In addition to state and federal laws, adherence to professional standards, such as the Principles of Editorial Integrity, may affect significantly the extent to which courts are willing to recognize legally enforceable rights to editorial discretion for public broadcasters. In Forbes, the Supreme Court was greatly influenced by the fact that the licensee’s choice of debate participants was governed by professional journalistic standards. It noted that specifically that AETC had adopted the Principles of Editorial Integrity which counsel adherence to “generally accepted broadcast industry standards, so that the programming service is free from pressure from political or financial supporters.” 343/ Professor Schauer has even suggested that “the journalistic character of Arkansas Educational Television may have been more determinative than is indicated by the structure of the majority opinion” in Forbes. 344/
The journalistic nature of the enterprise, as supported by adherence to professional standards, also is instrumental in avoiding the conclusion that the licensee has created a public forum of some type. In short, the exercise of journalistic judgment helps preserve editorial discretion in law, and well-articulated professional standards can provide the necessary documentation of the principles underlying such judgment. The Supreme Court in Forbes agreed that when a public broadcaster “exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity.” 345/ Such journalistic behavior is diametrically opposed to the “open platform” notion of the public forum. Consequently, the Court came down on the side of licensees’ editorial discretion because a right of access “could obstruct the legitimate purposes of television broadcasters.” 346/
To conclude that professional standards are important to the preservation of the right of editorial discretion is not the same thing as determining what those standards should be. The original Principles of Editorial Integrity in Public Broadcasting were adopted in the mid-1980s as a way to help clarify the rights and obligations of public broadcasters, at a time when the legal environment was more uncertain. With the passage of time and the development of legal doctrine, the time may be right to review the Principles of Editorial Integrity to determine whether they should be revised to reflect new conditions and understandings. It is beyond the scope of this Report to suggest potential changes, but the legal analysis contained herein should provide a background to inform any such review.
This report on freedom of expression in public broadcasting represents only the starting point, and not the end, of any focused effort to promote full constitutional protections for noncommercial licensees. This has been an effort to spot the relevant issues and to update the discussion of case law in the nearly two decades since the 1983 First Amendment Analysis was issued and the Wingspread Conference was held. The purpose of this analysis is to initiate a dialogue that will lead to a reexamination of the status of public broadcasting as a journalistic enterprise in the 21st century, and perhaps to the development of new Principles of Editorial Integrity. Accordingly, to move this project to its next phase, I recommend the following actions:
There should be a comprehensive analysis of existing state statutes and corporate by-laws that govern the operations of noncommercial broadcast licensees. Such an analysis should illuminate the extent to which public broadcasting organizations may be characterized as state-sponsored journalistic enterprises.
Public broadcasters should convene a second Wingspread Conference to examine issues of editorial integrity in public broadcasting in the contemporary media environment. The purpose of Wingspread II would be to assess the current state of journalism in noncommercial broadcasting and to work toward developing professional standards and strategies to maximize editorial freedom.
Based on the Wingspread II findings, and in light of this analysis and a review of state laws, the public broadcasting community should consider developing new Principles of Editorial Integrity for the 21st century.
Any recommendations about protecting freedom of expression for public broadcasting must be based on the real world experiences of noncommercial licensees in this changing media environment. They also must be analyzed against the backdrop of existing state laws and developing case law. It is the hope that this Report, along with an examination of state charters and with the input of noncommercial broadcasters, will provide the basic building blocks for new Principles of Editorial Integrity.