III. Public Broadcasting, Free Expression, and Principles of Editorial Integrity
The Wingspread Conference on Editorial Integrity in Public Broadcasting was convened in 1984 to enable public broadcasting executives and representatives from state licensing boards and commissions to explore the First Amendment position of public broadcasting licensees. The resulting report opened on this uncertain note: “The history of public broadcasting licensees, especially those which are also state government entities, shows that they have unclear First Amendment rights.” 335/ To help provide greater clarity and to provide a sense of mission, the conference proposed Principles of Editorial Integrity to be adopted by the governing boards of public broadcast organizations. 336/ Editorial integrity in public broadcasting was defined as “the responsible application by professional practitioners of a free and independent decision-making process which is ultimately accountable to the needs and interests of all citizens.” 337/ The following five principles emerged from this process:
We are Trustees of a Public Service
Our Service is Programming
Credibility is the Currency of our Programming
Many of our Responsibilities Are Grounded in Constitutional or Statutory Law
We have a Fiduciary Responsibility for Public Funds
Now, almost two decades after the Wingspread Conference explored these issues, the legal questions have not yet been resolved, although there have been significant case law developments. The critical question remains: What is the constitutional status of state-licensed public broadcast stations? Although that question cannot yet be answered definitively, it is possible to develop strategies to maximize the editorial independence of public broadcast licensees based on First Amendment and statutory principles.
As the legal analysis in Section II suggests, a critical factor in preserving the editorial independence of public broadcast licensees is to ensure that the entities are chartered to provide an independent editorial voice and that they behave as professional journalistic organizations. This requires attention to the obligations associated with the FCC license, the purposes of the authorizing legislation at the state level, the by-laws and professional guidelines such as the Principles of Editorial Integrity. Where this is done, strong statutory and constitutional arguments can be made to support public broadcasters’ editorial discretion.
More importantly, such arguments can be fashioned with a degree of consistency so as to avoid conflicting rationales in response to different threats to free expression. By focusing on professional standards that advance established goals of journalistic excellence, public broadcasters can help create a self-fulfilling prophesy: They are likely to be accorded a high degree of editorial independence by law where they exercise a high degree of editorial independence in fact.
A. Federal Statutory Policies
Federal broadcasting law is predicated on serving the public interest by maximizing the editorial freedom of broadcast licensees. 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. 338/
Although the FCC imposes somewhat greater restrictions on the content of public broadcast stations than on their commercial counterparts, the programming limits (no commercials, no political endorsements, requirements for educational and cultural fare) are consistent with – and limited by – the purposes for which public broadcasting was created. If viewed by analogy in terms of the public forum doctrine, it would be fair to say that the government “designated” a broadcasting service to provide noncommercial cultural programming, and can condition the licenses accordingly. But it cannot impose greater restrictions. It cannot ban editorials by public stations, for example, because the Communications Act envisions public broadcasters as journalistic enterprises that exercise editorial discretion. 339/ Indeed, public broadcasters, like all broadcast licensees, must exercise editorial discretion as an essential condition of being licensed. For that reason, under the doctrine of federal preemption, state government restrictions that impair a licensee’s ability to fulfill its statutory duties should be invalid.
B. State Governance of Public Broadcasting
Forty-eight states have passed laws regarding public broadcasting, either to direct the activities of state agencies engaged in public broadcasting or to authorize contributions to public television stations. 340/ These laws are fairly similar throughout the country and serve to define the mission for state broadcasting agencies. They also shape the bylaws and governance of state broadcasting organizations. Accordingly, the state laws are an important factor in any argument to support public broadcasters’ constitutional status. They help determine whether a state-owned public licensee should be considered a government speaker or as a state-sponsored speech enterprise with independent rights.
The Kentucky statute on educational television provides a useful example in this regard. It provides for the creation of an “independent agency and instrumentality of the commonwealth” to “prescribe and enforce regulations governing the use of educational television.” The agency was given an independent corporate identity. 341/ Such an agency may fairly be characterized as a separate enterprise and not as a “state speaker” even though it is a public agency. In Forbes, for example, the Supreme Court noted that the Arkansas Educational Television Commission operated as an independent agency that was insulated from political pressure whose professional staff exercised “broad editorial discretion in planning the network’s programming.” 342/ Thus, where an agency is created for the purpose of providing a journalistic service rather than to be a government press office, reviewing courts may be willing to accord that agency with enforceable First Amendment rights.
Whether or not courts are prepared to expand constitutional doctrine to encompass certain state agencies, it is important to recognize that all state licensees must adhere to the terms of their federal licenses. As noted above, the Communications Act requires its licensees to exercise unfettered editorial judgment. Accordingly, the First Amendment values embedded in the Communications Act may be enforced in situations where state law burdens editorial freedom. In most instances, however, state law will reinforce the notion that the state is an independent speaker.