig- orous advocacy no less than "abstract discussion." NAACP V. Button, 371 U.S. 415, 429. lNew York Times v. Sullivan, 376 U.S. 254, 270 (1964). 19 20 While these freedoms are usually thought of as indivi- dual rights, they clearly apply also to groups and institu- 2 The majority of newspapers tions, particularly news media. and commercial broadcasters in the United States do editori— alize.3 Ostensibly, there is no question that they have the right to do so. However, noncommercial broadcasters are pro- hibited from editorializing or supporting or Opposing candi- dates. It is important to understand why this is so and to ask whether the ban is justified, because if noncommercial broadcasters have no First Amendment rights, or if their rights can be easily abridged, then we must know what makes commercial broadcasters any less vulnerable. To put the problem in context, therefore, it is necessary to examine the history and extent of the right of commercial broadcasters to editorialize before looking at the ban on noncommercial editorializing. 2United States V. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Near v. Minnesota, 283 U.S. 697 (1931); see gen- erally, NAACP v. Button, 371 U.S. 415 (1963). 3A nationwide survey taken in 1974 by Broadcasting Pub- lications, Inc. indicated that over sixty per cent of the AM, forty-four per cent of the FM stations and fifty per cent of television stations editorialize at least occasionally. 1974 Broadcastinngearbook, p. 37. These results are somewhat questionable because of the methodology. The data were Ob- tained from questionnaires returned by local stations. The Yearbook says that these were sent to all radio and TV sta— tions. Obviously if they were sent tO—HOncommercial stations, which are prohibited from editorializing, and if some of these noncommercial stations were among the respondents, then the actual figures for commercial stations will be much higher. 21 Editorializiggpgy Commercial Broadcasters Commercial broadcasters today are allowed, and in fact encouraged, to editorialize. This freedom is essentially limited only by the requirements of the Fairness Doctrine.4 The broadcaster's right to editorialize, however, was not clearly established until 1949.5 Before then, it was gener- ally assumed that editorializing was prohibited by the ngt flower decision,6 in which the FCC declared that it was con- trary to the public interest for broadcasters to be advocates. There is no conclusive evidence to show the extent to which broadcasters prior to 1941 were using their facilities to 7 champion their causes and candidates. But the FCC made clear in Mayflower that any broadcaster who was had a "serious mis- conception of its duties and functions under the law," 4It is sometimes argued that the Fairness Doctrine is not really a "limit," but rather an "expansion" of First Amendment rights. Whatever the merits of this claim, it is Obvious that broadcasters do Operate under constraints not imposed on newspapers. 5See, Report on Editorializing By Broadcast Licensees, 13 F.C.C. 1246 (1949). 6Mayflower Broadcasting Corp., 8 F.C.C. 333 (1940). 7Prior to the Mayflower decision, broadcast editorial- izing was apparently assumed to be permissible, see 2 Socolow, Law of Radio Broadcasting §448 (1939), cited in Note, The Mayflower Doctrine Scuttled, 59 Yale L.J. 759, n.28, (1950). Early cases reflect a confusion over whether the FCC objected to broadcasters expressing their own views, or merely failing to adhere to the Fairness Doctrine; besides, the cases in which the Commission took action were so flagrant that the distinction was largely irrelevant. See, e.g., Trinity Meth- odist Church, South v. F.R.C., 62 F.2d 850 (1932), cert. ge- nied 288 U.S. 599 (1933). 22 because "the public interest can never be served by a dedica- tion of any broadcasting facility to the support of his own partisan ends."8 The Mayflower case involved a comparative hearing to decide which of two applicants would be assigned a radio fre- quency-~Mayflower Broadcasting Corp. or Yankee Network, Inc. (WAAB), the existing licensee. The FCC found, with regard to Mayflower, that the license request should be denied because it was financially unqualified and had made misrepresentations to the Commission. The important part of the case involved Yankee: The record shows without contradition that be— ginning early in 1937 and continuing through Sep- tember 1938, it was the policy of Station WAAB to broadcast so-called editorials from time to time urging the election of various candidates for po- litical office or supporting one side or another of various questions in public controversy. In these editorials, which were delivered by the edi- tor-in-chief of the station's news service, no pretense was made at objective, impartial report- ing. It is c1ear--indeed the station seems to have taken pride in the fact--that the purpose of these editorials was to win public support for some person og view favored by those in control of the station. The FCC stated that the licensee had severely miscon— strued its functions and had acted contrary to the public interest: A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to support the candidacies of his friends. It cannot be devoted to the support of principles he happens to regard most favorably. In brief, the broadcaster cannot be an advocate.1 10 8Mayflower, at 339-340. 91bid., 339. Ibid., 340. 23 Yankee did not dispute the Commission's holding on First Amendment or public interest grounds. Instead, it sub- mitted uncontradicted affadavits that it had aired no editor- ials since September 1938, and did not intend to in the fu- ture, and that "the station (had) no editorial policies."11 In response to a question from the bench, Yankee's counsel stated: There are absolutely no reservations, whatsoever, or mental reservations of any sort, character or kind with reference to those affadavits. They mean exactly what they say in the fullest possible ampligications that the CommisSion wants to give to them. Relying on these unequivocal representations and considering the potential loss of service to the public, the FCC approved Yankee's renewal application. But the message to other broad- casters was clear--"refrain from editorializing, or your li- cense is in jeopardy." The holding was not appealed, and was 13 never challenged formally by any other licensee. The May- flower decision is now, and was at the time, generally llIbid. 12Ibid., 340-341. The tendency to make abject apologies for exercising what were at least arguably First Amendment rights, rather than to fight the issue and assert these rights, is not uncommon in broadcast regulation cases. See, e.g., the cases involving "indecent or offensive Speech." By promising to sin no more, the broadcaster is quite likely to retain his valuable license, as it did here. 3Yankee did not appeal, of course, because it retained its license. Also, it was probably not in a position to say much after its representations to the court. One station, WHCU in Ithaca, N.Y., did request a clarification; see, Comments, Mayflower Rule-~Gone But Not Forgotten, 35 Cornell L.Q. 574, n.8 (1950), but the petition was apparently subsumed in the general inquiry preceding the issuance of the 1949 Editorializing 24 construed as completely prohibiting editorializing or parti- san endorsements by licensees. However, some have argued that it could be construed more narrowly. These arguments take two main forms. First, it is claimed that the Mayflower decision was never intended to prohibit the licensee, ag 3g individual, from editorializing--only the station was affected. The distinction was based on the fact that institutional good will and prestige would inevitably lend greater weight to views expressed as those of the station than would be accorded the personal views of the licensee. This narrowing construction makes sense logically and has credible support from then-FCC officials. However, one would have to see well to divine this distinction from the comprehensive language of the ruling, and it is extremely doubtful that it had much, if any, practical effect as a guide to licensee action. The other argument was that the Mayflower ruling did not ban editorializing, but merely emphasized the duty of the licensee to adhere to fairness and balance in the use of his facilities. This argument finds some support in the text, since references to editorializing were couched in terms of Report. There is some question of whether there would not have been a ripeness problem had broadcasters attempted to challenge the ruling without violating it and thus jeopardizing their licenses. See Jaffe, Ripeness and Reviewable Orders in Admin- istrative Law, 61 Mich. L.Rev. 1273, 1291 (1963). See also, Editoralizing Report, separate views of Commissioner Jones, p. 1261, n. 1. Jones assumed that broadcasters would have to jeopardize their licenses in order to challenge the ruling, but chided them for not taking these risks for freedom of the press, as newspapers had so often done. 25 overall fairness,14 but the strong, clear language set out above leaves little doubt that this interpretation is wrong. At least, it was too subtle to be seized upon by broadcasters worried about protecting their licenses. The alternative to an absolute reading of Mayflower was confusion. In 1949, the FCC issued its Report on Editorializing By Broadcast Licensees15 to "clarify" the situation. There had been a great deal of debate, particularly within the industry, about the soundness of the Mayflower ruling. Industry repre- sentatives stated that 88 per cent of American broadcasters believed they should have the right to editorialize.l6 After a series of hearings in 1948 and a period of study, the FCC issued its report declaring that editorializing was not contrary to the public interest. The Commission grounded 14"Freedom of speech on the radio must be broad enough to provide full and equal opportunity for the presentation to the public of all sides of public issues. Indeed, as one licensed to Operate in a public domain, the licensee has assumed the obligation of presenting all sides of important public questions, fairly, objectively, and without bias. The public interest--not the private--is paramount. These requirements are inherent in the conception of public inter- est set up by the Communications Act as the criteria of regulation. . ." Mayflower, at 340. 1513 F.C.C. 1246 (1949). 16Statement by A.D. Willard, Jr., Executive Vice- President of the National Association of Broadcasters, in In the Matter of Editorializing by Broadcaster Licensees 4, FCC Docket No. 8516 (1948), cited in Mayflower Rule-~Gone But Not Forgotten, at n.6. A poll published in the December 22, 1947 issue of Broadcasting Magazine, p. 15, showed that of those who felt they should have a right to editorialize, sixty-five per cent felt that there should be an obligation to provide fair opportunity for expression of differing opinions, twenty-nine per cent opposed this View. Mayflower Doctrine Scuttled, at n.25. 26 its decision in the Fairness Doctrine. The report said that the public's interest is paramount to rights of broadcasters or the government, and that this interest is best served by enabling people to hear diverse views on important issues. Therefore, it said, broadcasters have "an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities." They must play "a conscious and positive role in bringing about balanced presentation of the Opposing vieWpoints."17 In light of these fairness requirements, the FCC said, there was little danger in allowing the licensee to be one of the voices in the debate: In the absence of a duty to present all sides of controversial issues, overt editorialization by station licensees could conceivably result in serious abuse. But, where, as we believe to be the case under the Communications Act, such a responsibility for fair and balanced presentation of controversial issues exists, we cannot see how the open espousal of one point of view by the licensee should necessarily prevent him from affording a fair opportunity for the presentation of contrary positions or make more difficult the enforcement of the statutory standard of fairness upon any licensee.18 The FCC, suggesting that a licensee could always influence the public through its control over programming, said: "Certainly the public has less to fear from the open partisan 19 The Commission also than from the covert propagandist. rejected the argument based on the good will and prestige of the station. It said that assuming these factors did give l7Editorializing’Repprt, p. 1251. 18Ibid., p. 1254. lgIbid; 27 greater force to stations' opinions, this was no different from the increased weight given to opinions of other indivi- duals or institutions which had earned good will.20 It is significant that the report purported to be only a clarification of the existing policy, and as such did not expressly repudiate the Mayflower doctrine. Its frame of reference was the public interest standard, which the FCC defines, and little mention was made of constitutional issues. There is no reason apparent from the report why a majority of the FCC could not at any time decide that it is no longer . . . . . . . . 2 . 1n the public interest to permit editorializing. l ThlS was the principal point made in the vigorous separate opinion by Commissioner Jones. He said that the freedom to editor- ialize was a constitutional right and accused the FCC of sidestepping this issue: I believe that any document establishing (the right to editorialize) requires a reversal of the Mayflower Broadcasting Co. decision, 8 FCC 333, which fully and completely suppressed and prohibited the licensee from speaking in the future over his facilities in behalf of any cause. All licensees considered this Mayflower decision as applicable to each of them. I believe the Commission thus violated the first amendment and that the Commission should 201bid., p. 1253. 21It is interesting that this report, the foundation of the broadcasters' right to editorialize, was not signed by a majority of the Commission. Two of the seven commission- ers did not participate, one dissented, and one issued separate views sharply disagreeing with the report's analysis (or lack thereof). 28 acknowledge the unconstitutionality of the Mayflower decison and rule that the licensee may speak.22 Jones also objected to conditioning the right to editorialize on the fairness obligation discussed by the authors of the Report. Despite the extent to which the Fairness Doctrine has been ingrained in our consciousness' as a sine qua non of American broadcasting, this objection makes a great deal of sense. The Fairness Doctrine does insure against ex- cesses and abuses by licensees, so it is useful for quieting critics of the right to editorialize. However, it is not constitutionally necessary--the right to editorialize exists apart from it as a first amendment freedom, and is not con- tingent on the fairness doctrine. To say that the right exists in the absolute, of course, means that 9393 someone otherwise qualifies as a licensee, the right to editorialize attaches. This is like saying that the right of a newspaper owner to editorialize is absolute, theoretically, but in reality depends on his access to a press. In summary, it should be observed that the views ex- pressed in the Report itself, rather than Jones' views, presumably define the current status of commercial broad- casters' editorializing rights. A synopsis of these is found in the conclusion of the Report: "Licensee editorialization is but one asPect of expression by means of radio. Only insofar as it is exercised in conformity with the paramount 22Editorializing Report, separate views of Commissioner Jones, p. 1257. 29 right of the public to hear a reasonably balanced presentation of all responsible viewpoints on part- icular issues can such editorialization be considered to be consistent with the licensee's duty to Operate in the public interest."23 It is clear from this discussion that editorializing rights of commercial broadcasters may be more tenuous than commonly believed, at least in theory. Nonetheless, as a practical matter, they are firmly entrenched. Editorializing By Noncommercial Broadcasters Prior to 1967, noncommercial broadcasters were presumably subject to the same restrictions, and entitled to the same rights, as commercial broadcasters. Few, if any, actually editorialized24 but they had every right to do so. Then, in 1967, Congress passed the Public Broadcasting Act,25 providing massive financial assistance for facilities and programming. As part of that act, Congress prohibited all noncommercial educational stations from editorializing or supporting or Opposing candidates for public office. The prohibition ap- parently does not apply to licensees or station personnel expressing their views BE individuals26 nor does it preclude "balanced, fair, and objective presentations of controversial 23Ibid., p. 1258. 24H. R. Rep. 572, p. 20. 25See pp. 10-13, supra. 26H. R. Rep. 794, 90th Cong., lst Sess. at 12 (1967) (hereinafter cited as Conference Report). 30 issues."27 Why was $399 enacted? The legislative history is sparse, but it appears that the primary motivation was "an abundance of caution." The Senate version of the bill, which was adopted by the conference committee, Originally contained no restrictions on editorializing by licensees. The prohibition was added to the Senate bill by the House Committee on Inter- state and Foreign Commerce. In the House bill, where the ban originated, it appeared first as an adjunct to the prohibition against political activity by the Corporation for Public Broadcasting. The Corporation was the major innovation of the Public Broadcasting Act. It was given broad powers and nearly complete independence. There was wide-spread concern in Congress that it be kept strictly nonpartisan so that there would be no political or governmental influence over programming. The legislators were also concerned that the Corporation might exercise ideological and politicized control over the local stations: One of the fundamental reasons for establishing the Corporation is to remove the programming activity from governmental supervision. The educational stations must not be permitted to become vehicles for the pro- motion of one or another political cause, party, or candidate. It is assumed that the normal checks and balances in our political system will insure that this principle will be constantly safeguarded by interested citizens. In the same manner that the bill strives to insulate the Corporation from governmental control, the bill provides and the committee intends to see to it that the local educational broadcasting stations conduct 27 , Ibld. 31 their operagions without Corporation interference or control. 8 The Senate bill met these concerns about political indepen- dence and local autonomy by prohibiting the Corporation (1) from engaging in any partisan activity, endorsing candidates, or establishing political qualifications for personnel selection, and (2) from owning any network, local station, or production facility. It would seem that the objective of keeping local stations from being influenced by, or conduits for, any partisan activities of the CPB could be accomplished through these two prohibitions, plus "the normal checks and balances." Besides, the Fairness Doctrine is applicable to 29 commercial and noncommercial stations alike. Why, thenk was there any further restriction necessary? The answer seems to be simply that the House was not satisfied with these safe- guards and legislated on the side of caution: Considerable testimony was heard that no non- commercial educational station editorializes. Out of abundance of caution, the bill provides that "no noncommercial educational broadcasting station may engage in editorializing or may sup- port or oppose any candidate for public office." It should be emphasized that this section is not' intended to preclude balanced fair and38bjective presentations of controversial issues. (Emphasis added). The House Report itself gives no further explanation of the reasoning or motivation behind the ban. A statement of 281bid.. pp. 19-20. 29Accuracy in Media, Inc. v. F.C.C., 521 F.2d 288, 295- 296 (D.C. Cir. 1975), cert. denied 425 U.S. 939 (1976). 30H.R. Rep. 572, p. 20. 32 "separate views" attached to the report, however, makes it clear that at least eight committee members would have found the Public Broadcasting Act "totally unacceptable" without the prohibition on editorializing (or without two other pro- visions, one providing for a bipartisan board of directors for the Corporation, the other limiting funds available to any one state to 8.5% of the total.31 By far the most revealing discussion of the legislative intent behind §399 is found in the House floor debate on the Act. Congressman William Springer, Of Illinois, the ranking minority member Of the House Interstate and Foreign Commerce Committee, was one of the leading advocates of the various safeguards against political influence and centralized con- trol over public broadcasting. The dialogue between Springer and Congressman Jones of Missouri is particularly illuminating. Springer spoke of the editorializing prohibition as one means 31Ibid., Separate Views, p. 57. Six other committee members dissented from the majority's report establishing the Corporation. They felt, however, that the safeguards built in by the majority took care of most of the potential prob- lems with bias. Their statement may shed some light on the evils sought to be remedied by the editorializing ban and related provisions. Their concern was primarily with "pub- lic" as opposed to "instructional" broadcasting: An oversimplified definition would call this phase (of the bill) "cultural uplift." It is vis- ualized by its most enthusiastic supporters as the great and overshadowing element in noncommercial broadcasting. It will be the highbrow answer to mundane commercialism. It will sparkle, it will soar, it will also sear and singe. It will be a force for social good (as Mr. Friendly and his fel- low enthusiasts see the social good.) It will bite at the broad problems of national policy and make timid men (such as Presidents, Governors, and leg- islators) cringe. It could, and in the opinion of some witnesses, should and will crusade. 33 of combatting "the potential (of public broadcasting) to become either a giant, Government-controlled prOpaganda machine or a fourth national network": The bill in its original form excluded the Cor- poration from actual political activity. This did not go far enough to make sure that stations indi- vidually, or in concert, such as a State network, might not take on issues and be the center of poli- tical activity in the broadest sense. Although commercial stations can and are encouraged to edi- torialize, the committee considered it inapprOpri- ate for educational stations to do so, and the bill forbids it.32 He went on to remind his colleagues that noncommercial sta- tions are completely subject to the Fairness Doctrine, in- cluding equal time provisions. Jones took issue with the need for a total ban on editorializing: I think that you are limiting that station or excluding them [gig] from engaging in one of the most valuable things that could come from such a station. Your commercial stations are reluctant to provide the time for editorializing, particu- larly on community projects and things like that. As long as you can have editorializing, and safeguard that by offering equal time to the oth- er side of the question, I do not think that would affect what you are trying to reach.33 Springer was not persuaded: On the question of editorializing, I did not want any station to get in the position which oc- curred in my State last year, where they took the TV station and endorsed on candidate for Congress and took the radio station and endorsed the other. In the first place, I do not think theyyought to be in the position of endorsing or rejecting any candidate for office. I say that for commercial as well as educational and noncommercial TV. I do 32113 Cong. Rec. 26387 (1967). 33Ibid. 34 not think they ought to be in that field. We lay ourselves open to this kind of pos- sibility if we do not close this lOOphole now. (Emphasis added.) 34 Springer went on to further discuss the Fairness Doctrine, noting that he wanted to keep tabs on documentaries to in- sure that they adhered to fairness and did not stray into editorializing through advocacy. Jones expressed doubt that 5399's terms were clear enough that stations could know what kinds of programs were or were not prohibited, and said he feared that "we are going to limit (noncommercial stations) in the presentation of information which I think audiences should have."35 Springer responded: The only thing I can say in reply to the gentleman, if the gentleman is saying editorials are the kind of information they should have, we do prevent it. Jones, still unsatisfied, reiterated his belief that oppor- tunity for rebuttal.would be sufficient safeguard: "In other words, I have confidence in the public as long as they get "37 both sides of the question. A few moments later he con- cluded the exchange still troubled by the SCOpe of the pro- hibition: It is a question of what we determine and consider to be editorials. . . . I would like to see the educational station editorializing to the extent of advocating improvements in the community and things like that. At the same time, I am not arguing with the gentleman about the equal-time business, . . . (b)ut I do not think we should Ibid., pp. 26387-26388. 351bia., p. 26388. 36Ibid. 37Ibia. 35 limit editorializing without making some legis- lative history as to what we mean by it. The editorializing ban was referred to further throughout the debate on the Act,39 but nothing significant was added concerning its purpose. The conference committee retained the House's amendment prohibiting editorials in the final version of the legisla- tion, and clarified it somewhat: The managers on the part of the Senate accepted the House provision when it was explained that the prohibition against editorializing was limited to providing that no noncommercial educational broad- casting station may broadcast editorials represent;O ing the opinion of the management of such station. Throughout the legislative discussion of the editorializing ban, it Often seemed that the need to control the Corporation for Public Broadcasting and the desire to keep local stations independent were ambiguously interwoven. This was reflected again in the end by the conference report. After stating the above quoted clarification about the scope of the ban, and reiterating the applicability of the Fairness Doctrine, the Report reads: These provisions are consistent with the re- guirements . . . that programs or series of pro- grams of a controversial nature which are made available by the Public Broadcasting Corporation must adhere strictly to objectivity and balance. 41 38Ibid. 39The remarks of the following representatives referred to the prohibition: Keith and Joelson, both at 26391; Watson at 26392 and 26405; Brown at 26393 (including a lengthy ex- cerpt from Orwell's 1984); Brotzman at 26394; Fascell at 26397; McClure at 26399-26400; and Springer at 26407. 40Conference Report, p. 12. 41Ibid. 36 Nonetheless, while the basic rationale may be ques- tioned, the intent of Congress is unmistakable and it is law--all noncommercial stations are prohibited from editor- ializing and from supporting or opposing candidates for public office. CHAPTER III THE MERITS OF REPEALING S399 AND RECOGNIZING A GOVERNMENTAL RIGHT OF SPEECH All things that are legally permissible are not necess- arily beneficial from the standpoint of public policy. This chapter discusses whether it would be desirable to abandon §399 and allow noncommercial broadcasters to editorialize. First, some general policy considerations are discussed. Then we focus on the heart of the problem--the relationship between the government and noncommercial broadcasters. Final- ly, we look at two specific statutory provisions dealing with this relationship which might have important implications for §399—«the Hatch Act and the sections of the Internal Revenue Code applicable to nonprofit corporations. General Policy Issues The following are arguments which might be made against S399. First, as a general proposition, this country is com~ mitted to the principle that "debate on public issues should be uninhibited, robust and wide-open."l Anything which de- tracts from this principle is highly suspect, particularly governmental action in the form of a prior restraint. Section 399 is a classic example of a prior restraint-—the government 1New York Times v. Sullivan, 376 U.S. at 270-271. 37 38 has used its licensing power to compel the broadcasters to relinquish their rights to speak out on controversial issues or to endorse or oppose candidates for public offices. This is censorship of political speech, and eviscerates the First Amendment. So long as it stands, broadcast journalism is at the mercy of legislative whim. Second, the rights of the broadcaster are not all that is at stake. The First Amendment protects the rights of view- ers and listeners as well. In fact, the FCC and the courts have held that the rights of the public are paramount to the 2 The government rights of the government or the broadcaster. cannot safeguard these rights of the public by silencing the media. Such paternalistic protection insults the intelligence of the citizenry. People are capable of judging source credi- bility and can compare Opinions expressed through one medium with those in competing media. Third, as the FCC said, the overt partisan is to be pre- ferred to the covert propagandist.3 The noncommercial broad- caster, like any other media manager, can always influence the public through his control over programming. This problem was recoqnized and well stated by Congressman Watson during the House floor debate over the Public Broadcasting Act: Let us be realistic. An editorial is not very persuasive or influential. Let them go ahead and editorialize. Give me the right to control program content, and others can editorialize all they want 2Red Lion Broadcasting, Inc. V. F.C.C., 395 U.S. 367 (1969). 3 See p. 26, supra. 39 to, but I will influence the thinking of the Amer- ican public more with the programs or with peOple I have appearing on the programs. The American public knows editorials are sub- jective, but they believe regular programs are objective. These remarks highlight the fact that an editorializing ban would have little practical effect because it would be diffi- cult or impossible to actually keep the licensee's views off the air. Therefore, the broadcaster should be encouraged to openly discuss his Opinions and ideas instead of being for- bidden to do so. This will enable to audience to better eval- uate the station as a source of information. It may also in— duce the station to take more care to maintain at least the appearance of fairness and balance. Finally, noncommercial broadcasters' editorials may be qualitatively different from those on commercial stations in at least three ways: (1) With no pressure from advertisers, noncommercial stations may deal more candidly and forcefully with important issues of public concern. They will not have the same vested interests, and they need not fear direct eco- nomic reprisals. (2) Commercial stations are not only subject to influence by individual sponsors, but must also be forever conscious of maximizing their audience to maintain advertis- ing rates. Thus they are institutionally rewarded for cau- tious opinions and appeals to mass sentiment. Noncommercial stations would be more free to Speak for minority views, in- cluding those of cultural and fringe minorities. (3) Many 4113 Cong. Rec. 26392 (1967) 40 noncommercial stations are more likely to be in contact with innovative and creative ideas before they filter into the public domain. Those stations affiliated with a university or public interest research facility should have easier access to better researched, sound sources of information on which to base their Opinions. There are also, of course, general policy arguments against editorializing by noncommercial educational stations. For ex- ample, it may be argued that at least in "educational" broad- casting, editorializing has no place. This might be so for at least two reasons. First, it could be said that education should be value-neutral. But this is unrealistic, particu- larly with a government run public education system. Educa- tional systems are inherently value-laden. Rather than at- tempting to enforce sterility, educators should welcome the challenge to discuss innovative and challenging ideas. Edi- torials should accordingly pose no problem, but should instead enhance the educational process. This is by no means an ar- gument that educational broadcasters should or must editor- ialize, or that they could not very appropriately decide not to do so at all, but only a suggestion that such Speech need not be considered disruptive or detrimental to the educational process. Second, education is often considered a primarily passive experience. It could be argued that editorializing should not be allowed because the audiences would be caught off guard and would unchallengingly accept whatever they are told in this 41 context. This argument has major flaws. There is certainly a question of the degree to which the indictment of education is accurate. Most viewers of educational television can di- gest whatever partisan pills are slipped into their media diets, particularly when editorializing is labeled as such. People are generally smarter than they are given credit for. Particularly in the academic setting, they are constantly challenging the ideas presented to them, rather than passively accepting what they are told. Besides, commercial TV is at least as likely to lull viewers into a passive, receptive state conducive to accepting what is placed before them as is public television. A completely different argument is that commercial sta- tions will jeopardize their sources of community funding by editorializing. By taking stands on controversial issues, they can only lose support. Since most funding comes from sources other than the federal government,5 this may be a very real concern. However, it is little different from the factors commercial media, worried about advertising revenue, must figure into their calculus for deciding editorial poli- cies. This problem should not justify a blanket government ban on editorial expression; instead, each station should be left to act as its interests and phiIOSOphies dictate. Related 5"In FY1971, the federal share (of operating funds for local stations) amounted to only 13.6 per cent of total pub- lic radio income, and station representatives have gone on record as being opposed to more than about one third of their support originating from federal sources." Hearings on S. 1090, p. 217. See also, Carnegie Report, p. 250(Table 11). 42 to this is the argument that noncommercial stations, parti- cularly those associated with government agencies, universi- ties, or school systems, would exercise considerable self- censorship for "public relations" purposes, and would thus add nothing to the "marketplace of ideas" through editorials-- at least not enough to outweight the negative aspects. With- out disputing the premise, it seems fair to say that this is a frivolous argument and is fatally defective because it con- ditions freedom of the press on the estimated worth of the content. While the preceding arguments may be interesting and/or important (and may not be), they skirt the central issue of the whole §399 problem--the relationship between government and noncommercial broadcasting. The Relationship Between Government and Noncommercial Broadcasting Are noncommercial broadcasters really the equivalent of "the government"? Does it make any difference in terms of free speech rights how this question is answered? One ap- proach is to say that it does make a difference because if we find that noncommercial stations licensed to state agencies are to be equated with "government" then there is no need to go further because government has no "right" of free expres- sion. The other approach is to say that whether or not sta- tions are the equivalent of the government is immaterial be- cause even government has free speech rights. The crucial underlying question is obviously whether "government" has 43 rights as a communicator. Before addressing this issue, one important diversion will be made. It concerns those stations licensed to private nonprofit foundations. All the other categories of noncom- 6 mercial licensees have at least a prima facie relation to a government entity. For the private stations, however, the question of government speech rights is irrelevant, because they are not "government" in any realistic sense. These sta- tions should be entitled to the same free speech rights as any commercial broadcast licensee. The only grounds for asserting that they do not have these rights would be their government license, or their special status as noncommercial licensees, and their government funding. The §B§pcase7 discussed but did not decide the issue of whether or not a licensee, by virtue of its license, was to be considered "government" for state action purposes. It appears likely that they will not be. But even if they were, they should not be foreclosed from asserting rights as broadcasters against the government, since the state action test only deals with the rights of broadcasters against the public. The Court has held that the public's rights are paramount. The broadcaster's rights, however, while subservient to the public's rights (except as modified by CBS), are still 6See p. 6, supra. 7Columbia‘B‘roadcasting System v. Democratic National Committee, 412 U.S. 94 (1973). 44 paramount to the government's rights. Nor should the special circumstances of the noncommercial license make a difference.8 A noncommercial station licensee enjoys a number of advan- tages--typically, less stringent requirements--over commcer- cial licensees, but none of the differences are related to, or have any effect upon the editorializing question. In short there ought to be no question that private foundations and other nongovernmental licensees have clear First Amendment rights, which could be vindicated according to the analyses discussed in the next chapter, e.g., the unconstitutional conditions, compelling state interest, less drastic means, or equal protection tests. Aside from private foundations, all noncommercial 1i- censee are at least arguably government instrumentalities. These include school systems, state boards of education and other state agencies, public universities, and municipal corporations. It is clear therefore, that the central quest» tion is whether government has speech rights. If not, the matter is not completely foreclosed, but it becomes consi- derably more difficult to contest the editorializing prohi- bition. The government regulation would only need to be proven rational, that is, it must be a reasonable means of effecting a valid governmental purpose. This test is easy to satisfy. It could be argued that what must be weighed against the government's interest in prohibiting editorials 8See,'Community Service Broadcasting v. F.C.C., F.2d , 3 Media L.Rptr. 1063 (D.C.Cir. September 15, 1977), dis- cussed infra at pp. 45 is a national policy favoring free discussion of controver- sial ideas, etc., but without specific First Amendment pro- tection, this probably would not get far. One other argu- ment would be available to some of these licensees if govern- ment has no speech rights. They could claim that although they are licensed to government agencies, such as universities, they are not "functionally" government, because they exercise independent judgment and are operationally indistinguishable from commercial stations. This functional argument is a cor- ollary of cases like Mgpppgand §XEB§}O Mpppp was a case in which the Court held a company-owned town, technically "pri- vate property," to be the functional equivalent of an ordin- ary municipal corporation and thus subject to constitutional restraints against interfering with distribution of religious literature by a Jehovah's Witness. Eygpp held that the pub- lic character of a park willed to the City of Macon, Georgia by a former U.S. Senator, to be used by whites only, required that the park be treated as a public institution regardless of whether title under state law was technically in private or public hands. The Court looked at the reality of who con- trolled the park and the fact that it was operated for the public. These cases essentially say that the legal defini- tion of whether the property is "government" or "private" will not be conclusive when determining First Amendment rights; 9Marsh v. Alabama, 326 U.S. 501 (1946). loEvans V. Newton, 382 U.S. 296 (1966). 46 instead we must look to functional reality. In a closely analogous area, the courts have used this functional approach to drive a wedge in the claimed editor/publisher relationship which administrators have asserted to control the student press.11 Ultimately we must ask what the results would be if we assume that the government does indeed have free Speech rights. As a practical matter, it would be easy to stOp without reaching this stage, because empirically, state-li- censed stations do not editorialize, and did not before the 1967 ban. The only stations likely to assert the right are "public" broadcasters (e.g., the Pacifica Foundation stations), and there should be no real question that they have First Am- endment rights. The idea that the government may have free speech rights is in fact a somewhat scary notion. But fail- ure to explore this notion would be intellectually dishonest if based on a fear of what might result should such a concept gain wide acceptance. It is not easy to predict what would lie ahead if we take this road, though recently documented abuses by powerful government officials and novels such as Orwell's £293 give us cause for concern. Nonetheless, the way is not completely unmarked. On the side of practice, we have numerous examples of the government functioning as a communicator in the marketplace of ideas, both institution- llSee, e.g., Antonelli v. Hammond, 303 F.Supp. 1329 (D.Mass. 1970); Trujillo v. Love, 322 F.Supp. 1266 (D.Colo. 1971); Korn v. Elkins, 317 F.Supp. 138 (D.Md. 1970). 47 ally and through individudals, e.g., presidential Speeches, the United States Information Agency, noncommercial educa- tional broadcasting stations, the public school system, gov— ernment publishing houses. In terms of theory, we have at least one eminent First Amendment scholar who is apparently convinced that the gov- ernment does have free speech rights like private citizens.12 There are a number of questions involved in the issue of the government's right to Speak. These include: (1) Is it desirable that the government have these rights? What are the policy arguments for and against government communi- cation rights? (2) Does it make any difference whether we are talking about the federal or state government? (3) What is the source of this right of Speech? Is it the inherent power of the sovereign, or does it stem from the First Amend- ment? In the case of the state governments, does it stem from sovereign powers, First Amendment rights, or reservei powers of the states? The second and third questions are of course very closely related; the source of rights may in fact be one of the differences. First there is the question whether as a matter of policy it is desirable that government entities have speech rights. This inquiry is not merely apologetic; in an area of law as ambiguous as this, outcomes are often contingent on policy considerations. The law should be assumed to make sense and 12Thomas I. Emerson, The System of Freedom of Expression (New York: Vintage Books, 1970), p. 699. 48 have theoretical justification whenever possible. The fol- lowing are some of the reasons why government should have speech rights.13 First, government theoretically represents a majority of the people. (If the theory is not in accord with reality, this is not the place to start making corrections.) It must be free to effectuate the majority will, as it was electel to to do. If government did not have the Opportunity to inforn, to persuade, and to communicate its opinions, its powers would rest largely on force. Just as in the private sector, free debate and discussion of differences are important al- ternatives to violence and coercion. Next, the government can "enrich the marketplace" by contributing information, ideas and expertise which would otherwise not be available. This is related to the very im- portant premise that the "free marketplace of ideas" will be enhanced by the inputs of any and all participants. The First Amendment is designed to promote the fullest possible exchange, and countervailing views--not censorship--should be used to determine which ideas will prevail. When the gov- ernment is "just another participant" in the marketplace--in the system of freedom of expression--its "communication can be challenged on its facts, tested, criticized, countered, or . . A refuted by private expre551on."l‘ 13This discussion draws largely on Emerson, ibid., chap. XIX, "Government Participation in the System of Freedom of Expression." ~ 14Ibia., p. 712. 49 The goals of the First Amendment are furthered by in- creasing the dissemination of information and free exchange of ideas. The amendment only mandates that "Congress shall make no law . . . abridging freedom of speech, or of the press," and this seems to leave room for government expres- sion.' Certainly it contains no express prohibition. But there ape limits on the initial premise that government should have rights as a communicator. The most difficult issues in free speech law involve conflicting First Amendment claims of different parties, and especially conflicts be- tween various interests the First Amendment is designed to protect.15 The First Amendment rights of individuals may often be limits on the rights of government as communicator. For example, the government ought not monopolize an 16 e.g., the broadcasting important means of communication, spectrum. It is not easy to draw the line dividing proper use and monopoly, particularly so long as there remains a scarcity of channels. However, the problem of scarcity alone does not negate the right (duty?) of government to use pub- lic resources to meet public needs. The fact that the maxi- mum possible number of private entrepreneurs are not accomo- cated, or even that these private activities are for the 15See, e.g., CBS, supra; Miami Herald Publishing CO. v. Tornillo, 418 U.S. 241 (1974); and Brandywine-MainLine Radio, Inc., 473 F.2d 16 (D.C. Cir. 1972), cert. denied 412 U.S. 922 (1973). '———' '____—' 6However, if government does effectively exercise a monopoly, it must grant access, according to Emerson, p. 714. 50 purpose of expressing ideas and information, does not change this. An analogy should make this clear. If the government controlled large areas of forest and there were a shortage of newsprint, could newspapers or prospective publishers force the United States to give up its national forests because they are scarce resources in demand by private parties? The answer is not easy, but it seems that the government could preserve these national forests for public purposes to the disadvantage of the private media. The reason the answer is not simple is that shortages have occurred and are an ever- increasing problem, and the control of newsprint is in many countries an important mechanism of government censorship. At some point, it may well be that government reservation of timberlands for public purposes would raise serious First Am— endment questions. But the point made here is simply that scarcity alone--and our whole economic system is premised on scarcity--does not take away from the government the right to use resources for public purposes. Another possible limit would be that government may not abridge free speech through competition. Again, it is not easy to draw lines in the abstract defining how much or what kind of competition from government media would constitute abridgement, but this should be one important source of re- striction on the government's right to communicate. The First Amendment provides that Congress (the federal govern- ment) shall not "abridge," and the Fourteenth Amendment extends this to the states. Since private speakers could 51 abridge the free speech and press rights of other private speakers through competition, it is clear that individual rights are qualitatively different from those of the govern- ment. While government may have a right to speak, the rights of the public are paramount when there are conflicts. Another very significant qualification is that the gov- ernment can control its own speech or that of its agents. Thus, for example, the federal government can limit communi- cations by government agencies; the rights of the latter exist only at the sufferance of the former. "There is no real para- dox involved in invoking the First Amendment to restrict gov- ernment expression. The purpose of the First Amendment is to protect private expression, and nothing in the guarantee pre- cludes the government from controlling its own expression or that of its agents."17 Professor Emerson suggests a number of other limits on thegeneral speech rights of government. He says that govern- ment expression may not be used as a sanction for private ex- pression18 (this seems Open to question), and that government expression which injures other social interests, e.g., fair trial rights, may be curbed.19 He also believes government l71bid., p. 700. l8 19 Ibid., pp. 699-708. Ibid.p pp. 708-709. 52 should be prohibited from undertaking secret subsidization or authorship.20 Finally, Emerson cites two other salient limitations. First, he states that government expression should be limited to the sphere of government functions, and says by way of ex- ample that getting itself reelected is not a government func- tion.21 While this is certainly open to dispute, it may pro- vide a rationale for prohibiting the support or opposition of candidates by most government licensees. Second, he restates the axiom that no one can be compelled to listen against his will. This is the captive audience argument, and while it should not apply to "public" broadcasting, it may be peculiar- ly applicable to "instructional" broadcasting, where students are required to sit in front of the television screen for edu- cation. However, is this different from regular education? At this point, we are left with the initial premise that 'government should have speech rights, limited primarily by conflicting claims asserted by private speakers. But doesn't that expose us to the danger that the government will be a pervasive, extremely influential voice in the marketplace, exerting pressures on the citizenry heretofore known only in 20"The reasons that ordinarily make it an infringement upon the First Amendment rights to compel disclosure in the case of private communication have no application to the gov- ernment. Full disclosure of government authorship or assist- ance in expression would not in any way inhibit the govern- ment in its right to communicate." Ibid., p. 712. 211bia., p. 699. 53 totalitarian regimes or works of fiction? The honest answer to this question must be yes, just as the answer to similar questions about the potential for abuse of power by the Pen- tagon and the military establishment must be affirmative. But the fact that there is this potential does not negate the existence of the right, it only emphasizes the need for con- trol. The First Amendment is inherently a source of danger-- of divisiveness, of subversion, of freedom for the moneyed and the powerful to exert undue influence in the democratic pro- cesses. The problem of controlling these dangers is one of the ever present tensions in our system, and it is harder, perhaps, than the problem of controlling the potential harms of government Speech. The actions of government are control- lable by the governed. The government's right to speak--to operate the USIA, to set up educational broadcasting stations, to run government publishing houses-~15 the right of the peo- ple, since the government is the agent Of the people. The government's right to speak cannot be asserted against the people, i.e., it is subject to their control. As a practical matter, this means that Congress can control the communica- tion activities of the federal government.2 The check on the extent and power of these various media is Congress, and the corresponding bodies of state and local governments. If 22See, with respect to noncommercial television, Accuracy in Media, Inc. v. Federal Communications Commission, 521 F.2d 288 (D.C. Cir. 1975), cert. denied 425 U.S. 939 (1976). 54 the people do not want the government to communicate in certain areas or through certain media, they can effect these desires through their representatives. Imperfect as this may be as a means of control, it is our system of government. With the basis for the government's right to Speak thus established, we can now consider whether it makes any differ- ence whether these rights are asserted by the federal as Op- posed tO the state government, and examine the source of such rights. One might ask whether the federal government has any First Amendment rights, because arguably the Bill of Rights was enacted solely as a guarantee against the federal govern- ment. It could be argued that a clause could not at the same time protect the rights of the government as a speaker and protect the rights of other Speakers against the government. Although this is not necessarily so, logically, as a matter of history there is little question that the purpose of the First Amendment was the latter. Therefore it is likely that what Speech rights the federal government has stem from its powers as sovereign. The question of whether the federal government, if it has a right to Speak, claims this right by sovereignty or through the First Amendment is an interesting one theoretically. Maybe it is simply answered as suggested above. But in any event, it should be remembered that the central issue of this thesis, the rights of the noncommercial broadcasters, does not involve the federal government, but 55 rather the state and local governments which are licensees.23 Therefore, even if it is conceded or assumed arguendo that the federal government has no First Amendment rights, it need not be determinative of the issue unless state and lo- cal government instrumentalities are in the same posture. The case seems much stronger for state and local gov- ernments. The source of their speech rights might be three- fold--sovereignty, and related to this, reserved powers un- der the Tenth Amendment24 and finally, the First Amendment. Although the first two may be grounds for the right, they would probably fall in a conflict because the federal govern- ment has preempted the broadcast communications area. Of course this preemption does not go to the fundamental ques- tion of speech rights in general. These are incident to state sovereignty as much as federal sovereignty, at least within the confines of the respective functions of the vari- ous units of government. But would these reserved sovereign powers be adequate to assert against the federal government 23The federal government can control its own agents, but the state and local governments are not agencies of the federal government, and neither are the noncommercial sta- tions licensed to them. This does not mean that the federal government cannot exercise control over the speech or acti- vities of the licensees, only that it cannot do so on the agency theory. 24"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S., Constitution, Amend. X. 56 to abolish the editorializing prohibition? Probably not. The area of broadcast regulation seems thoroughly preempted by the federal government.25 An attempt to cut into parts of this comprehensive system of regulation on the basis of a general power inherent in the state's sovereignty in this situation would be futile. So, we are left to rely on the First Amendment. There is a strong case for the proposition that states have First Amendment rights. The Constitution is basically a compact between the states and the federal government. The argument that the First Amendment does not cover the federal government because it is meant to be a protection against the federal government is not applicable to the state or lo- cal governments. While normally we think of the Bill of Rights as protection for individuals, there is no reason that at least some of these rights could not apply to governmental units as well. For example, the federal government could not take the state's property without due process. Some provi- sions of the Constitution distinguish between citizens and other persons. Others apply to natural persons but not cor- porations. The First Amendment, however, has no qualifica- tions. The Supreme Court, in Bigelow v. Virginia, has at least indirectly recognized the right of a state to communicate with its citizenry when it observed that a state "may seek to 25State of Maine v. University of Maine, 266 A.2d 863 (Me.Sup.Jud.Ct. 1970). 57 disseminate information so as to enable its citizens to make better informed decisions" about matters affecting their health and welfare.26 More directly on point, a federal district court in Michigan, in a case involving the state's ability to require that certain information concerning out-of—state meat pro- ducts be made available to its citizen-consumers, has expli- citly stated, though in dicta, that states do have a right "akin to freedom of speech."27 The state in that case had asserted that the product information it sought to make avail- able to consumers was not "labeling" (which would have been preempted by federal labeling laws). Instead, the defendant state Secretary of Agriculture argued, the State of Michigan is simply exercising its sovereign freedom of speech by warn- ing its citizens of the inherent inferiority of the federal 28 . wholesome meat standards." The court noted that the notion that the state possesses a right to communicate is not often 26421 U.S. 809, 824 (1975). In Bigelow, the Court re- versed the conviction of a newspaper editor who had published an advertisement of an out-of—state organization offering assistance in Obtaining legal abortions. The Court held that the statute unconstitutionally infringed on the editor's First Amendment rights of free speech and press, which it said were not lost merely because a commercial advertisement was in- volved, where the advertisement conveyed information of po- tential interest and value to a diverse audience. 27American Meat Institute v. Ball, 424 F.Supp. 758, 770 (W.D. Mich. 1976). 28Ibia. 58 articulated, and is one which is "more difficult conceptu- ally" than the idea that consumers have a First Amendment right to receive information. Noting that the Fourteenth Amendment, by incorporating the First Amendment, provides a vehicle for citizens to as- sert free speech rights against the state, Chief Judge Fox observed in the American Meat Institute case that "this does not mean that the state cannot also exercise rights of its own so long as they do not conflict with those of the peo- 30 The court specifically uses as an illustration of ple." this principle the operation of a public broadcasting faci— lity by the state, noting that in this instance the state is acting in an area where freedom of expression is tradition- ally necessary and protected by the First Amendment. The court based its decision in this case, however, on other grounds. Assuming that we do not want the federal government to abridge speech or press rights of state and local government units, should state and local governments be able to abridge or control the speech of their own agents? As a general prop- osition they should have this right to control themselves and their agents, just as the federal government does. How- ever, there are two important limits on this right. First, 29See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). 30424 F.Supp. at 770. 59 the states' power to control the speech and press rights of their agents may in some instances be limited on the theory that these rights are federally created and guaranteed and the states are therefore obliged not only to reSpect them but also to affirmatively protect them.31 Second, where the federal government has preempted a field by comprehensive regulation as it has in the area of broadcasting, the permissible sphere of state activity may be severely proscribed. Thus in State of Maine v. University of Maine,32 the court held a state statute which prohibited use of the state educational television system for promoting or advancing any political candidate unconstitutional on the ground that it violated the supremacy clause of the Federal Constitution. The disputed Maine statute33 was enacted in 1963 and provided criminal penalties for violations. It stated in pertinent part: None of the facilities, plant or personnel of any educational television system which is supported in whole or in part by state funds shall be used directly or indirectly for the promotion, advertise- ment or advancement of any political candidate for any municipal, country, state or federal office or for the purpose of advocating or opposing any speci- fic program, existing or proposed, of governmental action which shall include, but shall not be limited to, constitutional amendments, tax referendums or bond issues. 31See Note, State Enforcement of Federally Created Rights, 73 Harv. L. Rev. 1551 (1960). 32Supra, n. 25. 3320 M.R.S.A. §2606. 60 The Maine court found that this statute inherently conflicted with the station's obligation under the Fairness Doctrine to afford a "reasonable Opportunity for the discus- sion of conflicting views on issues of public importance," and concluded: It would be impossible for the defendant to obey the rigid censoring requirements of the Maine statute and at the same time satisfy the "public interest" standard requisite for F.C.C. licensing. We conclude that 20 M.R.S.A., Sec. 2606 violates the provisions of Article VI, Cl. 2 of the United States and is therefore unenforceable. The court noted that the states still have a "valid surviving power" to protect their citizens in matters involv- ing their health and safety or to protect them from fraud and deception. They have no such valid interest, however, in "protecting them from the dissemination of ideas as to which they may be called upon to make an informed choice."34 The court also emphasized that provisions of the Feder- al Communications Act which prohibit censorship by the Feder- 35 and expressly forbid federal 36 al Communications Commission control over educational television broadcasting "cannot be deemed to enlarge the powers of the states to censor." The Maine court cites the case of Allen B. Dumont Labs v. Carroll,37 which held that when 47 U.S.C. S326 forbade the 34266 A.2d at 868. 36 3547 U.S.C. S326. 47 U.S.C. S398. 3786 F.Supp. 813 (D.C.Pa. 1949), aff'd. 184 F.2d 153, cert. denied 340 U.S. 929. 61 FCC the power of censorship that did not mean the states were left free to censor, since Congress had fully occupied the field.38 It is noteworthy that the Maine high court raises the question--albeit rhetorically and obliquely--whether S399 might violate the First Amendment--something no other court appears to have done. The court sets out the language of S399 and states: Whether or not this provision violates First Amendment principles need not concern us here. There is no suggestion that defendant has engaged or proposes to engage in either of the proscribed activities. Defendant has thus far remained ob- jectively neutral as between candidates ggd with respect to public, controver51a1 issues. In summary, state and local agencies, as broadcast licen- sees, have general First Amendment rights which can be assert- ed against the federal government. There remain a number of policy questions directly concerning the relationship between government and noncommercial media, but all except one have been adequately dealt with in other contexts. The remaining issue is the problem of control. When a commercial station takes a stand, we know whose views are being presented. Edi- torializing by noncommercial stations, however, presents many administrative difficulties stemming from the ambiguity of control. Who selects the topics? Who chooses which sides to take on issues—-the station management, or perhaps the head of the school or agency holding the license? When the licensee 38266 A.2d at 866. 391bid., at 868. 62 is a state agency, these questions have no easy answers. For example, could a university station be free from cOntrol over editorial policies by the university administration? If ana- logies can be drawn from school newspaper cases, which seem to drive a wedge in the theory that the administrators are the publishers and the papers' staffs merely the editors, then the campus station could exercise independence. But newspapers are not licensed, and the administrator's claim of control in the case of print media is not nearly as strong as when the university itself is the broadcast licensee. The managements of many university stations could respond to ad- ministration claims of control by arguing that they are func- tionally independent, but this is as much a factual question as a legal one. The issue of control is complex, but in light of the position that even the state agency has speech rights, its resolution should not affect the ultimate ques- tion of whether the editorializing prohibition should stand. The Hatch Act One problem which appears formidable from a distance and which was glossed over in the preceding discussion of govern- ment's power to control speech is the Hatch Act,40 which pro- scribes political activity by government employees. If the federal government can freely abridge the First Amendment rights of its employees, it seems a fortiori that it could limit editorializing by noncommercial broadcasters. The 405 U.S.C. S118(i) et seq., 53 Stat. 1147; 18 U.S.C. S594 et seq., 54 Stat. 767 (1964). 63 Supreme Court has consistently upheld the Hatch Act, most recently in 1973 in CSC v. Letter Carriers.41 These cases are troublesome, but they can be distinguished. The main dif- ferences between the Hatch Act and 5399 are their purposes and the nature of the governmental interests asserted. The Hatch Act is concerned with the employment relationship and the in- tegrity of government operations. It is designed to prevent the political exploitation of government employees, to improve efficiency of the service through maintenance of a "merit" system, and to promote impartiality in government administration.42 The Hatch Act itself was enacted in 1939, but it grew out of the Civil Service Act of 1883, which was designed to combat the evils of the Spoils system. The S399 prohibition, on the other hand, was enacted "out of abundance of caution," to rem- edy a hypothetical problem. Unlike government officials, broadcast licensees exercise no immediate control over others through their opinions, nor are they as vulnerable to repri- sals for those views. There is no indication that the Hatch Act was aimed at or should be concerned with the primary S399 problem--giving the government access to powerful propaganda tools. (There is some fear about the develOpment of political machines, but this is historically both a real and a different problem.) In Short, the Hatch Act simply deals with different 41United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); see also the companiOn case dealing with a state act, Broadrick v. Oklahoma, 413 U.S. 601 (1973). 42Emerson, p. 584. 64 problems than S399. The Court in CSC v. Letter Carriers says that the decision to uphold the Hatch Act does "no more than confirm the judgment of history" that it is "essential that federal service should depend upon meritorious performance rather than political service, and that the political influ- ence of federal employees on others and in the electoral pro- 43 The Court focuses on the employ- cess should be limited." ment relationship and efficiency of government service, and emphasizes the need for impartial execution of the laws. Although the Hatch Act was designed to remedy different problems, there are still many who question its necessity or validity, particularly in the area of "pure speech" rights. Broadcasting editorials is an exercise of "pure speech, as opposed to Speech brigaded with action, e.g., picketing or demonstrations. If the Hatch Act provisions relating to "pure speech" were overruled, therefore, it would certainly strength- en the case against S399. The Hatch Act forbids such indivi- dual activities as political endorsements, writing letters to newspapers, and Speechmaking, but the Supreme Court has not addressed these issues except in dicta. There is language in the Court's Opinion in CSC v. Letter Carriers which strongly suggests that the Act may be open to direct challenge on these grounds: Even if the provisions forbidding partisan campaign endorsements and Speechmaking were to be considered in some respects unconstitutionally overbroad, we would not 43413 U.S. at 557. 65 invalidate the entire statute as the District Court did. The remainder of the statute, as we have said, covers a whole range of easily identifiable and con- stitutionally proscribable partisan conduct on the part of federal employees, and the extent to which pure Speech is impermissibly threatened, if at all . . . does not in our view make the statute sub- stantially overbroad and so invalid on its face.44 The Court seems to suggest that if "pure speech," as opposed to political conduct or activity is involved, it may be "im- permissible" to restrain it. Since this is exactly what is involved in the S399 ban, and since the two measures were de- signed to protect different governmental interests, the Hatch Act seems to present no insurmountable problems. Tax-Based Restrictions On Political Activity Of Nonprofit Corporations The problems posed by the Internal Revenue Code are not so easily avoided. Most noncommercial licensees exist legal- ly as "nonprofit corporations." Eligibility for this status is closely linked to S501 of the Code, which provides tax ex- emption for certain nonprofit corporations, and specifically to the subsection dealing with "educational" organizations. That section reads in relevant part: The following organizations (shall be tax exempt): (3) Corporations . . . organized and Operated ex- clusively for . . . educational purposes . . . no sub- stantial part of the activities of which is carrying on prOpaganda or otherwise attempting to influence legislation, and which does not participate in, or in- tervene in (including the publishing or distribution 44Ibid., at 580-581. 66 of statements), any political campaign on behalf of any candidate for public office. It would make little difference whether or not S399 was repealed or abolished if the tax code effectively imposed the same restraints. The government surely has a legitimate in- terest in freeing certain types of organizations from the bur- dens of taxation without having to subsidize political propa- gandists. It is not hard to see how the tax exemptions for the favored group could be abused if no checks were imposed on political activity. But these legitimate governmental in- terests do not justify prohibiting editorials by broadcast or print media. Recognizing the need for some restrictions, and the general principle of construing statutes so as to save them from unconstitutionality, the following two observations seem apprOpriate. First, with regard to editorials on legislation, the restrictions are clearly qualified by the requirement that these constitute a "substantial" part of the corporation's activities. "An organization will not fail to meet the oper- ational test merely because it advocates, as an insubstantial part of its activities, the adoption or rejection of legis- lation."46 This should be a sufficient safeguard, and it is an acceptable balance between First Amendment rights and gov- ernment interests in this area so long as it is liberally construed to protect regular editorializing. 45Int. Rev. Code of 1954, S501(c)(3). 46Treas. Reg. S1.501(c)(3)-1(C)(3)(ii)(B). 67 Second, with regard to endorsing or opposing candidate for public office, it should be noted that there is no such qualification. The same qualification should be read into this restriction, however, or it should be found unconstitu- tional. A complete ban on this form of political speech would be unacceptable, but a provision prohibiting "substan- tial" activities supporting or opposing a candidate would be acceptable so long as this was construed to allow normal edi torializing. A provision disallowing tax exemptions for or- ganizations established for the purpose of furthering or op- posing political candidacies would be similarly unobjection- able. On balance, there are strong policy grounds for allow- S ing noncommercial stations to editorialize. The next chapter examines a few constitutional analyses which could be used to secure this right for broadcasters. CHAPTER IV CONSTITUTIONAL ANALYSES Section 399's editorializing prohibition might be found constitutionally invalid because it (a) imposes an unconsti— tutional condition on the grant and continued use of a non- commercial broadcast license, (b) serves no compelling gov- ernmental interest, (c) constitutes a denial of equal protec- tion vis-a-vis other media, and because (d) there are less drastic means available to achieve the desired results. Any of these analyses might alone suffice to invalidate S399. Each will be discussed, however, both because they overlap1 and because each can contribute uniquely to the discussion. Since the policy questions were thoroughly discussed in the preceding section, they will not be fully reconsidered here, 1Indeed, one commentator argues that the unconstitu- tional conditions analysis, if properly applied, is no dif- ferent than more familiar approaches to constitutional ques- tions. Moreover, he says that the unconstitutional condi— tions analysis, as traditionally applied, is a "process laden with opportunities for error and distortion best bypassed if possible." French, Unconstitutional Conditions: An Analysis, 50 Georgetown L.J. 234, 247-248 (1961). Nonetheless, the analysis is discussed here if for no other reason than that it exists, and therefore has Spawned useful precedent, and because it is conveniently applied to the issue at hand. For other worthwhile discussions of the doctrine in general, see Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960), and Comment, Another Look at Unconstitutional Condi- tions, 117 U. Pa. L. Rev. 144 (1968). 68 69 but they are all relevant because the various constitutional analyses are primarily ways of accomodating the competing interests. The Doctrine of Unconstitutional Conditions The unconstitutional conditions analysis focuses on the relationship between the government's discretionary power to grant or deny licenses, and the broadcasters' rights. The government would assert that the license is a privilege, since the broadcaster is not entitled to it. If the govern- ment may withhold the benefit altogether, the argument goes, it may impose what conditions it wishes on acceptance of the benefit. The broadcaster responds that the government cannot condition the benefit on the abandonment of a constitutionally guaranteed right, and in the end, the question is usually re- solved by weighing the competing interests involved. The "right-privilege" distinction is fundamental to this approach, because the problem only arises when the benefit is considered a privilege, which may be withheld, rather than a right. Two major attacks have been made on the government's right to con- dition benefits in this way. First, the logical underpinning of the government's position has been shown to be faulty, and second, courts have seriously eroded the "right-privilege" distinction itself. The traditional approach is to argue that the condition imposed contravenes an important policy of the Constitution, such as the First Amendment. One author has li- kened this to the principle in contract law that contracts 70 against public policy are void.2 This may be a legal truism, but as he points out, it does not refute the formal logic of the position that the power to completely withhold a benefit inherently includes the lesser power to grant it subject to conditions. The logic does contain a flaw, however, as can be demonstrated by constructing a syllogism3 in which the ma- jor premise is that the FCC can deny a license completely to applicants, the minor premise is that X is an applicant, and the conclusion is that the FCC has the power to impose what- ever restrictions it desires on X. The FCC may have the pow- er to regulate the stations, but it does not stem from the power to withhold the license. Instead, both are derived from the provisions of the Communications Act and the author- ity granted by Congress to regulate in the "public interest, convenience and necessity," and the FCC's actions must be measured against at least these standards. The earliest cases applying the unconstitutional con- ditions analysis involved foreign corporations engaged in interstate commerce, but the courts in recent years have used it a number of times to protect individual rights and liber— ties. These cases have involved such issues as residency . . . 4 . . requirements for welfare rec1p1ents, burdens on criminal 2See French, Unconstitutional Conditions, supra, n. l. 3The syllogism is based on French's discussion at pp. 237-238, which develOps the idea more fully. 4Harrel v. Tobriner, 279 F.Supp. 22, 28 (D.C.D.C. 1967), aff'd. sub nom. Shapiro v. Thompson, 394 U.S. 618 (1969); but see, Wyman v. James, 400 U.S. 309 (1971). 71 appeals,5 and a number of First Amendment claims, including 7 8 freedom of religion,6 use of the mails, and loyalty oaths. In Sherbert V. Verner, the plaintiff was a woman who was de- nied unemployment benefits because she refused to accept Sat- urday work in accord with the precepts of her religion. The Supreme Court said she could not be forced to choose between her religion and the government benefits: It is too late in the day to doubt that the liber- ties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. . . . In Speiser v. Randall, . . . we emphasized that conditions upon public benefits cannot be sustained if they so Operate, whatever their purposes, as to inhibit or deter the exercise of First Amendment freedoms. Speiser involved a man who was denied a veteran's tax exemp- tion for refusal to sign a loyalty oath. The fact that the courts are moving away from the right- privilege distinction is very important in light of the grow- ing size of the government largesse and the increasing number of citizens who receive some form of government benefits.10 5Patton v. North Carolina, 256 F.Supp. 225, 237 (W.D. N.C. 1966), and the same case on appeal, 381 F.2d 636, 640 (4th Cir. 1967); Wright v. Maryland Penitentiary, 429 F.2d 1101, 1104 (4th Cir. 1970). 6Sherbert v. Verner, 374 U.S. 398, 404 (1963). 7 Lamont v. Postmaster General, 381 U.S. 301 (1965). BSpeiser v. Randall, 357 U.S. 513, 519 (1958). 9374 U.S. at 404-405; but see, Buckley v. Valeo, 424 U.S. 1 (1976). 10 , See generally, Reich, The New Property, 73 Yale L.J. 733 (1964), and Reich, Individual Rights and Social Welfare: The Emerging Legal Issue, 74 Yale L.J. 1245 (1965). 72 Of course the problem cannot be resolved by focusing solely on the individual's right any more than by looking only at the government's discretionary powers. The totality of com- peting interests must be considered, and at this point, the unconstitutional conditions analysis merges indistinguishably with, or gives way to, the more familiar tests. The Compelling Interest Test The question of what weight should be accorded to vari- ous competing interests is crucial to the outcome of many cases, and some standards have been developed by the courts. As a general rule, government actions need only be shown to be reasonably related to a valid governmental purpose in or- der to be upheld. This "rational relation" test is not ap- plied, however, when dealing with certain "fundamental" rights or "suspect classifications." The First Amendment is one of these fundamental rights which cannot be abridged un- less a compelling governmental interest is shown. As the Court said in Sherbert v. Verner: It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area only the gravest abuses, endangering paramount inter- ests, give occasion for permissible limitation.l 12 . In Mills v. Alabama, the Court struck down a section of the Alabama Corrupt Practices Act construed as providing criminal penalties for publication of a newspaper editorial on election ll374 U.S. at 406. 12384 U.S. 214 (1966). 73 day urging peOple to vote in a certain way on issues before them. Speaking for the Court, Justice Black said: We hold that no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election. In Mills, the editorial was penalized after it was published, but §399 is more serious because it imposes a blanket prior restraint on all editorializing. This is exactly the type of government action the First Amendment was designed to pro- tect against,14 and no sufficiently compelling case can be made to justify §399. The Less Drastic Means Test The courts will not approve government infringement on First Amendment rights when there are less drastic means available to satisfy the governmental interests. As the 13Ibid., at 220. l4"Whatever differences may exist about interpretations of the First Amendment, there is practically universal agree- ment that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated and should be Operated, and all such matters relating to politi- cal processes. . . . Thus the press serves, and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the peOple responsible to all the peOple whom they were selected to serve. Suppres- sion of the right of the press to praise or criticize govern- mental agents and to clamor and contend for and against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thought- fully and deliberately selected to improve our society and keep it free." Ibid., at 218-219. 74 Supreme Court has said: It would plainly be incumbent upon the appel- lees to demonstrate that no alternative forms of regulation would combat such abuigs without in- fringing First Amendment rights. Applying this test, S399 cannot stand because the Fairness Doctrine and the various safeguards against the Corporation's influence are alternative means, less violative of First Amendment rights, of guarding against the problems foreseen by Congress. The Equal Protection Argument Finally, an equal protection claim could be raised be- cause other media are not similarly restrained in the exer- cise of their First Amendment rights. Newspapers have no limits on their right to editorialize, not even a duty to afford space for replies.16 Commercial broadcasters are subject only to the Fairness Doctrine. Filmmakers are pre- sumably subject only to the constraints of obscenity laws, but can make whatever political or social statements they desire with their movies. 15Sherbert v. Verner, 374 U.S. at 407 (citations omit- ted). See also, Community-Service Broadcasting v. FCC, supra at chap. III, n. 8, (dissenting opinion of Judge Leventhal), 3 Media L. Rptr. at 1069: The FCC is of the View that no less burdensome means could be devised for informing the public. The case does not involve the kind of fine tuning that the Supreme Court has used in other First Am- endment cases, invalidating one measure by restrict- ing Congress to less burdensome means of satisfying the pertinent interest. 6Miami Herald Publishing Co. v. Tornillo, supra, chap. III, n. 15. 75 The United States Court of Appeals for the District of Columbia has recently found unconstitutional, as denying equal protection, a different subsection of §399, which like- wise discriminated between commercial and noncommercial broadcasters. In that suit, a number of noncommercial educa- tional broadcast stations challenged section 399(b) and the rules promulgated by the FCC to implement it.17 That section requires noncommercial broadcasters which receive any federal funding to make audio recordings of all broadcasts "in which any issue of public importance is discussed," to retain a copy of such recording for sixty days, and to provide c0pies at cost to any person requesting them. After reviewing the legislative history of the recording requirements, the court concluded that they not only served neither "compelling" nor "substantial" governmental interests, but also were impermissible as an "unprecedented government review--in effect, government censorship--of the specific contents of prOgrams broadcast by noncommercial stations." The court observed that it was not inconceivable that record- ing and access provisions at issue could be grounded on some legitimate governmental interest. But given the absence of similar regulation of commercial stations,6 such alternative objectives cannot sustain the statute and regulations at issue here against a Fifth Amendment equal protection challenge. For the distinction between requirements imposed on commercial and noncommercial stations 18 l7Community-Service Broadcasting v. FCC, supra, at chap. III, n. 8. 76 not even relevant to any legitimate governmental interests, . . . let alone sufficiently supported to meet the strict scrutiny appropriate where First Amendment rights are implicated, see, e.g., Chicago Police Department v. Mosley, supra, 408 U.S. at 101-102; NAACP v. Button, 371 U.S. 415, 438 (1963); Mancuso v. Taft, 476 F.2d 187, 192- 196 (lst Cir. l973).13i (Emphasis added, footnote omitted.) The court goes on to reject arguments that public funding of noncommercial stations makes a difference, stating: "If recording and access requirement are to be imposed on this basis, they must be applied to all stations." It concludes: A similar conclusion must be reached with respect to any claim that these provisions are justified as a means of facilitating the responses secured by the Fairness Doctrine. Since that doctrine is equally applicable to commercial and noncommercial stations, see Accuracy in Media, Inc. v. F.C.C., 521 F.2d at 296, requirements predicated on compliance with it cannot constitutionally be imposed, as they have been here, only upon noncommercial stations. Because we are unable to find any legitimate gov- ernmental interest served by these provision [sic] which does not at once fall on equal protection—— grounds, Section 399(b) and the rules promulgated thereunder must be found unconstitutional. It should be emphasized that application of the equal protection doctrine does no more than assure equality, and the test is as easily satisfied if both commercial and non- commercial stations are prohibited from editorializing as it is if neither are subject to such restraints. The court's finding that equal protection had been denied in Community- Service Broadcasting, for example, was premised on the ab- . . . . . 20 . sence of Similar regulation of commerCial stations. This 18Ibid., 3 Media L. Rptr. at 1065. lgIbid., at 1066. 20lbid., at 1065. 77 case was originally remanded to the FCC for clarification of certain Specified questions. At the time of the remand, the Commission was "considering, among other things, applying a "21 similar requirement to commercial broadcast stations, but this proposal was rejected.22 Likewise, when S399 was debated on the floor of the House of Representatives, one of its leading advocates, Congressman William Springer of Illinois, stated his belief that "commercial as well as educational and noncommercial TV" ought not to be able to endorse or reject candidates for office.23 If this view were shared by a majority of his colleagues and a statute were passed implementing it, an equal protection argument would be of no avail as both would be equally constrained from editorializing. These illustrations are meant to underscore the fact that the right to editorialize must ultimately be viewed as a constitutional right stemming from the First Amendment, even though the equal protection analysis will be useful so long as other media, especially commercial broadcasting, enjoy their full complement of First Amendment rights. It is also worth noting in passing that an equal pro- tection argument could be made with respect to newspapers, not only on the ground that they are not prohibited from 211bid., at 1068. 221bid., at 1065 n. 6. 23See n. 34, chap. II, supra, and accompanying text. 78 editorializing, but also on the ground that application of the Fairness Doctrine to broadcast media and not to news- papers is a further denial of equal protection. The necess- ity, desirability and legality of the Fairness Doctrine are outside the scope of this thesis, but it is important to note that at the present time, the Fairness Doctrine is fully and equally applicable to both commercial and noncommercial broadcasters, and therefore whatever safeguards there are against abuse of the right to editorialize by commercial broadcasters are equally present in the noncommercial setting. Conclusion The foregoing discussion of policy and legal arguments shows that §399 is an unwarranted and invalid abridgement of the First Amendment rights of noncommercial broadcasters. The broadcaster as a media operator should be treated no differently, at the very least with respect to essential First Amendment rights, from newspaper publishers, filmmakers and book publishers. To the extent that broadcasting is treated differently, it must continue to be along lines which affirmatively promote goals of the First Amendment, such as the Fairness Doctrine, and not in ways which affirm- atively abridge First Amendment rights. It should be clear that if the government has or assumes the right or power to abridge the rights of one medium, it may do so to others. Newspapers should be just as concerned about restraints on commercial broadcasters as the commercial broadcasters should be about limits on noncommercial stations. Of course, 79 it is worthwhile to note that if the arguments in this thesis on behalf of noncommercial licensees are found to be inade- quate, it should not necessarily jeopardize the status of commercial broadcasters, because the major governmental in- terests underlying §399 are absent in the commercial sphere. 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