Public Broadcasting a report and Analysis

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C. Principles of Editorial Integrity

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 Forbes344/

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.

D. Recommendations

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.

1/ 47 U.S.C. § 151.

2/ 47 U.S.C. §§ 307, 309. See also 47 U.S.C. § 301 (“It is the purpose of this chapter . . . to maintain the control of the United States over all the channels of radio transmission.”).

3/ 47 U.S.C. § 303.

4/ 47 U.S.C. §§ 312, 315.

5/ 47 U.S.C. § 303a.

6/ 47 U.S.C. § 713.

7/ 18 U.S.C. § 1464.

8/ 47 U.S.C. §§ 301, 303.

9/ 47 U.S.C. §§ 307, 309.

10/ The Communications Act of 1934, Pub. L. 416, § 307(c), 48 Stat. 1064 (1934).

11/ Dwight L. Teeter, Jr. and Donald LeDuc, Mass Communications and Government 415 n.94 (8th ed. 1995).

12/ Sixth Report and Order on Television Allocation, 41 F.C.C. 148, 158-167, 227-563, (1952).

13/ The Act created a capital grant program for non-profit broadcasters to expand and improve their facilities. Educational Television Facilities Act, Pub. L. 87-447, 76 Stat. 64 (1962).

14/ See, e.g., 47 C.F.R. §§ 73.501, 73.606 (2000).

15/ Public Television: A Program for Action (Carnegie Commission Report 1967); See generally Burke, The Public Broadcasting Act of 1967: Part I and Part II 6 Edu. Broadcasting Rev. 105-119 and 178-192 (1972).

16/ Public Broadcasting Act of 1967 Pub. L. No. 90-129, 81 Stat. 365 (1967). The term “public” was chosen over “educational” to allow the corporation more flexibility in developing programming, Teeter and LeDuc, supra note 11 at 416 n.96 (8th ed. 1995).

17/ 47 U.S.C. § 396(a)(6).

18/ 47 U.S.C. § 396(a)(3).

19/ 47 U.S.C. § 396(a)(5).

20/ 47 U.S.C. § 398(c).

21/ 47 U.S.C. § 396(g).

22/ 47 U.S.C. § 396(k)(8)(A). Stations owned and operated by state governments, political or special subdivisions of a state, or public agencies are not required to establish separate advisory boards.

23/ Id. Meetings of the board must be open to the public, and CPB recipient stations must allow public inspection of annual financial reports, audit statements and other contracts, grants and agreements (which are also filed with CPB). 

24/ 47 U.S.C. § 396(k)(8)(C).

25/ 47 U.S.C. § 396(g)(1)(A). The “objectivity and balance” requirement was bolstered by an amendment to the Public Telecommunication Act of 1992. The amendment required CPB to review its programming activities, establish procedures for public input, and to submit annual reports to the President and Congress regarding its efforts to ensure “objectivity and balance” in CPB-funded programming. Section 19, Public Telecommunication Act of 1992, Pub. L. 102-356.

26/ 47 U.S.C. § 396(g)(3). CPB is the largest single source of funding for public radio and television programming.

27/ Of the 171 licensees, 89 are community organizations, 54 are colleges/universities, 20 are state authorities and 7 are local educational or municipal authorities.

28/ See FAQ About Public Broadcasting, (page visited on Nov. 6, 2001). See also Public Broadcasting PolicyBase, (page visited on Nov. 5, 2001).

29/ See FAQ About Public Broadcasting, (page visited on Nov. 6, 2001).

30/ Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

31/ Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).

32/ FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

33/ United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000); Community Television of Utah, Inc. v. Wilkinson, 611 F. Supp. 1099, 1116 (D. Utah 1985) (cable indecency law targeting premium movie services invalidated), aff’d sub nom. Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), aff’d mem., 480 U.S. 926 (1987); Cruz v. Ferre, 755 F.2d 1415, 1419 n.4 (11th Cir. 1985) (same).

34/ Reno v. ACLU, 521 U.S. 844 (1997).

35/ 47 U.S.C. §§ 303, 326.

36/ FCC v. League of Women Voters of Cal., 468 U.S. 364, 378 (1984).

37/ CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 120 (1973).

38/ Southwest Texas Public Broadcasting Council, 85 F.C.C.2d at 713, 720 (1981).

39/ In creating the Corporation for Public Broadcasting, for example, Congress specifically excluded any federal agency or officer from interfering with the “content or distribution of public telecommunications programs and services.” 47 U.S.C. § 398(c). See Community-Service Broad. of Mid-America, Inc. v. FCC, 593 F.2d 1102, 1108 (D.C. Cir. 1978) (en banc) (The Public Broadcasting Act was the “product of a congressional determination that strong safeguards were necessary to ensure that federal funding of programming did not carry with it any political influence on the contents of that programming.”) 

40/ 47 U.S.C. § 396; 47 C.F.R. § 73.621(a).

41/ Id. § 73.621(c).

42/ See In re Applications of WQED Pittsburgh (Assignor) and Cornerstone Television, Inc. (Assignee) for Consent to the Assignment of License of Station WPCB-TV, Channel 40, 15 FCC Rcd. 202 (1999) (“Applications of WQED”); Moody Bible Institute of Chicago, 66 F.C.C.2d 162 (1977).

43/ 47 C.F.R. § 73.621(a) (emphasis added).

44/ See Notice of Inquiry, Docket No. 78-164, 43 Fed. Reg. 30847, 30844 (1978).

45/ Id. at 30845.

46/ Id.

47/ Applications of WQED, 15 FCC Rcd. 202, 224 (1999).

48/ Id.

49/ Id. at 224-225.

50/ See In re Applications of WQED Pittsburgh (Assignor) and Cornerstone Television, Inc. (Assignee) for Consent to the Assignment of License of Station WPCB-TV, Channel 40, 15 FCC Rcd. 2534 (2000).

51/ 47 U.S.C. § 399B. See 47 C.F.R. § 73.621(e). The Act defines “advertising” as “any message or other programming material which is broadcast or otherwise transmitted in exchange for remuneration, and which is intended (1) to promote any service, facility, or product offered by any person engaged in such offering for profit; (2) to express the views of any person with respect to any matter of public importance or interest; or (3) to support or oppose any candidate for political office.”  47 U.S.C. § 399B(a).

52/ Ancillary or Supplementary Use of Digital Television Capacity by Noncommercial Licensees, 16 FCC Rcd. 19,042 (2001).

53/ 47 U.S.C. § 399A.

54/ See Commission Policy Concerning Noncommercial Nature of Educational Broadcast Stations, Second Report and Order, 86 F.C.C.2d 141 (1981). The prior rule stated “no announcements promoting the sale of product or service shall be broadcast in connection with any program.”

55/ Commission Policy Concerning the Noncommercial Nature of Educational Broadcasting Stations, 97 F.C.C.2d 255 (1984).

56/ Noncommercial Nature of Educational Broadcasting, 7 FCC Rcd. 827 (1986).

57/ Section 312(a)(7) was amended to provide for the revocation of a station license or construction permit “for willful or repeated failure to allow reasonable access to or permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a noncommercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy.” 47 U.S.C. § 312(a)(7) (emphasis added), as amended by the Consolidated Appropriations Act of 2001, Pub. L. No. 106-554, Section 1(a)(4) (December 21, 2000) (referencing Section 148 of HR 5666 as introduced on December 15, 2000 and set forth in Conference Report 106-1033, published in Congressional Record Vol. 146, No. 155, H12280).

58/ 47 U.S.C. §§ 399, 399B.

59/ See infra pp. 52-57.

60/ See FCC v. League of Women Voters of California, 468 U.S. 364, 371 (1984).

61/ 438 U.S. 726, 731-32 (1978).

62/ Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996) (“ACT III”). (approving uniform safe harbor requirements specified in 1992 Cable Act); Action for Children’s Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995), cert. denied, 516 U.S. 1072 (1996) (“ACT IV”) (approving FCC forfeiture procedures); Action for Children's Television v. FCC, 932 F.2d 1504, 1509 (D.C. Cir. 1991), cert. denied, 503 U.S. 914 (1996) (“ACT II”) (striking down 24-hour indecency ban); Action for Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) (“ACT I”) (striking down FCC safe harbor ruling).

63/ Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 949 (1992); see 47 U.S.C.A. § 303 note (1993).

64/ ACT III, 58 F.3d at 668-69.

65/ In the Matter of The KBOO Foundation, 16 FCC Rcd. 10,731 (Enforcement Bureau, 2001). This FCC decision resulted in a First Amendment lawsuit filed by the recording artist. Jones v. FCC, No. 02 Civ. 0693 (S.D.N.Y., filed Jan. 30, 2002).

66/ In the Matter of Citadel Broadcasting Co., DA 01-1334 (Enforcement Bureau, June 1, 2001). The Bureau subsequently rescinded this Notice of Apparent Liability. In the Matter of Citadel Broadcasting Co., 17 FCC Rcd. 483 (Enforcement Bureau 2002).

67/ Letter to Peter Branton, 6 FCC Rcd. 610, 611 (1991) petition for rev. dismissed, 993 F.2d 906 (D.C. Cir. 1993). Former Commissioner Duggan described the word in question as “the one expletive that has traditionally been considered the most objectionable, the most forbidden, and the most patently offensive to civilized and cultivated people: the famous F-word.” Id.

68/ Id.

69/ Current Magazine maintains an online archive of these events for the years 1969-1974 with references to White House correspondence and memoranda. See Nixon Administration Public Broadcasting Papers, Summary of 1969,; Summary of 1970,; Summary of 1971,; Summary of 1972,; Summary of 1973,; Summary of 1974, See generally, The Future of Public Broadcasting, 3 Comint 1-32 (Fall 1992); Public Broadcasting, The CQ Researcher, at 812-814, 820-824 (Sept. 18, 1992).

70/ Summary of 1972,

71/ The CQ Researcher, supra at 822. Buchanan, by all accounts, was characteristically blunt about the Administration’s intent. He reportedly told a public broadcasting executive at a cocktail party, “if you don’t do the kind of programming we want, you won’t get a fucking dime.” See Lucas A. Powe, Jr., American Broadcasting and the First Amendment 129 (1987).

72/ Summary of 1971,

73/ Id. The Administration had also expressed concern about the way domestic issues were presented on public affairs shows like The Advocates. Summary of 1970,

74/ Summary of 1971,

75/ Id.

76/ Id.

77/ Erwin G. Krasnow, Lawrence D. Longley and Herbert A. Terry, The Politics of Broadcast Regulation 71 (3d ed. 1982). Local public stations also were concerned that insufficient funds were being allocated for local initiative and control, and they advocated allocations for direct station grants. See Editorial Integrity Project, Public Broadcasting Governance and Management Handbook 4 (1986) (“Editorial Integrity Handbook”).

78/ Summary of 1972, The bill provided for 30 percent of CPB’s appropriation to be earmarked for local public broadcast stations.

79/ Summary of 1973, After President Nixon’s veto, CPB Chairman Tom Curtis resigned, charging that the Administration had sought to influence the Corporation to preclude funding of news and public affairs programs. Id. See also Editorial Integrity Handbook at 4.

80/ By this time, the Nixon Administration had appointed 11 of the 15 CPB board members, and the board modified its approach to public affairs programming. It reduced its commitment to public affairs and took over most of the programming functions previously performed by PBS. In particular, CPB advised PBS that it intended to decide which programs would or would not be scheduled for broadcast on the national public TV interconnection system. See Editorial Integrity Handbook at 4-5.

81/ The agreement provided that PBS would continue to operate the interconnection for its member stations and CPB would provide financial support for technical operations. The agreement also resulted in a substantial increase in Community Service Grants to local stations. Finally, it altered the program funding process in a way that allowed CPB to make final decisions about funding but required specific consultation with PBS. Id. at 5.

82/ Id.

83/ Among other things, plaintiffs alleged that CPB and PBS prescreened programs, required changes prior to distribution, and issued warnings about programs designated as “controversial.”

84/ Network Project v. CPB, 398 F. Supp. 1332 (D.D.C. 1975).

85/ Network Project v. Corporation for Public Broadcasting, 561 F.2d 963, 976 (D.C. Cir. 1977), cert. denied, 434 U.S. 1068 (1978).

86/ Id. at 975. The D.C. Circuit also held that the District Court erred in dismissing the First Amendment claims on jurisdictional grounds. Id. at 77-79. However, there were no subsequent proceedings on the constitutional issues.

87/ Communications Daily, Dec. 21, 2001 at 10.

88/ Alabama Educational Television Commission, 50 F.C.C.2d 461 (1975).

89/ Alabama Educational Television Commission, 33 F.C.C.2d 495, 496 (1972).

90/ Id. at 513.

91/ Alabama Educational Television Commission, 50 F.C.C.2d 484, 496(ALJ Naumowicz 1973).

92/ Alabama Educational Television Commission, 50 F.C.C.2d at 495.

93/ Id. at 498.

94/ Id. at 477-478.

95/ Mississippi Authority for Educational Television, 71 F.C.C.2d 1296 (1979). The complaints also pointed out that the state legislature had adopted a statute forbidding the network from airing any programming produced by the Sex Education and Information Council of the United States (“SEICUS”). The provision, which is still on the books in Mississippi, states that: “No SEICUS (or any of its subsidiaries or connections known by other name whatsoever) programming whatsoever shall be carried by any educational television station in the State of Mississippi.” Miss. Code § 37-63-15 (2001).

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