Any analysis of free expression and public broadcasting must take into account the special status of broadcasting as a licensed medium. Content controls considered constitutionally impermissible in the case of unregulated media have been allowed when applied to broadcasting. The classic example illustrating this difference is the Supreme Court’s approval of the broadcast “fairness doctrine,” 30/ and its rejection for similar “right of reply” requirements for the print media. 31/ Similarly, the Court has upheld the regulation of broadcast “indecency” 32/ while striking down similar restrictions for cable television 33/ and the Internet. 34/ However, the federal government’s ability to regulate broadcast content must be understood both in its historical context and in light of congressional intent.
Although seemingly paradoxical, the overall purpose of government content regulation is to promote First Amendment values. 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. 35/ Accordingly, the Supreme Court has stressed that “the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area.” 36/ Thus, despite the FCC’s ability to regulate content, the Communications Act of 1934 was designed “to maintain – no matter how difficult the task – essentially private broadcast journalism.” 37/
Whatever may be the current scope of FCC authority, as a general matter, the same public interest requirements apply to both commercial and noncommercial licensees. The FCC has noted that “[w]hen it comes to responsibility for adequate supervision and control over station operations, all licensees are treated alike, whether commercial or non-commercial, network ‘O&Os’ or educational stations. 38/ Although noncommercial broadcasters receive governmental financial assistance where commercial broadcasters do not, Congress acted to restrict the federal government’s ability to use funding for public broadcasting as a means to exert political influence over programming.39/ Nevertheless, some differences in the content regulation of noncommercial licensees exist, particularly in the areas of educational programming obligations, political broadcasting, commercial speech and (at least potentially) enforcement of indecency rules. These particular areas are described below:
Educational Programming Requirements
The very purpose for the reservation of frequencies for noncommercial broadcasting was to provide an alternative to commercial programming and to increase the amount of educational and cultural programming in the marketplace. Accordingly, 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.”40/ The FCC’s rules state that noncommercial educational broadcast stations “may transmit educational, cultural and entertainment programs, and programs designed for use by schools and school systems in connection with regular school courses, as well as routine and administrative material pertaining thereto.” 41/
One issue that has led the FCC to clarify its requirement of “educational” broadcasting has been its licensing of reserved frequencies to religious broadcasters. The FCC has in the past, and continues now, to issue radio and television licenses to religious organizations to operate on frequencies reserved for noncommercial educational uses. 42/ Like all other licensees on the reserved frequencies, religious organizations must comply with the Commission’s eligibility rules. That is, a noncommercial educational broadcasting station must “be used primarily to serve the educational needs of the community.” 43/ In meeting this requirement, the Commission gives “primary weight to those programs which may properly be categorized as ‘instructional’ or ‘general educational.’” 44/ With respect to religious broadcasters, the FCC has stated:
We will not disqualify any program simply because the subject matter of the teaching or instruction is religious in nature. While not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters relating to religion would qualify. In this regard, some programs will properly be considered to be both instructional and religious or both general educational and religious. 45/
Although this approach requires the evaluation of program content, the Commission has stressed that “as in all matters relating to programming, we will defer to the judgment of the broadcaster unless his categorization appears to be arbitrary or unreasonable.” 46/
In late 1999, the FCC attempted to provide “additional guidance” on the type of programming required to comply with its rules for reserved channels. It stated that more than half of the hours of the overall weekly program schedule of a noncommercial educational station “must primarily serve an educational, instructional or cultural purpose in the station’s community of license.” Additionally, qualifying programming “must have as its primary purpose service to the educational, instructional or cultural needs of the community.” 47/ While the Commission noted that programs which involve the teaching of matters related to religion would be considered to be educational, it indicated that programming “primarily devoted to religious exhortation, proselytizing, or statements of personally-held religious views and beliefs generally would not qualify as ‘general educational’ programming.” 48/ As before, the Commission said it would defer to the judgment of the broadcaster in selecting qualifying programming unless its “categorization appears to be arbitrary or unreasonable.” 49/ Under pressure from Congress, the Commission subsequently decided to vacate the “additional guidance” for what constitutes “educational, instructional or cultural” programming. 50/
A second principal distinction between public and commercial broadcasting is the noncommercial nature of the service. Section 399B of the Communications Act provides that “no public broadcast station may make its facilities available to any person for the broadcasting of any advertisement.” 51/ Despite this statutory proscription, the FCC recently decided that public broadcasters may use part of their digital frequencies for subscription services so long as a “substantial majority” of their capacity is devoted to the provision of a nonprofit, noncommercial educational broadcasting service. The Commission also decided that its commercial advertising restrictions do not apply to nonbroadcast services, such as subscription services provided on DTV channels. 52/
As a general matter, public broadcasters are permitted to engage in “enhanced underwriting” as a source of funding for their broadcast services. Section 399a of the Communications Act permits noncommercial licensees to acknowledge underwriting contributions with brief acknowledgements that identify – but do not promote – underwriters and their products. 53/ For many years non-commercial stations were prohibited from announcing more than the name of the corporate sponsor of particular programming. 54/ In 1984 the Commission relaxed its underwriting policy to allow public broadcasters to “enhance” their donor acknowledgements to include logograms or slogans, information on the location of the donor, neutral descriptions of the donor’s product or service and brand or trade names. The enhanced announcements could not include promotional or comparative language like that typically found in advertisements, and the Commission chose to rely on the reasonable good faith judgments of licensees to tell the difference. 55/ The Commission reaffirmed and clarified its policy governing enhanced underwriting in 1986, stressing that such announcements cannot include qualitative or comparative product or service descriptions, price information, calls to action, or inducements to buy, sell or lease. 56/ The specific applications of this policy are determined case-by-case by the FCC.
Political Broadcasting Restrictions
The rules affecting political broadcasting generally apply both to commercial and non-commercial licensees, but there are some differences. In 2001, Congress amended Section 312(a)(7) of the Communications Act, freeing public broadcasters from the obligation to provide “reasonable access” to their facilities. 57/ However, some added restrictions apply to non-commercial licensees. The Communications Act prohibits non-commercial station licensees from supporting or opposing any candidate for elected office, broadcasting any 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. 58/ As explained later in this Report, public broadcasters successfully challenged other restrictions on editorializing and that required noncommercial licensees to record programs that touched on matters of public importance. 59/ However, the prohibition against making political endorsements has not been challenged. 60/
Both commercial and noncommercial broadcast stations are subject to the federal ban on transmitting “indecent” speech. Generally, federal law and FCC policy prohibit broadcasting language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience. While the same rules apply to commercial and noncommercial broadcasters as a matter of law, there may be some difference in application as a practical matter.
In FCC v. Pacifica Foundation, the Supreme Court upheld the FCC’s legal definition of indecency against a First Amendment challenge. 61/ The Pacifica decision approved the Commission’s “time channeling” approach to indecency enforcement, which prohibited indecent content during hours when children were likely to be in the audience. From the late 1980s until the mid-1990s, the FCC engaged in continuous litigation to clarify its application of a “time channeling” or “safe harbor” policy. 62/ After two unsuccessful FCC attempts to establish a “safe harbor” period, Congress in 1992 decreed that indecency would be banned from the airwaves between 6 a.m. and midnight. 63/ However, the statute created a different “safe harbor” period for public broadcasters that went off the air on or before midnight. Such stations were prohibited from transmitting indecent programming between 6 a.m. and 10 p.m. In response, the D.C. Circuit narrowed the time period covered by the indecency ban to midnight to 6 a.m. for all stations, reasoning that Congress did not justify imposing different and inconsistent requirements for public and commercial broadcasters. 64/
For the most part, the FCC has enforced its indecency policy equally when it comes to commercial and noncommercial broadcasters. The Pacifica decision, for example, arose from a broadcast on noncommercial station WBAI. More recently, the FCC’s Enforcement Bureau issued a forfeiture against noncommercial KBOO-FM for the broadcast of a rap song entitled “Your Revolution” 65/ within a couple of weeks of issuing a similar sanction against a commercial station. 66/ However, in another case the Commission exonerated an NPR broadcast despite the fact that, as former FCC Commissioner (and later PBS President) Ervin S. Duggan wrote in dissent, it transmitted “in the course of a few seconds ten repetitions of the dirtiest of ‘the seven dirty words.’” 67/ Then-Commissioner Duggan ventured the opinion that his fellow Commissioners may have been persuaded not to issue a sanction in that case “because the broadcast in question was by National Public Radio.” 68/ His dissent suggested that, at least for some types of programs on public broadcasting, some FCC Commissioners may be more willing to find sufficient “merit” to forestall an indecency finding. However, the FCC’s more recent decision to issue a notice of apparent liability for the broadcast of “Your Revolution” casts doubt on this opinion. In a particular case, or in response to a particular program, the FCC may be more likely to find sufficient merit in the material to avoid an indecency finding. However, such assumptions are not amenable to generalization.
C. Free Expression Controversies Affecting Public Broadcasting
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. This section summarizes some of the major free speech controversies that have affected public broadcasters.
1. Federal Funding Crisis
Shortly after passage of the Public Broadcasting Act, the future direction of noncommercial broadcasting became embroiled in political controversy. The Nixon Administration sought to shape the development of public broadcasting, and to forestall the creation of a federally funded national network. In particular, the Administration attempted to eliminate news and public affairs programming from public broadcasting, and to reorient its focus 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. 69/
The Administration’s stated position was that the federal government should not be involved in the distribution of national public affairs programming. Dr. Clay T. Whitehead, the director of the White House Office of Telecommunications Policy explained in a memo to support President Nixon’s 1972 veto message:
It was never intended that there should be a monolithic publicly-funded national network with [CPB] as its headquarters, nor that its principal purpose should be programming for narrow audiences. It was not intended to be a journalistic medium. Its purpose was to encourage local and private initiatives in educational programming and experimental program development. 70/
In fact, however, the opposition to public affairs programming on public broadcasting was linked directly to the Administration’s concern that national news and public affairs programming was tainted with a liberal bias. Patrick Buchanan, then an advisor to the President, classified liberal commentators on PBS variously as “definitely anti-administration,” “definitely not pro-administration,” and “unbalanced against us,” and conservative commentators as “a fig leaf.” 71/
The White House monitored particular programs, and was especially concerned about the announced selection of Robert MacNeil and Sander Vanocur as anchors of a weekly political program in 1972. The Administration was troubled by their outspoken positions against the Vietnam War. One confidential memo at the time noted: “[t]he above report greatly disturbed the President who considered this the last straw. It was requested that all funds for Public Broadcasting be cut immediately.” 72/ One staff memo suggested that “no one participating in this exercise has ever been unclear as to the President’s basic objective: to get the left-wing commentators who are cutting us up off public television at once, indeed yesterday if possible . . . .” 73/ Options that were considered included abolishing CPB, prohibiting the broadcast of public affairs programming, taking greater control of the CPB board, and exerting pressure on federal funding. 74/
A key part of the White House strategy involved structuring public broadcast funding to place greater emphasis on programming by local stations. A June 1971 memo written by Office of Telecommunications Policy (“OTP”) General Counsel (and later Supreme Court Justice) Antonin Scalia outlined this approach:
Probably no amount of restructuring will entirely eliminate the tendency of the Corporation to support liberal causes. On the other hand, this Administration does have an opportunity to establish, by legislation and otherwise, structures and counterbalances which will restrain this tendency in future years and which, as a political matter, it will be difficult for other administrations to alter. It is in this direction that we have thus far been proceeding. 75/
A subsequent OTP staff memo stated that the “principal objective of our policy toward public broadcasting should be to modify the structure of the system so as to eliminate the dominant position of CPB.” 76/ Accordingly, in February 1972, Whitehead informed Congress that the Nixon Administration opposed any permanent financing for CPB unless local public stations were given greater power to control programming. 77/ This culminated in President Nixon’s veto, in June 1972, of a two-year CPB authorization bill. 78/ Congress ultimately adopted a one-year continuing authorization for CPB at a level thirty percent below the vetoed proposal. 79/
In the year following these budget actions, CPB and PBS negotiated an agreement redefining the relationship between the two organizations with respect to program control, operation of the public television interconnection, and support of local stations. 80/ The White House viewed the agreement as a compromise that gave CPB a direct voice in determining the scheduling and funding of programs rather than leaving the choice entirely to PBS, and that called on both CPB and PBS to review the balance and objectivity of programming. 81/ It was seen as a way to establish a system of checks and balances between the boards of local stations, PBS and CPB. President Nixon subsequently signed a two-year budget authorization for CPB, 82/ and Congress moved toward a more stable system of long-term funding for public broadcasting.
The various efforts to limit public affairs programs were challenged as a violation of the Public Broadcasting Act and the First Amendment. In a suit filed by a number of public television viewers and independent producers it was alleged that that CBP and PBS had eliminated funding for “controversial programs” and that remaining programs were subject to various forms of prescreening and censorship. 83/ The District Court dismissed the complaint, holding that the plaintiffs had failed to state a claim under the Public Broadcasting Act and that it lacked jurisdiction over the First Amendment claims. 84/ Claims against former presidential aides Clay Whitehead and Patrick Buchanan were dismissed as moot. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed dismissal of the statutory claims. In its analysis of the history and structure of the Public Broadcasting Act, including various provisions of Section 396, the court concluded that “private rights of action are not part of the machinery devised by Congress for control of CPB’s activities.” 85/ Instead, the statutory mandates “are to be enforced exclusively by Congress.” 86/
Although the controversy over federal funding of public broadcasting is associated primarily with the Nixon Administration, it is not entirely a thing of the past. The Bush Administration has indicated that public broadcasting should not receive multi-year funding commitments, but instead should be subject to an annual appropriations process like other federal programs. Public broadcasters, on the other hand, have responded that advance funding is essential to insulate public broadcasting from undue political influence. At the end of 2001, Congress voted to support advance funding, approving a $380 million appropriation for CPB for fiscal year 2004. 87/
FCC Review of Programming Decisions
Although the FCC generally defers to the good faith editorial judgments of licensees, there have been a few cases in which it has subjected public broadcasters to significant scrutiny and denied license renewal. The decisions did not reflect any special obligations for public broadcasters, but demonstrated the significance of federal oversight under the public interest standard. Most of these programming reviews occurred during the 1970s, when FCC oversight of programming was more regulatory than the current practice.
The most significant of the FCC decisions resulted in denial of the Alabama Educational Television Commission’s (“AETC’s”) applications to renew the licenses of eight television stations and to grant a license to cover the construction permit of a ninth station. 88/ The main thrust of the complaint against AETC was that it followed a racially discriminatory policy in its overall programming practices and did not adequately serve the public interest. In particular, a leading complaint charged that AETC had censored a number of black oriented programs, including Black Journal, Soul and On Being Black. 89/ In response AETC argued that selection of programming was within the licensee’s discretion, and that the few programs it chose not to carry contained offensive material.
The FCC initially granted AETC’s applications, but on rehearing designated the matter for a hearing. 90/ Although the Administrative Law Judge subsequently granted the applications upon finding that “no licensee is to be faulted for refusing to broadcast programming which it believes to be offensive and in poor taste,” 91/ the full Commission overruled the decision. The FCC did not conclude that AETC rejected programs because of racial considerations but instead found “a total lack of evidence that AETC formulated any policy or issued any order designed to block the presentation of programs of special interest to negroes.” 92/ However, it denied AETC’s applications upon the finding that AETC had failed to ascertain the “special needs” of blacks within the state and that its programming was not responsive to those needs. 93/ Despite the application denial, the FCC decision did not cause AETC to forfeit its stations. Because AETC is a public agency and had taken steps to improve its performance, the FCC granted it interim authority to operate the stations and allowed it to file new applications for the stations. 94/
The decision spawned a number of other challenges to the renewal of public broadcast licenses. However, many of the challenges were based on generalized assertions of programming failures that the FCC found insufficient to warrant a full hearing. For example, the Commission rejected a challenge to the renewal of eight television licenses held by the Mississippi Authority for Educational Television (“MAET”) that was very similar to the allegations leveled against AETC. Various citizens’ groups alleged that MAET had failed to fulfill its programming obligations by ignoring the interests of Mississippi’s black population, by censoring programming involving women and minority groups, and by generally excluding controversial material. 95/ The state licensee defended its decision not to air programming that it believed represented a “racist-separatist” point of view or that were too sexually explicit, and the Commission found that “petitioners’ allegations appear to be little more than a disagreement over which programs the Authority should broadcast.” It concluded that “the mere allegation that the licensee ‘will not air the particular programs petitioner would like to have aired does not warrant further administrative inquiry.” 96/
Other Commission decisions at about the same time helped reduce the potential for confusion arising from the AETC and MAET decisions. For example, the FCC rejected a license renewal challenge filed against the Georgia State Board of Education based on allegations that the licensee failed to ascertain local needs, did not air locally-produced programming, and lacked sufficient amounts of minority-oriented programming. 97/ The Commission decided that the obligation to meet local programming needs did not imply a requirement that a station that was part of a state educational network must produce responsive programs locally. It also clarified that a licensee is not required to divide coverage of local issues “according to the racial, ethnic or religious composition of his community.” 98/ The Commission noted that public affairs programming cannot always be “broken down into ‘black points of view’ versus ‘other points of view.’” 99/
Shortly after these decisions were issued, the Commission examined its programming review and ascertainment policies. It noted that the provisions of the Public Broadcasting Act reinforce the idea that “the programming decisions of public broadcasters should be the product of diverse and creative influences, and should be free from government domination.” 100/ With respect to the FCC oversight of licensees, the Commission stressed that its “role in the programming decisions of all broadcasters has always been profoundly affected by its sensitivity to the First Amendment rights of the public and of broadcasters and the specific noncensorship provision of Section 326 of the [Communications] Act.” 101/ Within this statutory framework, the Commission characterized its role as “appropriately limited” to “facilitating the development of the public broadcasting system rather than determining the content of its programming.” 102/
Accordingly, it proposed to eliminate or modify the formal ascertainment and logging requirements imposed on public broadcasters “and to state as specifically as possible the minimum programming responsibility of each public broadcast licensee.” 103/ At the conclusion of the proceeding, the Commission eliminated formal ascertainment requirements and significantly modified program logging requirements. 104/ It took these steps as part of an overall implementation of “reduced routine Commission oversight of programming.” 105/
More recently, the FCC, at the end of the Clinton Administration, proposed the use of a standardized form to replace the issues/program lists, a move that suggests a renewed interest in routine oversight of programming. Noting that “a television broadcaster’s fundamental public interest obligations” include airing “programming responsive to the needs and interests of its community,” the Commission suggested revising the current reporting rules to enhance “the public’s ability to access information on the extent to which broadcasters are serving the public interest.” 106/ Among other things, the proposal would set forth defined categories of programming and require licensees to provide a narrative description in each category, “including a list of the program titles aired, as well as the time, date, and duration of the programs.” 107/ The proposal appears to portend a return of more intensive content regulation, but its prospects for adoption appear dim. As then Commissioner (and now Chairman) Michael Powell observed, “the recommendation that certain categories of programming be identified on the form raises serious First Amendment concerns . . . . I am also troubled by what appears to be a slow step backwards to a subjective review of a broadcaster’s public interest obligations.” 108/
Although the substance of broadcasters’ public interest obligations has changed over time along with FCC procedures to ensure accountability, one requirement has remained constant: licensees’ fundamental duty to exercise independent discretion with respect to programming. 109/ Thus, the Commission has denied a renewal of a noncommercial broadcast license where the licensee failed to maintain adequate supervision over station operations and programming. In 1978 the FCC denied renewal of WXPN(FM), licensed to the University of Pennsylvania, where a maze of delegations and sub-delegations to various employees and student organizations extinguished the station’s ability to investigate and respond to continuing complaints and take corrective action where necessary. 110/ Most of the complaints concerned the content of WXPN’s programming, although the Commission stressed that it was not “pass[ing] judgment on the content of the material broadcast by WXPN(FM).” Rather, it was the licensee’s failure to maintain control that led to the nonrenewal of the license. 111/
The Commission considers maintenance of control over programming as “a most fundamental obligation of the licensee.” 112/ In this regard, “[t]he right to determine, select, supervise, and control programs is inherently incident to the privilege of holding a station license.” 113/ This duty to exert control programming selection “is personal and may not be delegated.” 114/ As the Commission has explained:
The licensee has the duty of determining what programs shall be broadcast over his station’s facilities, and cannot lawfully delegate this duty or transfer the control of his station . . . . The licensee is obligated to reserve to himself the final decision as to what programs will best serve the public interest. 115/
This duty to exercise independent editorial discretion arises from “the legislative design for broadcasting set out in the Communications Act, [that] licensees alone must assume and bear ultimate responsibility for the planning, execution, and supervision of programming and station operation.” 116/ As the Commission stressed in denying WXPN’s petition for reconsideration, “supervision and control is . . . one of the most fundamental and obvious obligations of a licensee ‘entrusted with the use of a precious public resource’” that touches on “the very fabric of our regulatory authority.” 117/
In other decisions the Commission has made clear that noncommercial licensees may delegate programming decisions so long as the licensee maintains ultimate control. The Commission defines control as “every form of control, actual or legal, direct or indirect, negative or affirmative, over basic station policies,” including finances, personnel matters and programming. 118/ Thus, in Alabama Educational Television Commission, the FCC found that AETC’s delegation of certain program functions to a Program Board or program production centers was not an abdication of responsibility because the licensee maintained ultimate control over every aspect of its broadcast operations. 119/ Accordingly, a state noncommercial licensee may accept free use of a university’s broadcast facilities and personnel so long as it does not “surrender control of the stations’ basic policies.” 120/ When a licensee makes programming changes after it becomes aware of FCC complaints, such editorial decisions are within the licensee’s permissible exercise of discretion so long as there are “no impermissible pressures exerted on the licensee to comply.” 121/ On the other hand, a transfer of control has occurred where a state governmental unit issues an edict that divests a licensee of its authority to make programming decisions. 122/
In addition to FCC oversight of public licensees’ programming, Congress also has adopted particular restrictions on the speech of noncommercial broadcasters. Until it was invalidated by the Supreme Court, Section 399 of the Public Broadcasting Act of 1967 provided that “[n]o noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office.” 123/ This provision was amended in 1981 by confining the ban on editorializing to stations that receive CPB grants and separately prohibiting all public stations from “support[ing] or oppos[ing] any candidate for political office.” 124/ The provision relating to candidates was not challenged in court.
The limited discussion of these provisions in the legislative history indicated that a principal reason for establishing CPB was to “remove programming activity from governmental supervision.” Accordingly, educational stations were prohibited from becoming “vehicles for the promotion of one or another political cause, party, or candidate.” 125/ Editorializing was prohibited “out of an abundance of caution” and because testimony indicated that “no noncommercial educational station editorializes.” However, the restriction was not intended to preclude public stations from airing “balanced, fair and objective presentations of controversial issues.” 126/
Congress supplemented these restrictions in 1973 by requiring all noncommercial stations that receive federal funding to “retain an audio recording of each of its broadcasts of any program in which any issue of public importance is discussed.” 127/ In implementing this provision, the FCC required recording and retention of all programs “which consist of talks, commentaries, discussions, speeches, editorials, political programs, documentaries, forums, panels, roundtables, and similar programs primarily concerning local, national, and international public affairs.” 128/ The taping requirement was proposed as a means of increasing congressional oversight over programs presented on public broadcast stations. 129/
The provisions prohibiting editorializing by public stations and requiring taping of certain programs were both successfully challenged in court. The restriction on political endorsements was not challenged. 130/ Both the United States Court of Appeals for the District of Columbia Circuit and the United States Supreme Court invoked the First Amendment in striking down the respective federal limits on public broadcasters’ editorial discretion.
Noncommercial licensees challenged the program taping requirement in Community-Service Broadcasting of Mid-America v. FCC. 131/ A plurality of the court, sitting en banc, found that the statute and implementing regulations provided “a ‘ready mechanism’ not previously available for members of Congress and other governmental officials to involve themselves in disputes over the contents of individual programs and to influence programming decisions in the future.” 132/ Accordingly, a majority held that the provisions placed substantial burdens on noncommercial broadcasters and “present[ed] the risk of direct governmental interference in program content.” 133/
Judge Skelly Wright, who wrote the plurality opinion, said that the requirement “provide[d] a mechanism, for those who would wish to do so, to review systematically the content of public affairs programming.” 134/ He noted that “[t]he vulnerability of noncommercial licensees to official pressures is increased by Section 399(b), for the operation of the taping requirement serves to facilitate the exercise of ‘raised eyebrow’ regulation.” 135/ Although Judge Wright (joined by Judge Wilkey) found that “noncommercial broadcasters, no less than their commercial counterparts, are entitled to invoke the protection of the First Amendment,” the court’s majority invalidated the taping requirement on equal protection grounds. 136/ Notwithstanding the Fifth Amendment rationale of the decision, it appeared that the majority agreed that the First Amendment applies in the public broadcasting context. 137/
In striking down the Section 399 ban on editorializing several years later, a majority of the Supreme Court was more definite about applying the First Amendment. The Court in FCC v. League of Women Voters of California noted that “Section 399 plainly operates to restrict the expression of editorial opinion on matters of public importance, and, as we have repeatedly explained, communication of this kind is entitled to the most exacting degree of First Amendment protection.” 138/ However, reviewing the less rigorous constitutional test historically applied broadcasters, the Court held only that the editorial ban was not sufficiently tailored to the harms it sought to prevent and that its scope far exceeded the government’s stated interest. 139/ The Court indicated that it was not yet willing to reevaluate the First Amendment standard that applies to broadcasters “without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.” 140/ The Court also acknowledged that many public licensees were state entities, but found it unnecessary to address that fact in resolving the First Amendment issues presented. 141/
Viewer and Programmer Access Demands
In another class of cases, threats to the free expression of public broadcasters came not from government edicts but from demands made by program producers and the public. These “public forum” cases ask whether the government’s status as a licensee of noncommercial broadcast stations entitles viewers and program providers to demand “access” to the governmentally-created forum. That is, can programmers assert a constitutional right to gain a platform for expressing their views, and can audience members object to scheduling changes implemented by governmentally-employed editors as “censorship?” The workings of the public forum doctrine in First Amendment law are addressed later in this Report. This section briefly describes major controversies involving public forum claims and their outcomes. 142/
The most prominent public forum controversy arose from the decisions of public broadcasters in two states to cancel a presentation of the docudrama Death of a Princess in 1980. The program explored the motivations and circumstances that reportedly led to the 1977 execution of a Saudi Arabian princess on charges of adultery. The program, produced jointly by the WGBH Educational Foundation and ATV Network of London, England, was one installment in a thirteen-part series distributed to member stations by PBS. Litigation ensued after the Alabama Educational Television Commission and University of Houston station KUHT-TV each decided to pull the program from their respective broadcast schedules.
AETC had received numerous complaints from Alabama residents about the scheduled presentation of Death of a Princess in the week prior to the broadcast date. Many of the protests expressed fear for the personal safety of Alabama citizens working in the Middle East if the program was shown. In response, AETC cancelled the program two days before its scheduled showing. The decision of KUHT-TV to pull Death of a Princess from its schedule was made by a university vice president in charge of public relations. The school issued a press release explaining the “strong and understandable objections by the government of Saudi Arabia at a time when the mounting crisis in the Middle East, our long friendship with the Saudi government and U.S. national interests all point to the need to avoid exacerbating the situation.” 143/
Various parties filed suit over the cancellations. In response to the decision by KUHT-TV to drop Death of a Princess, two viewers asserted that their First and Fourteenth Amendment rights were violated by the scheduling decision. They sought an injunction ordering the station to air the program. Similarly, various Alabama residents challenged AETC’s decision to cancel Death of a Princess on constitutional grounds, and they sought an injunction against AETC’s making “political” decisions on programming.
The two district courts in which the cases were filed reached opposite conclusions. The United States District Court for the Southern District of Texas held that KUHT-TV’s decision to cancel the program was a prior restraint of speech in a public forum, and it ordered the station to air Death of a Princess within 30 days. The court found that KUHT-TV was a public forum, thus entitling viewers to challenge adverse scheduling decisions. 144/ By contrast, the United States District Court for the Northern District of Alabama denied the request for a preliminary injunction and granted summary judgment in favor of AETC. The court noted that the Communications Act gives the licensee the absolute right and nondelegable responsibility to select the programs to be broadcast. Accordingly, AETC’s decision to cancel Death of a Princess was merely the licensee’s exercise of its obligation to make programming decisions. Finally, it concluded that the functioning of a broadcast station is fundamentally inconsistent with the concept of a public forum. 145/
Separate panels of the United States Court of Appeals for the Fifth Circuit reached the conclusion that public broadcast stations were not public forums, thus affirming the district court decision in Alabama 146/ and reversing the Texas decision. 147/ Reviewing the two panel decisions en banc, the entire Fifth Circuit reaffirmed the holding that public broadcast stations are not public fora, and that private parties have no right of access to compel the broadcast of any particular program. 148/ The court noted that “[t]he pattern of usual activity for public television stations is the statutorily mandated practice of the broadcast licensee exercising sole programming authority.” 149/ Accordingly, because the public is not given general access to the station, the court concluded that the facility “by definition is not a ‘public forum’” and an excluded speaker “is without grounds for challenge under the public forum doctrine.” 150/
One point of disagreement between the Muir panel and en banc rulings involved the extent to which public broadcasters are protected by the First Amendment. The Fifth Circuit panel found that noncommercial public licensees do not forfeit their First Amendment rights “merely because they are publicly supported.” Accordingly, it held that “AETC’s refusal to broadcast ‘Death of a Princess’ was a legitimate exercise of its statutory authority as a broadcast licensee to make its own programming decisions and is protected by the First Amendment guarantee of freedom of the press.” 151/ The en banc court, on the other hand, while finding that the First Amendment “does not preclude the government from exercising editorial control over its own medium of expression,” was loathe to find that a public licensee has constitutional rights. It found that “as state instrumentalities, these public licensees are without the protection of the First Amendment.” 152/
In a more recent controversy, the United States Court of Appeals for the Eighth Circuit held that noncommercial licensees did not create a public forum by allowing sponsors to make enhanced underwriting announcements. 153/ The case involved a demand by the Ku Klux Klan to sponsor segments of All Things Considered and to air underwriting announcements on public radio station KWMU, licensed to the University of Missouri. 154/ When the station refused, the KKK filed suit, claiming that the enhanced underwriting program is a public forum. The United States District Court for the Eastern District of Missouri rejected this claim and granted the station’s motion for summary judgment. The Court of Appeals affirmed, holding that the underwriting announcements constituted “government speech,” and, quoting Muir, finding that “the First Amendment does not preclude the government from exercising editorial discretion over its own medium of expression.” 155/
A specialized class of public forum cases involve the sponsorship of political debates by public broadcasters. From time to time courts have been asked to determine whether public broadcasters create a public forum when they sponsor debates between political candidates. The consequence of such a finding would be to limit the public station's editorial control over the debate participants – it would be obligated under the First Amendment to accept all candidates who wanted to participate. Such a finding would curtail a public station’s ability to act in a journalistic capacity to present only those candidates it deems to be newsworthy. As the case law has developed in this area, reviewing courts have concluded that public broadcasters do not create a public forum by sponsoring political debates, at least in most cases. However, under certain circumstances, public broadcasters may take on the obligations of the public forum. The relevant case law is discussed below.
In Chandler v. Georgia Public Telecommunications Commission, the United States Court of Appeals for the Eleventh Circuit decided in 1990 that the Georgia Public Telecommunications Commission did not intend to open a forum for all candidates when it sponsored debates between the Republican and Democratic candidates for the offices of Governor and Lieutenant Governor. 156/ Rather, the court held that the public broadcasting commission was performing its function of “‘providing educational, instructional, and public broadcasting services to the citizens of the State of Georgia.’” 157/ The Eleventh Circuit emphasized that public broadcast stations must be free to decide whether to air debates, and which candidates to include. 158/ Noting the ways in which public forum status would hobble journalistic judgment, the court found that “[t]he values sought to be fostered by the First Amendment would be frustrated, not furthered, by the fitting of such harnesses on public television.” 159/
The decision in Chandler was consistent with a ruling issued by the United States Court of Appeals Eighth Circuit that same year. In DeYoung v. Patten, the court held that a debate on Iowa Public Television was not a public forum and that a third party candidate could not raise a constitutional objection where the debate included only the two major party candidates. 160/ The court reasoned that the nature and purpose of a public broadcaster-sponsored debate simply is “‘not compatible with unrestricted public access, or even with unrestricted access by a particular class of speakers.’” 161/ However, DeYoung subsequently was overruled by the Eighth Circuit sitting en banc in Forbes v. Arkansas Educational Television Communication Network Foundation (“Forbes I”). 162/
In Forbes, the state-owned public broadcasting network had invited only the major party candidates to participate in a debate, excluding independent candidate Ralph Forbes. The United States Court of Appeals for the Eighth Circuit had held that the debates were a designated public forum and that Forbes had a First Amendment right of access as a legally qualified candidate for Congress. The court noted that “[a]s a state actor, AETN is faced with constraints not shared by other television stations,” and concluded that “a state agency does not have an absolute right to determine which of the legally qualified candidates for a public office it will put on the air.” 163/ Because the District Court initially had dismissed the case, the court of appeals sent the matter back for a trial on the merits.
On remand, the District Court once again decided the case in AETN’s favor. However, the Eighth Circuit again reversed the District Court and held that a candidate debate on a state-owned television station is a limited public forum because such events are “staged in order for the candidates to express their views on campaign issues.” 164/ The court noted that “AETN, by staging the debate, opened its facilities to a particular group – candidates running for the Third District Congressional seat.” 165/ Because there was no suggestion that AETN had exerted any type of political favoritism, the decision underscored the difference between state-owned broadcasters and private licensees in their ability to make editorial choices. The court declared:
We have no doubt that the decision as to political viability is exactly the kind of journalistic judgment routinely made by newspeople. . . . But . . . the people making this judgment were not ordinary journalists: they were employees of government. . . . A journalist employed by the government is still a government employee. 166/
The Supreme Court reversed the Eighth Circuit’s Forbes II decision and held that a third-party congressional candidate does not necessarily have a First Amendment right to participate in a public television-sponsored candidate debate. 167/ The Court held that public broadcast stations generally should not be considered to be public fora, noting 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.” 168/ At the same time, the Court concluded that “[t]he special characteristics of candidate debates support the conclusion that the . . . debate [at issue in that case] was a forum of some type.” 169/
The Court described candidate debates as a “narrow exception to the rule” that programming on public stations is not subject to public forum analysis because “the debate was by design a forum for political speech by the candidates,” the views expressed were those of the candidates, and the purpose of the debate was “to allow the candidates to express their views with minimal intrusion by the broadcaster.” 170/ On the particular facts of the case, the Court found that the AETN debate was a non-public forum rather than a designated public forum because the Arkansas network did not create an open-microphone format available to all candidates; it expressly restricted debate access to “newsworthy” candidates based on its independent news judgment; and it did not invite or exclude candidates based on their political viewpoints. 171/
The Supreme Court’s holding in Forbes does not require state-licensed public broadcasters to employ pre-established, objective criteria by which to determine candidate eligibility for debates. However, the Court’s analysis of the debate at issue, and its conclusion that debates sponsored by state-licensed entities are “a forum of some type,” places great significance on the policies employed by public broadcasters when they sponsor candidate forums. It focused on the fact that the candidate debate in question was a news program and the participants were selected on the basis of their newsworthiness.
Ultimately, the Court found AETN’s selection of candidates to be reasonable to the extent it was based on such factors as voters’ assessments of the candidates (e.g., public opinion polls), the extent of news media coverage of the various candidates, their inclusion in election reports, their level of financial support, the extent to which candidates had formal campaign organizations, headquarters and/or volunteers, and the overall extent of public interest in the candidacies. The Court suggested additional indicia of reasonableness for selecting participants, such as the amount of time available for the debate compared to the total number of candidates. 172/
In another case, the United States Court of Appeals for the Eighth Circuit treated a news interview program as if it were a debate. Marcus v. Iowa Public Television, 97 F.3d 1137 (8th Cir. 1996). Although the court analyzed the news interview as a limited public forum (under the yet-to-be reversed holding in Forbes II), it upheld the broadcaster’s decision to invite only the major party candidates to participate. Following the Supreme Court’s decision in Forbes, the full Eighth Circuit reaffirmed the decision in Marcus. 173/
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, such as programming relating to sex education. 174/ In other instances, states may seek to impose certain regulatory requirements on particular types of programming, such as political broadcasts. Maine, for example, tried to prohibit public television stations from carrying interviews with political candidates. 175/ New Jersey, on the other hand, requires that state-owned public television stations provide balanced and fair coverage of all state elections. 176/ Control may also be imposed by appropriations decisions, since state legislatures provide significant funding for public broadcasting.
In 2000, the Idaho legislature adopted content restrictions and programming monitoring requirements for Idaho public television as a reaction to the presentation of programming that the legislators considered too sympathetic to the homosexual lifestyle. 177/ The movement to impose content restrictions began after Idaho Educational Public Broadcasting System (“IEPBS”) broadcast the documentary It’s Elementary: Talking About Gay Issues in School. Supporters of the legislation also complained about other public television programs, including a dramatization of Madame Bovary, a documentary that “brutally attacked” the use of public lands for grazing, and a PBS documentary Culture Shock that depicted controversies caused by French impressionist art. 178/
In response, the legislature adopted restrictions as part of the appropriations bill for Idaho Public Television for fiscal year 2001. In brief, Idaho House Bill 768 restricted IEPBS by prohibiting the broadcast of any program “which promotes, supports or encourages violation of Idaho criminal statutes.” The law also provided that “[a]ny decision to broadcast programs expected to be of a controversial nature, including programming format,” must be monitored by the State Board of Education, which is required to report to the Joint Finance-Appropriations Committee of the legislature. 179/
Under the procedures adopted to implement these restrictions, IEPBS was required to follow written procedures for selecting programming, subject to prior approval of the State Board of Education. It also was directed to submit its monthly programming decisions to the Board for advance review. In addition, IEPBS was required to broadcast daily warnings that some programming may show acts that violate Idaho criminal law and other daily warnings suggesting that, due to the potentially controversial nature of some programs, families should exercise discretion as to what to view. Finally, IEPBS was required to keep records and provide quarterly reports detailing what programs have been broadcast in content categories covered by the law. The Idaho restrictions generated a great deal of controversy and national media attention, but were not challenged in court. However, the funding limits were not renewed by the legislature and expired in mid-2001.
Such problems tend to recur in a variety of settings. In April 2002, the Missouri House of Representatives voted to withhold $720,000 in state funding from the University of Missouri to show its displeasure with the School of Journalism and the university-owned commercial television station. The budgetary action was prompted by a policy of the station’s news director forbidding reporters from wearing red, white and blue ribbons or flags when they work in the newsroom. 180/ Although this controversy did not arise in the public broadcasting context per se, it illustrates the type of political retaliation that can accompany disfavored editorial or news policies.