Public Broadcasting a report and Analysis

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II. Constitutional and Statutory Approaches to Protecting Free Expression in Public Broadcasting

  1. Free Expression and the Unique Status of Public Broadcasters

This Report is entitled “Freedom of Expression in Public Broadcasting” and not “The First Amendment and Public Broadcasting” because application of the First Amendment in this area is not necessarily a straightforward proposition. Where the licensee is the state, it is not obvious that the First Amendment applies at all. The 1983 analysis explored various First Amendment theories to support First Amendment protections for public broadcasters, but cautioned that such arguments were “untested” in court and suffered from a number of weaknesses. See 1983 First Amendment Analysis at 77-86. A follow-up analysis described the First Amendment protection for public broadcasters as “uncertain,” noting that “it is not clear when public broadcasters will be considered as acting on behalf of the state.” 181/ The 1983 report also concluded that First Amendment arguments would not protect public broadcasters from funding cuts and changes in personnel. Id. at 81-82, 87.

Many of the questions that were untested in 1983 about the First Amendment’s application to public broadcasting to a certain degree remain unresolved today. However, there have been significant developments in First Amendment doctrine generally in the past two decades (including public forum law) as well as the law governing broadcast regulation and public funding. Some First Amendment arguments that lacked support two decades ago may be stronger today. In addition, case law suggests other arguments to protect free expression and editorial discretion without reliance on First Amendment theories. Accordingly, this Report explores ways to preserve free expression and editorial discretion whether or not a First Amendment argument may be made.

The type of argument that may best preserve freedom of expression will depend largely on the nature of the threat presented. As described so far in this Report, public broadcasters’ editorial discretion may be influenced or restricted in various ways – federal funding controls and content regulations, private litigation by viewers and would-be speakers, and state programming restrictions. As a consequence, in meeting the various challenges to free expression in this history of public broadcasting no single theory or approach has prevailed. And, for the same reason, no coherent or consistent strategy for preserving the editorial independence of public broadcasters has emerged.

One reason for the lack of coherence is that the arguments used to protect public broadcasters from particular threats to a certain extent conflict with one another. For example, the court in Muir held that public broadcasters are not a public forum and that viewers cannot compel the airing of a particular program because “public licensees are without the protection of the First Amendment.” It stressed that the government may exercise editorial control over “its own medium of expression.” 182/ While this finding effectively protected the broadcasters’ editorial control against audience demands in that case, it would not help a public broadcaster fight a state’s effort to censor broadcast programming. Indeed, a state government logically could use the Muir language to support content restrictions. One argument against state government control of public broadcasting programming is the supremacy of the federal licensing scheme. However, an argument that FCC licensing requirements should preempt state content controls appears to concede significant federal authority to regulate programming content. Finally, an argument that the First Amendment extends to state-licensed media may lend credence to the argument that public broadcasters should be treated as public fora.

The challenge facing public broadcasters is not so much the need to make arguments that preserve their editorial discretion, so much as to develop successful arguments that maximize their rights consistently in all of the situations in which free expression has been threatened. Public broadcasters have had a good track record in preserving their editorial independence thus far, although doing so has required significant effort. Courts have upheld public broadcasters’ right 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. Whether addressed politically or through the judicial process, each incident has required a reasoned response, and the arguments made in each case have drawn from the analysis and case law that has gone before.

While the first priority in the face of a particular challenge must be to devise a strong argument to protect the broadcaster’s editorial choices in the case in which the threat arises, it also is important to consider what form the next challenge to free expression may take. It could emerge from federal content regulations or funding restrictions; it might result from a private lawsuit challenging a public broadcaster’s editorial choices; or it could be generated by state or local programming restrictions. While public broadcasters must respond to the particular problem presented the them, an effective response must take into account the effect a positive ruling might have on other aspects of broadcasters’ editorial discretion. The decision in Muir provides a telling example: a state-licensed public television network successfully defended its ability to control its programming schedule against the demands of viewers, but the court also held that state-owned public broadcasters lack any protection of the First Amendment. As this example attests, 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, which may arise in an entirely different context.

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