Public Broadcasting a report and Analysis

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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 access to citizens under the public forum doctrine? Precedent clearly establishes the fact that the government is constrained by the First Amendment when it creates a public forum. But from the public broadcaster’s perspective, is the price of First Amendment “protection” the loss of editorial control vis-à-vis the audience?

Case law provides some answers to these questions, as discussed previously in this Report. However, the case law is episodic and its doctrinal underpinnings are not always clear. This analysis examines whether public broadcasting is properly characterized as government speech or whether it is governed by the public forum doctrine. Neither of these choices is entirely helpful from the perspective of maximizing free expression. If public broadcasters are considered “government speakers,” they do not have independent editorial rights from government interference at all, but if they are considered to be a public forum, they must provide some type of public access. One recent analysis described this dichotomy as “an endless circle, at the edge of a chasm between government speech and the public forum.” 183/ Accordingly, 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.

  1. Public Broadcasters as Government Speakers

Government “speech” takes many forms. Government may speak directly, by conveying factual information, taking a position on a matter of public policy, or criticizing the ideas of others. As Judge (now Justice) Antonin Scalia has written, “[w]e know of no case . . . which . . . suggest[s] that ‘uninhibited, robust, and wide-open debate’ consists of debate from which the government is excluded.” 184/ Accordingly, the government speaks on behalf of its citizens “when it airs advertisements warning of the dangers of cigarette smoking or drug use, praising a career in the armed services, or offering methods for AIDS prevention.” 185/ The government at all levels “publishes ‘journals, magazines, periodicals, and similar publications’ that are ‘necessary in the transaction of the public business.’” 186/

In other circumstances, government participates in the marketplace of ideas by subsidizing speech, or by selecting from among various voices or messages. For example, local school boards have “a substantial legitimate role to play in the determination of school library content,” and education officials must make choices between subjects to be offered and competing areas of academic emphasis. 187/ Universities may provide funding for various student activities that involve speech. 188/ The government may distribute grants to promote speech or artistic excellence. 189/ And it may impose certain conditions on the speech of those who accept government assistance. For example, in Rust v. Sullivan, the Supreme Court upheld regulations prohibiting the use of funds under Title X of the Public Health Service Act from supporting counseling concerning the use of abortion as a method of family planning. 190/

When it is clear that the government is the speaker and is delivering its own message, it is doubtful that the First Amendment applies at all. To do so presents a conceptual problem: How can the government be constitutionally protected from itself? As former Justice Potter Stewart wrote in CBS, Inc. v. Democratic National Committee, “[t]he First Amendment protects the press from governmental interference[;] it confers no analogous protection on the Government.” 191/ Professor Mark Yudof agreed in his seminal work When Government Speaks that “[t]he First Amendment has been viewed historically as involving limitations on government, not as a source of government rights.” 192/ Accordingly, the United States Court of Appeals pointed out in Muir that public television stations are “state instrumentalities” and, as such, “are without the protection of the First Amendment.” 193/ Similarly, in Knights of the Ku Klux Klan, the United States Court of Appeals for the Eighth Circuit held that “the First Amendment does not preclude the government from exercising editorial discretion over its own medium of expression.” 194/

However, even where the government provides substantial assistance for expressive activities, it is not always clear when it should be considered the “speaker” for purposes of such a constitutional analysis. Where government programs support or facilitate speech, but do not necessarily deliver the government’s message, courts in some cases have applied the First Amendment to limit or overturn restrictions on speech. In this regard, various courts have struck down government censorship of state-sponsored publications. 195/ For similar reasons, in FCC v. League of Women Voters of California, the Supreme Court invalidated funding conditions that prohibited editorializing by noncommercial broadcasters. 196/ Courts have also made clear that the government cannot engage in invidious discrimination or impose partisan preferences when it subsidizes or sponsors speech activities. 197/ For example, “if a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books.” 198/

Although the courts in Muir and Knights of the Ku Klux Klan assumed that state-operated public broadcast licensees necessarily are government speakers, an assumption shared by a number of academic commentators, 199/ the status of public broadcasters has never been resolved definitively. 200/ This issue was presented squarely in Forbes, where the federal government took the position that the Arkansas Educational Television Commission was a government speaker. 201/ However, the Supreme Court declined to provide a clear answer on this issue, although it upheld the public broadcaster’s ability to exercise editorial discretion.

The Court in Forbes compared AETC’s editorial choice to that of “a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum,” but nevertheless held that some types of candidate debates may be public forums when sponsored by public licensees. 202/ For example, a station that simply opened its facilities to transmit the unmoderated views of all candidates for a particular race would be considered to have designated a public forum. In most other respects, the Court concluded that public broadcasting “does not lend itself to scrutiny under the forum doctrine.” 203/ Ultimately, however, its decision to uphold AETC’s use of journalistic judgment did not turn on the assumption that the state network was a government speaker, but on the premise that all broadcast licensees, both public and commercial, are statutorily required “to exercise substantial editorial discretion in the selection and presentation of their programming.” 204/

By avoiding choosing sides in the debate over the government speech-public forum dichotomy, the Supreme Court in Forbes preserved the possibility that the First Amendment may protect public broadcasters from some types of government action. Although the Court’s analysis of the extent to which broadcasters are entitled to exercise editorial discretion was based on the Communications Act and not the Constitution, the underlying logic may have implications for the First Amendment. Just as the First Amendment may protect a government-sponsored publication, it also may cover a state entity that is created (and licensed by the federal government) for the purpose of exercising independent editorial judgment. Such institutions, it may be presumed, were not created for the purpose of delivering the government’s message, and therefore should not be considered government speakers.

Professor Yudof illustrated this point by noting the very different experience with public broadcasting abroad. There is little question that public broadcasters are “government speakers” in nations such as France, where the state broadcasting monopoly was long tightly controlled by various central government officials, leading to persistent allegations of “propaganda and bias in favor of the government in charge.” 205/ By contrast, in the United States there have been few claims that public television “is a propaganda arm of the executive or legislative branches.” If anything, “controversy has centered on the possibility that an overly independent public television network would become dominated by biased elites, unfettered by congressional scrutiny of the expenditure of tax dollars.” 206/ Control over public broadcast licensees in the United States is decentralized and delegated to various agencies “which, despite their quasi-public nature operate more as private fraternities or foundations than as government bodies.” A condition of the license is that editorial control must reside in the individual licensees. Consequently, there is no valid analogy between public broadcasting stations and classic examples of government speech such as “Voice of America, Stars and Stripes, or a university administration’s campus newsletter.” 207/

  1. Public Broadcasters Under the Public Forum Doctrine

The public forum doctrine emerged from Supreme Court cases as the primary analytic tool for applying the First Amendment to government property dedicated for expressive purposes. Although the doctrine originated with cases involving meetings on public thoroughfares, 208/ it evolved over the years to encompass any form of government property that can be used as a “channel of communication.” Courts have devised three categories in which public property may be considered public fora: (1) the traditional public forum, such as streets, sidewalks and public parks, in which members of the public generally have a right to engage in speech activities; (2) the designated public forum, such as university meeting rooms, which have been intentionally opened for expressive purposes for identified groups (e.g., student organizations); and (3) the non-public forum, such as an intra-school mail system, which has not been generally opened to the public for communicative purposes. 209/

In some ways, a broadcast station licensed to the government for purposes of public communication seems like a natural example of a public forum. However, the government’s mere creation of a channel of communication is not alone sufficient to designate a public forum. “Not every instrumentality used for communication . . . is a traditional public forum or a public forum by designation.” 210/ Indeed, even where the property involved has no function other than communication, a public forum may not have been created. Consequently, the Supreme Court has declined to accord forum status to advertising space on buses, 211/ mail boxes, 212/ billboards, 213/ high school student newspapers, 214/ charitable campaign drives in federal offices, 215/ and internal school mail systems, 216/ although all are avenues of communication controlled by the government. In the context of electronic media, the Court declined to hold that leased and public access channels on cable television systems are governed by the public forum doctrine, even though such channels clearly involve expressive activity. 217/

The relevant question in identifying a limited public forum is whether the government has shown a “‘clear intent to create a public forum.’” 218/ The government does not create a limited public forum “by inaction or by permitting limited discourse.” 219/ That selective groups or individuals are permitted to use public property, moreover, “does not transform [it] into a public forum.” 220/ Instead, the government must have, “‘by policy or by practice,’” intentionally opened the forum “‘for indiscriminate use by the general public, or by some segment of the public.’” 221/ The Supreme Court has identified a variety of factors that reflect the government’s intention to create a public forum, including its practice or policy of allowing or disallowing unrestricted speech in the forum, the characteristics of the property, and, importantly, the government’s stated purpose. 222/ Analysis of the government’s intent also depends on the role it is performing in a particular case. Where the government acts “as a proprietor, managing its internal operations,” rather than “as [a] lawmaker with the power to regulate or license,” its actions are subject to lesser scrutiny. 223/ In such cases, the Supreme Court repeatedly has found that a limited public forum was not created. 224/

Understanding this background on the public forum doctrine is necessary to analyze ways to maximize the editorial discretion of public broadcasters. In cases such as Muir and Knights of the Ku Klux Klan, the respective courts held that public broadcasting stations are not a public forum, but also held that the licensees were government speakers. The upshot of those decisions was that viewers or would-be underwriters could not dictate broadcasters’ program schedules, but that state officials could do so. On the other hand, a decision limiting the authority of state officials to control their own program schedules – i.e., applying the First Amendment to public broadcasting via the public forum doctrine – would have drastically limited the editorial independence of station managers. The difficult question is how best to preserve the discretion of public broadcasters from both public demands and political manipulation.

Fortunately, the decision in Forbes provides some direction about application of the public forum doctrine to state-licensed noncommercial broadcasters. Noting that the public forum doctrine arose “in the context of streets and parks” the Supreme Court cautioned that it “should not be extended in a mechanical way to the very different context of public television broadcasting.” It further observed 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.” 225/ Nevertheless, the Court found that public broadcasters may create a public forum when they transmit particular programs designed for open access, but that such programming is a “narrow exception to the rule.” A candidate debate may qualify as a public forum where “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.” 226/

On the facts of Forbes, the Supreme Court found that the AETN debate was a non-public forum because the public licensee did not create an open-microphone format available to all candidates but instead exercised its news judgment and editorial discretion. AETN 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. 227/ In other words, the Court accorded the noncommercial licensee the rights of a journalistic organization essentially because it acted like one.  By the same token, if AETN had demonstrated its intent to designate the debate as an open candidate forum, it would have been so treated.

Although the Supreme Court’s decision in Forbes reflected a pragmatic approach to deciding the immediate case before the Court, it did not resolve the broader doctrinal question of the constitutional status of state-owned broadcast stations. 228/ By straddling the public forum and government speech analyses, the Court “clung to the wreckage of doctrines designed for the demonstrably different situations of earlier First Amendment controversies.” 229/ The decision was couched within the rubric of the public forum and government speech doctrines (without fully committing to either), but the Court’s reasoning suggested that the most important factor was that it was willing to view AETN more as a journalistic enterprise than as a government institution. 230/

  1. 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. No such analysis for public broadcasting stations has yet been articulated by the courts, but the trend of recent decisions suggests that an argument for constitutional protection of certain institutions may be plausible. In short, it could be argued that the First Amendment protects the journalistic integrity of government-sponsored institutions, like public broadcast stations, that are created for the purpose of exercising independent editorial judgment.

This argument would borrow elements from both the public forum and government speech cases but would not strictly fall under either doctrine. It would recognize, for example, that the government’s relationship with speech falls along a “complex spectrum, not a bipolar one.” 231/ That is, when it comes to speech the government acts in various roles including censor, regulator, manager, employer, policymaker, patron and speaker or publisher. 232/ A government-sponsored speech enterprise would be distinguished from pure “government speech” in that it would be established for the purpose of exercising independent editorial judgment, not to disseminate the state’s message. It would also be distinguished from the designated public forum in that the purpose of the speech enterprise would not be to create an open platform for all speakers. Like a designated public forum, however, the speech enterprise would come into being only by deliberate action and could be eliminated at the government’s option. No constitutional principle would require the government to create a speech enterprise, but once it does so it would be obligated to adhere to First Amendment principles.

The Supreme Court has begun to address this issue, although in Forbes it stopped short of establishing a constitutional basis for its support for editorial discretion. However, in Legal Services Corp. v. Velazquez, the Court applied the First Amendment to invalidate funding restrictions that limited the speech of government-funded attorneys. 233/ In an opinion written by Justice Kennedy (who also wrote the majority opinion in Forbes), the Justices voted 5-4 to strike down a funding condition that prohibited legal aid lawyers from engaging in representations attempting to amend or otherwise challenge the validity of existing welfare laws. The Court analyzed prior cases involving government speech and the public forum and held that the government cannot constitutionally fund a particular speech activity and then impose conditions “which distort its usual functioning.” 234/

The case dealt with funding restrictions imposed on the Legal Services Corporation, but the majority opinion applied the same reasoning to other speech enterprises including universities and public broadcast stations. In the case of legal aid lawyers, the Court held that providing legal assistance to indigent individuals and, at the same time, “[r]estricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” 235/ It also cited Forbes and Rosenberger to suggest that the government “could not elect to use a broadcasting network or a college publication structure in a regime which prohibits speech necessary to the proper functioning of those systems.” 236/ In a particularly important passage, the Court explained:

Where the government uses or attempts to regulate a particular medium, we have been informed by its accepted usage in determining whether a particular restriction on speech is necessary for the program’s purposes and limitations. In FCC v. League of Women Voters of Cal., 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984), the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium. See id., at 396-397, 104 S.Ct. 3106. In Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666, 676, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), the dynamics of the broadcasting system gave station programmers the right to use editorial judgment to exclude certain speech so that the broadcast message could be more effective. 237/

The Court’s reasoning in Velazquez strongly suggests that the government must adhere to the First Amendment principles that are appropriate to the nature of the activity in question when it creates or sponsors a speech enterprise. The majority stressed that the public forum cases were not “controlling in a strict sense” but that they provided “some instruction” in how to apply this theory. 238/ It distinguished Rust v. Sullivan, where the Court upheld restriction on doctors’ speech about abortion, as a case involving “government speech.” 239/ The Court characterized the legal services program as being designed “to facilitate private speech, not to promote a governmental message,” and to function within the institutions of the “legal profession and the established Judiciary of the States and Federal Government.” 240/

Finding cognizable First Amendment interests in cases of this type will require courts “to inquire much more deeply into the specific character of the institution, and the functions it serves” 241/ than they have in the past, and the Court in Velazquez did just that. It examined the purposes for which the LSC was created (assisting indigent clients in litigation over welfare benefits), the traditional purposes of litigation (“the expression of theories and postulates on both, or multiple, sides of an issue”), and the primary mission of the judiciary (“[i]nterpretation of the law and the Constitution”), and concluded that the statute imposed a “serious and fundamental restriction on advocacy of attorneys and the functioning of the judiciary.” 242/ As confirmed by the dictum citing Forbes and Rosenberger, the logic of Velazquez is not limited to the government’s decision to fund legal services. Professor Frederick Schauer has written that if a jurisprudence extending First Amendment protection to entities sponsored by government is to develop, “institutions that have a certain First Amendment aura – the arts, libraries, universities, and the institutional press, for example – would serve as leading candidates.” 243/

Various cases have already identified such a “First Amendment aura” as an inherent aspect of certain state-sponsored institutions. For example, the Supreme Court has recognized universities as the quintessential “marketplace of ideas” with a “tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” 244/ Even when it upheld funding restrictions on abortion-related speech by doctors in Rust v. Sullivan, the Court emphasized that “the university is a traditional sphere of free expression so fundamental to the functioning of our society that the government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” 245/  Similarly, courts have routinely rejected claims that government editors have no right to select which articles and advertisements they will choose to publish. 246/ Although these cases often are analyzed under the public forum doctrine, they also recognize the inherent function of editorial discretion in state-sponsored publications. 247/

The same reasoning suggests that state-owned public broadcast licensees should be the very paradigm of the government-sponsored speech enterprise. They are chartered under state laws that, for the most part, support editorial autonomy248/ and are licensed pursuant to a federal law that requires them to exercise independent editorial judgment. State noncommercial licensees generally are staffed by broadcast professionals who provide a journalistic service, further distancing their operations from political decisionmaking. 249/ Such an institution should be constitutionally protected against restrictions that would preclude it from fulfilling its intended function. As the Supreme Court noted in Velazquez, “the dynamics of the broadcasting system gave station programmers the right to use editorial judgment.” 250/

Such protections would not be unlimited. Just as the government may designate a public forum for particular types of speech, it should be able to sponsor a speech enterprise for specified purposes. 251/ Consequently, this theory of constitutional protection would be unlikely to support a challenge (if one were ever made) to Communications Act and FCC requirements that public stations be “educational” and “noncommercial.” Nor would this theory preclude a finding that a public broadcasting station has created a public forum for certain types of programs where it has exhibited the requisite intent to provide open access. As the Supreme Court explained in Forbes, candidate debates generally are considered to be “a forum of some type” and may be considered a designated public forum where the broadcaster uses an “open microphone” format for all candidates. 252/

Finally, a word of caution is warranted. Although an argument to extend First Amendment protection to state-owned public broadcast stations appears to be promising, such a theory has not been definitively articulated by the Supreme Court. The Court in Velazquez stressed that the funding restrictions on LSC affected “private speech,” and it may not be willing to extend its holding to a case where the speaker is a state licensee. The references in dictum to Forbes and League of Women Voters in Velazquez suggest that the Court may be ready to apply the same reasoning to state-licensed broadcasters. But Velazquez was narrowly decided by a 5-4 vote; a different set of facts could lead to a different result. In this regard, it is important to note that extending First Amendment protection to certain “institutions” would represent a significant expansion of constitutional doctrine. 253/ Finding such a right would be one thing, and applying it in a coherent manner might be quite another. For example, where the public broadcaster has a recognizable First Amendment right to editorial discretion and the license is held by the state, who are the proper parties when content restrictions are imposed by state government? It is an easier case where the licensee’s rights are asserted against an outsider, as in the Forbes case, but more difficult where different political subdivisions of the state are on both sides. Problematic questions such as this will be resolved case by case, if such controversies result in litigation. Public forum cases may provide guidance by analogy, as the Velazquez majority noted, but the public forum doctrine has never been considered a model of judicial clarity. For purposes of this Report, however, it is sufficient to say that, in an appropriate case, an argument may be made to support First Amendment protection for a state licensee’s editorial judgments.

  1. Application of Legal Arguments to Particular Threats to Free Expression

Free expression by public broadcasters may be threatened in various ways. Restrictions may be imposed on editorial decisions by federal regulation or by funding mandates. State governments may seek to regulate broadcast speech either by direct regulation or through the power of the purse. Individuals may demand access to the licensee’s station or otherwise seek to control broadcast content. This section of the Report reviews legal arguments that may be used to combat such threats to editorial independence, bearing in mind the need to maintain a consistent approach.
  1. Federal Programming Restrictions and the First Amendment

By their nature, noncommercial licensees do not have the same editorial flexibility as commercial station owners. Public broadcasters are charged with the mission of providing programming for “instructional, educational, and cultural purposes;” 254/ cannot endorse or oppose political candidates; 255/ and are prohibited from broadcasting advertisements. 256/ Public broadcasters have not challenged these mission-defining limits, 257/ and potential First Amendment arguments about such requirements do not seem promising. 258/ Other restrictions on free expression, such as the ban on editorializing and the requirement that noncommercial stations retain recordings of “controversial” programming, are inconsistent with the mission of public broadcasting and have led to successful constitutional challenges. 259/ It is quite likely that additional content restrictions that are incompatible with the mission of public broadcasting may arise in the future, since questions that involve broadcast content seem to be endlessly fascinating to policymakers.

One example of potential federal content restrictions is S. 341, The Children’s Protection From Violent Programming Act, introduced by Senator Ernest Hollings last year. 260/ An identical House bill, H.R. 1005, was introduced in March by Rep. Ronnie Shows. If enacted into law, S. 341 would make the V-chip ratings system mandatory and would require that programs be specifically rated for “violent” content. In addition, the FCC would be required to ban any distribution of violent programs before late night hours if it finds that the use of V-chips is “insufficiently effective” to protect children. If enacted, the legislation would most likely impose a far-reaching ban for significant periods of the broadcast day on a broad range of constitutionally-protected programs, from war documentaries to acclaimed dramas such as I, Claudius.

The challenge to public broadcasters posed by measures such as S. 341 is to find arguments to preserve editorial freedom without undermining legal theories that might be used to combat other types of content controls. In this example, it would be necessary to devise an argument that could effectively limit federal content restrictions without extinguishing elements of federal jurisdiction that might help combat state content controls. As explained below, the federal statutory scheme that includes licensing requirements and FCC oversight over programming has preemptive authority over inconsistent state requirements. Thus, a First Amendment argument challenging new FCC content controls would need to be reconciled with the basic statutory scheme of the Communications Act.

In the case of a measure such as S. 341, or an action such as increased enforcement of the FCC’s indecency policy, the burden on free expression would rest on commercial and noncommercial broadcasters alike. One strategy for combating such intensive content regulation is to argue that the Communications Act seeks to preserve First Amendment values by maximizing licensees’ editorial discretion. In this regard, reviewing courts have long recognized the “delicate balance” between FCC oversight and editorial independence and have noted that the Commission must “walk a ‘tightrope’ to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act.” 261/  As a consequence, under the Communications Act, licensees are to be held “only broadly accountable to public interest standards.” 262/  As the Supreme Court put it, “[f]or better or worse, editing is what editors are for; and editing is selection and choice of material.” 263/ In light of these concerns, the FCC has tended to avoid imposing specific programming requirements because doing so would create a “high risk that such rulings will reflect the Commission’s selection among tastes, opinions, and value judgments, rather than a recognizable public interest,” and “must be closely scrutinized lest they carry the Commission too far in the direction of the forbidden censorship.” 264/

The Commission has performed this constitutional balancing act by relying primarily on the editorial discretion of individual broadcast licensees as the best measure of the public interest. Accordingly, “television broadcasters enjoy the ‘widest journalistic freedom’ consistent with their public responsibilities.” 265/ One of a licensee’s fundamental obligations under the Communications Act is to maintain editorial control over its station. 266/ In this regard, 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.” 267/ “Among the broadcaster’s responsibilities is the duty to schedule programming that serves the ‘public interest, convenience, and necessity.’” 268/

In reviewing this statutory framework, the Supreme Court has in the past upheld some federal requirements designed to promote “more speech” 269/ while rejecting rules that restrict speech. 270/ The Court has emphasized that “the unifying theme of these various statutory provisions is that they substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations’ ability to speak on matters of public concern.” 271/

Putting FCC content regulations in historical context, the Commission generally has exhibited an increasing reluctance in the past two decades to exert direct authority over broadcast content, 272/ and appears to have less constitutional latitude to engage in such regulation even if it wanted to do so. The Supreme Court’s 1984 decision in League of Women Voters invalidating the ban on editorializing by public broadcast stations is a notable example, although the Court stopped short of limiting the FCC’s general public interest authority. 273/ Three years later, however, the FCC eliminated the “fairness doctrine” because it interfered with the editorial prerogatives of broadcasters. 274/ More recently, the Commission (under pressure from the United States Court of Appeals for the District of Columbia Circuit) abandoned two remaining vestiges of the fairness doctrine – the personal attack and political editorial rules. 275/ During this time the Supreme Court also restricted the FCC’s ability to regulate certain types of commercial speech. 276/ Other specific First Amendment arguments could be made against attempts to regulate “violent” television programming. 277/

In short, it is possible to fashion arguments to combat overly intrusive federal content controls without simultaneously attacking the statutory framework that relies heavily on the editorial discretion of broadcast licensees. The principal claim would be that new regulations would disrupt the balance struck by the Communications Act and the First Amendment between public interest obligations and editorial discretion. As explained in more detail below, framing an argument against increased federal content regulation in this way should preserve the ability of public broadcasters to rely on federal preemption to oppose state content controls imposed by state governments.

  1. Access Demands, the Public Forum Doctrine and the Communications Act

The Supreme Court’s decision in Forbes should help resolve most claims about public broadcast stations being considered public fora. The Court noted 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.” 278/ However, it also 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.” 279/ 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. 280/

In short, the key to being able to have editorial discretion is to use editorial judgment. In reaching this conclusion the Court focused on public broadcasters’ statutory obligations, a fact that is important for several reasons. Couching the public forum analysis in terms of broadcasters’ public interest duties enables licensees to satisfy the constitutional standard for establishing a non-forum using essentially the same practices and procedures necessary to show compliance with the political broadcasting requirements of the Communications Act. Reliance on this traditional analysis should help stations avoid designating a sponsored debate as a public forum inadvertently. Focusing the inquiry on the licensee’s bona fide journalistic judgment also minimizes the possibility of making conflicting statutory and constitutional arguments to support the exercise of editorial freedom.

As noted above, a primary factor in determining that a candidate debate is a nonforum is the same thing that determines a licensee’s compliance with the political broadcasting requirements of the Communications Act – good faith news judgment. For more than twenty years the FCC has held, with judicial approval, that candidate debates are “news events” exempt from the equal opportunities requirement. In 1983, the Commission specifically extended the exemption to broadcaster-sponsored debates. 281/ The FCC reasoned that the identity of a debate’s sponsor does not affect the program’s news value and that, because “a broadcaster may be the ideal, and perhaps the only, entity interested in promoting a debate between candidates for a particular office, especially at the state or local level,” exempting broadcaster-sponsored debates “should serve to increase the number of such events, which would ultimately benefit the public.” 282/

The Commission will not interfere with a broadcaster’s decision to invite only some legally qualified candidates to participate in a candidate debate, so long as the decision is based on the broadcaster’s “‘good-faith news judgment.’” 283/ The Commission, moreover, “places considerable reliance on the exercise of a broadcaster’s journalistic discretion to determine [a program’s] ‘newsworthiness.’” 284/ “‘[A]bsent evidence of broadcaster intent to advance a particular candidacy, the judgment of the newsworthiness of an event is left to the reasonable news judgment of professionals.’” 285/ Applying these principles, the Commission repeatedly has sustained both public and private broadcasters’ decisions to limit debate participation to the major candidates in a campaign when candidates were selected based on the broadcasters’ good faith judgment as to their newsworthiness. 286/

Over two decades of Commission and judicial precedent interpreting the Communications Act confirm that the “common denominator” of broadcasters’ decisions to sponsor debates, to determine their format, and to limit participation to selected candidates is “bona fide news value.” 287/ The FCC similarly has interpreted the news exemption to allow public broadcasters to make blocks of time available to selected candidates for office. For example, the Commission approved a PBS proposal to telecast unmoderated statements by certain presidential candidates selected by such criteria as national polling data. The FCC concluded that such presentations would not trigger the equal opportunities requirement because there was no “basis to question the good faith news judgment of PBS with respect to its decision to broadcast the event.” 288/

So long as noncommercial licensees consciously exercise journalistic judgment when sponsoring candidate debates (and have a way of documenting their choices), there should be no difficulty in complying with FCC political broadcasting rules and no danger of being considered a designated forum, which would trigger a constitutional right of access. If a licensee is required to defend its choice, either in court or before the Commission, the same argument should prevail in either setting: Selection of debate participants is a matter of news judgment, which is protected by both the First Amendment and the Communications Act.

  1. 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 properly characterized as “censorship” or merely as “editing.” This dilemma was brought home in both Muir v. Alabama Educational Television Commission and Knights of the Ku Klux Klan v. Curators of the University of Missouri, where the respective courts of appeals held that the state licensees could cancel the program Death of a Princess and deny underwriting announcements to the KKK because the broadcasters were engaged in government speech.

The court decisions in these two cases were welcome because they enabled the licensees to defeat attempts from the outside to control their programming schedules. But what about attempts to control programming from the inside? This issue was squarely presented by the funding conditions imposed by the Idaho legislature that required the state Board of Education (the licensee) to ban programming that “promotes, supports or encourages violation of Idaho criminal statutes” and to monitor “programs expected to be of a controversial nature.” The legality of the Idaho programming restrictions was never litigated, but the state took the position that its actions were fully defensible as an exercise of government speech. Since the state was the licensee, the state said it could decide what would – or would not – be presented on Idaho public broadcasting.

The superficial reasonableness of Idaho’s position tends to obscure the fact that programming decisions that are based on accepted professional standards are quite different from content prohibitions imposed through the political process. The Supreme Court addressed a similar question in Board of Education v. Pico, where it invalidated a school district’s decision to remove books from the school library that the board believed “‘contain[ed] obscenities, blasphemies, brutality, and perversion beyond description.’” 289/ The removal decision was made against the advice of teachers and librarians in the school system, and the school board ignored its existing library policies. 290/ A divided Court held that the removal decision was invalid and that the board could not exert control over the library in “a narrowly partisan or political manner” or impose “a political orthodoxy to which petitioners and their constituents adhered.” 291/ Lower courts have reached similar decisions regarding censorship in public libraries. 292/

State-imposed content restrictions, like those adopted in Idaho, may provide an occasion to test the theory that the First Amendment protects state-sponsored speech enterprises. 293/ The history of programming restrictions in that state provides a particularly compelling example. In 1981 the Idaho legislature drastically cut state funding for public television in response to two locally-produced documentaries. The programs included a critical examination of the timber industry in northern Idaho and a critical look at the communities of Kellogg and Bunker Hill for downplaying the significance of lead poisoning in children of the Silver Valley. 294/ One year later, in response to adverse reactions to the funding cuts, the legislature restored the funds and created the Idaho Educational Public Broadcasting Service (“IEPBS”) as a separate agency under the State Board of Education. A new general manager was charged with the duty to “manage, coordinate, and supervise” IEPBS. 295/

Given this history, a strong argument might be made that the state created a speech enterprise that should be accorded First Amendment protections, like a university or library. IEPBS was created as a separate entity for the express purpose of exercising editorial judgment. However, since this theory of constitutional law is untested, a safer course would be to argue that state programming restrictions are preempted by the Communications Act.

Under the Supremacy Clause of the Constitution, enforcement of a state regulation may be preempted by federal law in three circumstances: (1) where Congress, in enacting a federal statute, expresses its clear intent to pre-empt a state law; 296/ (2) where Congress, by legislating comprehensively, has “occupied the field,” enacting a system of regulations so comprehensive as to leave no room for state action; 297/ and (3) by enacting a law with which the state regulation conflicts, making compliance with both state and federal law impossible. 298/ A conflict between the state and federal schemes occurs when it is impossible to comply with both the federal and state regulation, or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 299/

As explained above in Section I, federal broadcasting law is predicated on serving the public interest by maximizing the editorial freedom of broadcast licensees. The “thrust” of public interest requirements has been “to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern.” 300/ Accordingly, “television broadcasters enjoy the ‘widest journalistic freedom’ consistent with their public responsibilities.” 301/ In this regard, 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.” 302/

Among the broadcaster’s responsibilities “is the duty to schedule programming that serves the ‘public interest, convenience, and necessity.’” 303/ Indeed, the FCC has stressed that the 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.” 304/ The Supreme Court has emphasized that “the unifying theme of these various statutory provisions [of the Communications Act] is that they substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations’ ability to speak on matters of public concern.” 305/ In addition, federal policies underlying the promotion of public broadcasting include maximizing diversity by promoting “freedom, imagination and initiative on both local and national levels,” encouraging the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences, and insulating programming decisions from political control. 306/

Reviewing courts in various cases have found broad preemptive authority in the Communications Act. In Capital Cities Cable, Inc. v. Crisp, for example,  the Supreme Court held that an Oklahoma prohibition against broadcasting advertisements for alcoholic beverages was preempted by federal law and regulation. 307/  The Court in Crisp held that the state advertising prohibition conflicted with various FCC regulations. In particular, the Court found that enforcement of local law would deprive the public “of the wide variety of programming options that cable systems make possible” – a result it concluded was “wholly at odds with the regulatory goals contemplated by the FCC.” 308/ Consistent with this decision, the Supreme Court had held earlier that Section 315 of the Communications Act preempted local defamation law to the extent such tort claims might dampen broadcasters’ willingness to air political speeches. 309/

Lower courts similarly have applied the law of preemption and have found that some, but not all, state regulation of broadcasting to be superceded by federal law. As a general proposition, courts are more likely to find local law to be preempted if it has the effect of restricting broadcast programming. Accordingly, the Third Circuit in Allen B. Dumont Labs, Inc., v. Carroll held that the Communications Act barred a Pennsylvania law requiring all television programs be pre-approved by a state board of censors. 310/ It found that while Section 326 “declares it to be a national policy that nothing in the Act shall be understood to give the Federal Commission ‘power of censorship’ over radio communications and that no regulation or condition shall be promulgated or fixed by the Commission which shall interfere ‘with the right of free speech by means of radio communication,’ this does not mean that the States may exercise a censorship specifically denied to the Federal agency.” 311/

The Supreme Court of Maine followed Carroll in striking down a Maine statute that barred public television stations from carrying interviews with political candidates. 312/ Unlike Carroll, the court in State v. University of Maine did not conclude that Congress had preempted the entire field of television regulation. Rather, the court cited the Supreme Court’s decision in WDAY, and found that “the states are ousted generally in the area of censorship,” which it defined as “any examination of thought or expression in order to prevent publication of ‘objectionable material.’” 313/ It noted that “[t]he power to license in the ‘public interest’ remains federally located,” and concluded that “it would be impossible for [the public broadcasting licensee] to obey the rigid censoring requirements of the Maine statute and at the same time satisfy the ‘public interest’ standard requisite for FCC licensing.” 314/

By contrast, the Supreme Court of New Jersey, by a divided vote, declined to hold that a state regulation of election coverage was preempted. 315/ The court upheld a New Jersey statute that required that state-owned public television stations provide balanced and fair coverage of all state elections. The court reasoned that the statute was essentially an exercise of the state licensee’s discretion, ignoring the fact that the license holder was the state public television authority and not the legislature. 316/ The court ultimately concluded that there was no conflict between the state regulatory scheme and the Communications Act, and that the effect of the New Jersey scheme was to promote more election coverage, not less. 317/ Other courts, however, including the United States Court of Appeals for the Fifth Circuit (in a decision summarily upheld by the U.S. Supreme Court), have been more willing to find conflicts, and to preempt state regulation of political broadcasting. 318/

These cases suggest that programming restrictions imposed on public broadcasting by state governments may well be preempted by federal law. Where a state adopts content limits via the political process, such action should not be viewed as the mere exercise of editorial discretion by a state licensee.  Indeed, in Muir, the leading case supporting the “sole programming discretion” of state licensees for purposes of public forum analysis, the court suggested that programming restrictions imposed by a state may not be consistent with a licensee’s obligations under the Communications Act. 319/ Where a state legislature takes action to reduce the level of editorial freedom previously exercised by the licensee, such action is difficult to reconcile with the purposes of the Communications Act and the Public Broadcasting Act. As the Supreme Court of Maine put it, “[a] state law which effectively prevents the licensee from discharging this ‘public interest’ obligation and thereby satisfying the license requirement cannot stand.” 320/

Whether an argument against state programming restrictions is based on the constitutional rights of state-sponsored speech enterprises or on principles of federal preemption, the focus of the claim would be that public broadcasters require a significant measure of editorial independence. The constitutional argument would emphasize the fact that the state created the enterprise for the purpose of transmitting independent views, while the preemption claim would stress the idea that state content controls necessarily interfere with the editorial autonomy required of federal licensees. Either way, the thrust of the argument is that state-licensed public broadcast licensees should be able to assert an enforceable claim in support of their editorial discretion.

  1. Limits on Use of Funding to Restrict Free Expression

Funding is one of the perennial problems facing noncommercial broadcasters, and the problem is at least two-fold: (1) Obtaining adequate funding, and (2) avoiding the political influence on programming that can accompany the power of the purse. The CPB budget battles during the Nixon Administration illustrate both problems, and the Public Broadcasting Act was written to help minimize the danger of political control at the federal level. Such restrictions on programming may be imposed directly, by denying funds to air particular types of shows, or indirectly, by slashing funding in response to airing disfavored programming. Where the funding decision is made for the sole purpose of influencing editorial decisions, constitutional limits may come into play.

It is well-established that government – state or federal – is under no obligation to provide various benefits, including funding for public television. At the same time, government cannot deny benefits by requiring a choice between exercising First Amendment rights or suffering the loss of the benefit. 321/ As the Supreme Court noted in Velazquez, “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” 322/ Using public broadcasting as an example, the Court held that the government could not create a “regime which prohibits speech necessary to the proper functioning of those systems.” 323/ That is, in cases where the government “uses or attempts to regulate a particular medium,” the Court bases its analysis on the medium’s “accepted usage in determining whether a particular restriction on speech is necessary for the program’s purposes and limitations.” 324/ Where, as in the case of public broadcasting, “the dynamics of the broadcasting system [give] station programmers the right to use editorial judgment,” funding conditions that restrict programming discretion should be unconstitutional. 325/

Other cases in which courts struck down funding limits to restrict speech may prove to be helpful to this analysis. For example, in Brooklyn Institute of Arts & Sciences v. City of New York326/ the district court held that the city could not withhold appropriated funding from a museum displaying an exhibit offensive to the Mayor and many others. The core holding was that “denial of a benefit, subsidy or contract [that] is motivated by a desire to suppress speech” violated the First Amendment. 327/ Similarly, in Cuban Museum of Arts & Culture, Inc. v. City of Miami, the district court held that the city could not refuse to renew a lease – even in the absence of a contractual right for the museum to a renewal – based on disagreements about what artists to include in the exhibit. 328/ And in American Council of the Blind v. Boorstin329/ the district court ordered the Librarian of Congress to resume translating Playboy magazine into Braille. The Librarian had halted such translation when Congress had withheld the exact amount needed for the translation from the annual appropriations bill. Again, the only reason given for the censorship by Congress was disagreement with the content of the speech. 330/ Thus, the First Amendment may limit legislative actions even when they restrict only the speech of government instrumentalities.

This area of the law is undergoing significant development. Although the Supreme Court held in 1991 that the federal government could use funding restrictions to limit abortion-related speech in a government medical program, 331/ and in 1998 that grants issued by the National Endowment for the Arts could be based on certain limited conditions, 332/ it has since suggested that the government cannot use funding decisions to subvert the essential purpose of a speech-related program. 333/

Recent legal developments and current litigation already are leading to further developments in this area. Requirements that federally funded and subsidized libraries use Internet content filters were added as an amendment to the 2001 Labor-Health and Human Services Appropriations Bill, H.R. 4577. Labeled the “Children’s Internet Protection Act” (“CIPA”), the amendments condition e-rate subsidies, funding via the Elementary and Secondary Education Act and funding through the Museum and Library Services Act on the use of content filters on Internet access terminals. The passage of CIPA resulted in judicial challenges led by the American Library Association and the ACLU. 334/ The Justice Department moved to dismiss the suits, arguing that the government could impose conditions on the programs it chooses to fund, but the district court rejected the motion without issuing an opinion. Cases such as this suggest that public broadcasters would have a strong constitutional argument for preserving their editorial integrity in the face of content-based funding restrictions.

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