Freedom of Expression
A Report and Analysis
Prepared for the Organization of
State Broadcasting Executives
TABLE OF CONTENTS
Public radio and television are a vital component of the American system of broadcasting. Approximately 650 radio stations and 350 television stations are licensed by the Federal Communications Commission (“FCC”) to provide educational programming to the American people. Noncommercial educational broadcasters are licensed by the FCC primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial broadcast service. In fulfilling this mandate, public stations provide high quality news, educational, cultural and entertainment programs that are not otherwise available from commercial broadcast and subscription television outlets.
But while the contribution of noncommercial broadcasting to public discourse is undeniable, the precise status of noncommercial licensees within America’s system of free expression is not as well defined. Because of the “public” nature of public broadcasting, questions recur as to the rights of the licensees to engage in unfettered expression. Complex questions abound: To what extent are public broadcasters, many of which include state governmental entities, protected by the First Amendment to the Constitution, which provides that “Congress shall make no law . . . abridging freedom of speech, or of the press?” When a state agency acquires a license to transmit broadcast speech, does it create a “public forum” in which the station’s editorial preferences are subordinated to constitutionally-required rights of public access? In contrast, may the government dictate programming choices of a public licensee by virtue of its state affiliation or because it is funded in part by the legislature? There also are questions regarding special restrictions for public broadcasters under the federal system of regulation. Yet the federal licensing scheme may also be a source of rights to free expression vis-à-vis state governments.
Such questions go to the heart of public broadcasting’s constitutional identity. Are public licensees nothing more than the mouthpiece of the government or do they provide an important independent editorial voice? And if it is the latter, how is journalistic independence to be preserved in the face of the competing demands of political influence and public access? What is the source of a public licensee’s editorial independence in light of its obligations as a federal licensee and its dependence on governmental funding?
The elusive nature of these questions is a counterpoint to the rather concrete threats to free expression that perennially confront public broadcasters. In the early 1970s the White House and Congress adopted measures designed to restrict the editorial independence of public broadcasting by limiting “controversial” programming. In the 1980s, viewers of public stations and program producers demanded the right to override the editorial decisions made by public broadcasting executives. In the 1990s political candidates claimed a constitutional right of access to political debates sponsored by public broadcast licensees. And in the year 2000, states used their spending power to limit nationally-distributed programming on local stations. This partial list oversimplifies the various threats to free expression, in that particular efforts to limit programming are not necessarily confined to any one point in time. But it does provide a sampling of the various types of threats encountered by public broadcasters.
This Report addresses these complex issues and offers an approach for maximizing the editorial independence of public broadcast licensees. It defines editorial independence in the same way as the Statement of Principles of Editorial Integrity in Public Broadcasting: “the responsible application by professional practitioners of a free and independent decision-making process which is ultimately accountable to the needs and interests of all citizens.” The goal of this Report is to bolster the “free and independent decision-making process” of public broadcasting and to provide legal analysis and support for the Statement of Principles of Editorial Integrity, the fourth principle of which states:
Public broadcasting stations are subject to a variety of statutory and regulatory requirements and restrictions. These include the federal statute under which our licensees must operate, as well as other applicable federal and state laws. Public broadcasting is also cloaked with the mantle of First Amendment protection of a free press and freedom of speech.
As trustees we must be sure that these principles are met. To do so requires us to understand the legal and constitutional framework within which our stations operate, and to inform and educate those whose position or influence may affect the operation of our licensees.
This Report updates a previous study of the First Amendment rights of public broadcasters, which is now almost twenty years old. See Preston, Thorgrimson, Ellis & Holman, Analysis of First Amendment Rights of Public Broadcasters (Nov. 4, 1983) (“1983 First Amendment Analysis”). The current Report examines constitutional doctrine and case law to determine whether, and to what extent, public broadcasters are protected by First Amendment guarantees of free expression. It also analyzes the ways in which the federal licensing scheme imposes special programming requirements on public broadcasters, while simultaneously limiting content regulation at other levels of government. Finally, it offers recommendations for further steps to help solidify public broadcasters’ rights to free expression.
Public Broadcasting in the Scheme of Federal Regulation
Public broadcasters, like their commercial counterparts, are licensed by the Federal Communications Commission (“FCC”) to provide radio and television service to the public. As part of the FCC’s expansive powers over licensing, the Communications Act of 1934 confers certain authority to regulate broadcast programming by authorizing political broadcasting rules, requirements for children’s programming, closed captioning rules, and restrictions on “indecent” broadcasts. As a general matter, broadcast licenses are conditioned on the licensee’s ability and willingness to serve the “public interest, convenience and necessity.”
Congress adopted the Public Broadcasting Act of 1967 to provide federal support for public broadcasting so as to “encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences.” Within this framework, the overall federal policy toward public broadcasting is to promote freedom of expression. Federal policies underlying the promotion of public broadcasting include maximizing diversity by promoting “freedom, imagination and initiative on both local and national levels,” serving as “a source of alternative telecommunications services for all the citizens of the Nation,” and insulating programming decisions from political control.
To promote these goals, Congress created the Corporation for Public Broadcasting (“CPB”), a private, non-profit corporation that partially funds the activities of public broadcasting. Among other things, CPB was given a mandate of facilitating the production of “programs of high quality, diversity, creativity, excellence, and innovation, . . . with strict adherence to objectivity and balance in all programs . . . of a controversial nature.” However, CPB may neither engage in broadcasting itself nor produce programming, and is required to remain a strictly non-political and non-profit organization. Instead, CPB created the Public Broadcasting Service (“PBS”) and National Public Radio (“NPR”) to distribute programming to member radio and television stations. Most CPB-funded television programs are distributed through PBS, and CPB-funded radio programs are distributed primarily through NPR and Public Radio International (“PRI”).
Public broadcast stations are licensed to various types of private and governmental entities. Nonprofit community organizations or state government agencies operate a large proportion of public television stations, while many public radio stations are licensed to universities. State government stations are typically linked into multi-station networks that air a common program schedule statewide. Funding for public broadcasting also comes from a combination of public and private sources. Less than half of the funding for public broadcasting comes from tax-based sources such as federal, state, and local governments.
Programming Regulation. Because broadcasters are licensed by the federal government, they historically have been subject to certain content controls considered constitutionally impermissible if applied to unregulated media. The classic example illustrating this difference is the Supreme Court’s approval of the broadcast “fairness doctrine,” and its rejection for similar “right of reply” requirements for the print media. However, the FCC’s authority in this area is somewhat paradoxical. Congress vested the FCC with the authority to regulate broadcasters “in the public interest,” but it also decreed that the federal agency lacks any power to “interfere with the right of free speech by means of radio communication” or to impose any “regulation or condition” that interferes with free expression. The overall purpose of this regulatory balancing act is to “to maintain – no matter how difficult the task – essentially private broadcast journalism.”
Generally, commercial and noncommercial licensees have the same public interest obligations. However, some differences between the two sectors exist because of the differing purposes of commercial and noncommercial service.
Educational Programming Requirements. The Communications Act and FCC rules require that noncommercial broadcasting facilities “will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service.”
Commercial Restrictions. The Communications Act provides that “no public broadcast station may make its facilities available to any person for the broadcasting of any advertisement.” Despite this statutory proscription, the FCC decided that public broadcasters may use part of their digital frequencies for subscription services.
Political Broadcasting Restrictions. The Com-munications Act prohibits noncommercial licensees from supporting or opposing candidates for elected office, broadcasting program material in exchange for remuneration intended to support or oppose any candidate for political office, and accepting any remuneration for the broadcast of programming expressing the views of any person on a matter of public importance or interest. However, Congress amended Section 312(a)(7) of the Act in 2001, freeing public broadcasters from the obligation to provide “reasonable access” to their facilities by federal candidates.
Free Expression Controversies. Public broadcasting has faced various threats to free expression over the years. Some examples of editorial interference are based on the nature of broadcasting as a regulated medium while others arise from the special nature of public broadcasting.
Federal Funding Crisis. Shortly after passage of the Public Broadcasting Act, the Nixon Administration sought to eliminate news and public affairs programming from public broadcasting, and to redirect programming efforts toward local cultural and educational programming. It sought to accomplish these goals through its appointments to the CPB Board and through restricting funding for public broadcasting. These actions culminated in a presidential veto of public broadcasting appropriations in 1972. After this event, Congress moved toward a more stable system of multi-year funding for public broadcasting, although similar questions over funding recur from time to time.
FCC Review of Programming Decisions. The FCC generally defers to the good faith editorial judgments of licensees, but in a series of decisions in the 1970s it subjected public broadcasters to significant scrutiny, and even denied some license renewals. The Commission stressed that public broadcasters have a statutory obligation to maintain control over programming on their stations. However, it subsequently eliminated formal ascertainment of community needs and significantly modified program logging requirements in order to reduced routine oversight of programming. The FCC has characterized its role as “appropriately limited” to “facilitating the development of the public broadcasting system rather than determining the content of its programming.”
Federal Editorial Limits. Congress and the FCC in the past have imposed restrictions on the editorial freedom of noncommercial broadcasters, but courts have carefully scrutinized such measures. Until the editorial ban was invalidated by the Supreme Court in 1984, Section 399 of the Public Broadcasting Act provided that “[n]o noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office.” This provision had been limited in 1981 to cover only stations receiving CPB grants. Another rule requiring public stations to record “controversial programs” similarly was invalidated. The restriction on supporting or opposing candidates was not challenged in court and remains in effect.
Viewer and Programmer Access Demands. In another series of cases the editorial discretion of public licensees has been challenged by access demands made by program producers and various segments of the public. These “public forum” cases ask whether the government’s involvement as a licensee of noncommercial broadcast stations entitle viewers and program providers to a constitutional right of “access” to the governmentally-created forum. Generally, courts have denied such access demands, but have also ruled that, as “government speakers,” public broadcasters lack First Amendment rights.
Political Debates. A specialized class of public forum cases involve the sponsorship of political debates by public broadcasters. Courts have been asked to determine whether public broadcasters create a public forum when they sponsor debates between political candidates and thereby take on the obligation to include all candidates in the event. Public broadcasters have responded that they need to have editorial discretion to limit debates to newsworthy candidates. As the case law has developed in this area, reviewing courts have concluded that public broadcasters do not necessarily create a public forum by sponsoring a political debate. However, under certain circumstances, public broadcasters may take on the obligations of the public forum if they do not exercise news judgment.
State Programming Restrictions. State governments from time to time seek to impose restrictions on the programming transmitted by public broadcast stations. Such restrictions may take various forms. A state legislature may simply prohibit programming it considers to be controversial or it may impose less direct regulatory requirements on particular types of programming. Control may also be imposed by appropriations decisions, since state legislatures provide significant funding for public broadcasting. Such measures raise questions about possible federal preemption of state programming restrictions as well as First Amendment issues.
Constitutional and Statutory Approaches to Protecting Free Expression
One important challenge facing public broadcasters is the need to make consistent arguments in support of their rights to editorial discretion in the various situations in which free expression has been threatened. Courts have upheld the right of public broadcasters to air editorials, to control their programming schedules and to use journalistic judgment to select participants for political debates. Other challenges – notably restrictions on federal and state funding – have been resolved more by political solutions than by litigation. However, in light of the myriad situations in which threats to free expression arise, it is critically important that arguments supporting editorial discretion in response to a particular challenge be developed with an awareness of how the reasoning may affect the next case.
The Dichotomy Between Government Speech and the Public Forum. The root First Amendment question facing public broadcasters is their constitutional identity. Can they claim First Amendment protection from government “abridgement” of speech when the licensee is a government agency? Or is the government merely exercising dominion over “its own medium of expression” when it restricts speech in ways that would constitute a clear case of censorship if applied to private media? Also, what obligations does the government have to provide citizen access to station facilities under the public forum doctrine? Case law provides some answers to these questions, but it is episodic and its doctrinal underpinnings are not always clear. Based on recent developments, this Report explores the possibility of developing a separate doctrine under which constitutional protection may be extended to “state-sponsored speech enterprises,” such as public broadcasters.
Public Broadcasters as Government Speakers. When the government is the speaker and is delivering its own message, First Amendment protections do not apply to its speech. Although some lower courts have assumed that state-operated public broadcast licensees necessarily are government speakers and therefore lack First Amendment rights, this issue has never been resolved definitively. The Supreme Court declined to address it in Arkansas Educational Television Commission v. Forbes, thus preserving the possibility that the First Amendment may protect public broadcasters from some types of government action.
Public Broadcasters Under the Public Forum Doctrine. Certain courts have held that public broadcasting stations are not public fora, and therefore no right of access exists for the public. Instead, licensees are considered government speakers. Under these decisions the public cannot dictate broadcasters’ program schedules, but state officials can do so. The difficult question presented by these cases is how simultaneously to preserve the discretion of public broadcasters from both public demands and political manipulation. The Supreme Court in Forbes helped clarify this issue by holding that “broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.” But the Court did not resolve the broader doctrinal question of the constitutional status of state-owned broadcast stations.
A Possible Third Way: Constitutional Protection for Government-Sponsored Speech Enterprises. Developing case law suggests that it may be possible to craft a new First Amendment doctrine to provide protection for government-sponsored speech enterprises. Recent decisions suggests that the First Amendment may protect the journalistic integrity of government-sponsored institutions, like public broadcast stations, that are created for the purpose of exercising independent editorial judgment. A government-sponsored speech enterprise is distinguished from pure “government speech” in that it is established to exercise independent editorial judgment, not to disseminate the state’s message. It also is distinguished from the designated public forum in that the purpose of the speech enterprise is not to create an open platform for all speakers. Certain types of state-sponsored institutions – libraries, universities, and the institutional press – have a First Amendment “aura” that has received judicial recognition and protection. Under this logic, state-owned public broadcast licensees could be the very paradigm of a government-sponsored speech enterprise.
Applying Legal Arguments to Particular Threats to Free Expression. Because free expression by public broadcasters may be threatened in various ways, different legal arguments may be necessary to combat such threats. The goal of this analysis is to fashion arguments that protect free expression while maintaining a consistent doctrinal approach.
Federal Programming Restrictions. Because questions involving broadcast content have an undeniable political appeal, it is entirely possible that federal regulators may in the future enact content restrictions that are incompatible with the mission of public broadcasting. One potential example is the perennial attempt to ban the distribution of violent programs at time when children may be watching. Measures of this type would be subject to a straightforward First Amendment argument. The principal claim would be that such regulations disrupt the balance struck by the Communications Act and the First Amendment between public interest obligations and editorial discretion.
Access Demands and the Public Forum. The Supreme Court’s decision in Forbes should help resolve most claims that public broadcast stations are public fora. In the special case of candidate debates, however, public broadcasters must use good journalistic judgment in order to preserve their editorial discretion. Such practices are consistent with broadcast licensees’ obligations under the Communications Act’s political broadcasting requirements.
State Programming Restrictions, the First Amendment, and the Power of Federal Preemption. The imposition of content controls on noncommercial licensees by state governments poses one of the thorniest issues in public broadcasting. A significant percentage of noncommercial licenses are held by state governments, thus raising the question whether any given content restriction is more properly characterized as “censorship” or as “editing.” But programming decisions based on accepted professional standards are quite different from content prohibitions imposed through the political process. State-imposed content restrictions may provide an occasion to test the theory that the First Amendment protects state-sponsored speech enterprises. Additionally, it would be plausible to argue that such restrictions are preempted by federal law. The Communications Act is predicated on serving the public interest by maximizing the editorial freedom of broadcast licensees. The Supreme Court has noted that “[p]ublic and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming.” Accordingly, substantial case law supports the argument that programming restrictions imposed on public broadcasters by state governments are federally preempted.
Limits on Use of Funding to Restrict Free Expression. Where funding decisions are made for the sole purpose of influencing editorial decisions, constitutional limits may come into play. The Supreme Court recently limited the government’s ability to use funding restrictions to “prohibit speech necessary to the proper functioning” of the programs it creates. Although the government may not be required to fund public broadcasting in the first place, the Constitution limits its ability to withdraw financial support solely to restrict programming it disfavors.
Public Broadcasting, Free Expression, and Editorial Integrity
The Wingspread Conference on Editorial Integrity in Public Broadcasting was convened in 1984 to enable public broadcasting executives and representatives from state licensing boards and commissions to explore the First Amendment position of public broadcasting licensees. The resulting report found that “[t]he history of public broadcasting licensees, especially those which are also state government entities, shows that they have unclear First Amendment rights.” Now, almost two decades later, while the legal questions have not been fully resolved, there have been significant case law developments that point toward possible strategies to maximize the editorial independence of public broadcast licensees based on First Amendment and statutory principles.
As the analysis detailed in this Report suggests, a critical factor in preserving the editorial independence of public broadcast licensees is making sure that the entities are chartered to provide an independent editorial voice and that they behave as professional journalistic organizations. This requires attention to the obligations associated with the FCC license, the purposes of the authorizing legislation at the state level, the corporate by-laws, and professional guidelines such as the Principles of Editorial Integrity. By focusing on professional standards that advance established goals of journalistic excellence, public broadcasters can help create a self-fulfilling prophesy: They are more likely to be accorded a high degree of editorial independence by law where they exercise a high degree of editorial independence in fact.
This Report on freedom of expression in public broadcasting represents only the starting point, and not the end, of any focused effort to promote full constitutional protections for noncommercial licensees. The purpose of this analysis is to initiate a dialogue that will lead to a reexamination of the status of public broadcasting as a journalistic enterprise in the 21st century, and perhaps to the development of new Principles of Editorial Integrity. Accordingly, to move this project to its next phase, I recommend the following actions:
There should be a comprehensive analysis of existing state statutes, corporate by-laws, and professional standards that govern the operations of noncommercial broadcast licensees.
Public broadcasters should convene a second Wingspread Conference to examine issues of editorial integrity in public broadcasting in the contemporary media environment.
Based on the Wingspread II findings, and in light of this analysis and a review of state laws, the public broadcasting community should consider developing new Principles of Editorial Integrity for the 21st century.