Public Broadcasting a report and Analysis

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Id. at 391. Nevertheless, control of the enterprise by government appointees was not crucial. Id. at 403. On remand, the United States Court of Appeals for the Second Circuit held that the particular billboard at issue was a non-forum. Lebron v. National R.R. Passenger Corp., 69 F.3d 650, amended, 89 F.3d 39 (2d Cir. 1995), cert. denied, 517 U.S. 1188 (1996).

214/ Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-270 (1988).

215/ Cornelius, 473 U.S. at 803.

216/ Perry, 460 U.S. at 49 n.9.

217/ Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 742, 749-50 (1996) (plurality opinion).

218/ Hazelwood, 484 U.S. at 270 (quoting Cornelius, 473 U.S. at 802).

219/ Cornelius, 473 U.S. at 802. Accord Perry, 460 U.S. at 46-47.

220/ Id. at 47. Accord Cornelius, 473 U.S. at 805.

221/ Hazelwood, 484 U.S. at 267 (quoting Perry, 460 U.S. at 47).

222/ Cornelius, 473 U.S. at 802-806.

223/ International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).

224/ See, e.g., Lehman, 418 U.S. at 303-304; Perry, 460 U.S. at 47. See also Lebron, 69 F.3d at 657.

225/ 523 U.S. at 672-673.

226/ Id. at 675.

227/ Id. at 680.

228/ See, e.g., Bezanson & Buss, supra note 183 at 1383 (“Does government speak when it acts as a journalist, a broadcaster, or as an owner or controller of the channels of distribution of speech? . . . The Supreme Court’s opinions hint at the answers to some of these questions, self-consciously evade others, and simply ignore most.”).

229/ Schauer, supra note 199 at 86.

230/ Id. at 89 (“the opinion is about state journalism as journalism, as opposed to state journalism as an enterprise of the state”) (emphasis in original); id. at 90 (“the journalistic character of Arkansas Educational Television may have been more determinative than is indicated by the structure of the majority opinion”); id. at 91 (“it is the institutional character of public broadcasting as broadcasting, heightened here by the involvement of broadcasting professionals in the very decision under attack, that appears to have determined the outcome of the case”); id. at 115 (“the involvement of the institutions of journalism appears to have been the saving factor in Forbes”).

231/ See Bezanson, supra note 183 at 964.

232/ Id. See generally Bezanson & Buss, supra note 183.

233/ 531 U.S. 533 (2000).

234/ Id. at 543.

235/ Id. at 544.

236/ Id.

237/ Id. at 543.

238/ Id. at 543-544. For example, just as the government is not required to designate a public forum in the first place and may “define the limits and purposes” of the forum, id, the Court noted that Congress “was not required to fund an LSC attorney to represent indigent clients; and when it did so, it was not required to fund the whole range of legal representations or relationships.” Id. at 548. But it cannot “define the scope of the litigation it funds to exclude certain vital theories and ideas” without running afoul of the First Amendment. Id. at 1052.

239/ Id. at 541. The Court used the term “government speech” to include “instances in which the government is itself the speaker” and instances in which the government “used private speakers to transmit information pertaining to its own program.” Id. (citations omitted).

240/ Id. at 542.

241/ Schauer supra note 199 at 116.

242/ Velazquez, 531 U.S. at 544-549

243/ Schauer supra note 199 at 116.

244/ Rosenberger, 515 U.S. at 835-836; Healy v. James, 408 U.S. 169, 180 (1972) (“vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”). See also Kincaid, 236 F.3d at 352 (the university environment “merits full, or indeed heightened, First Amendment protection”).

245/ 500 U.S. at 200.

246/ See, e.g., Barnard v. Chamberlain, 897 F.2d 1059 (10th Cir. 1990) (state bar newsletter); Estiverne v. Louisiana State Bar Ass’n., 863 F.2d 371 (same); Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir. 1987) (refusal to publish advertisement in university newspaper is not state action); Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967) (law review at state university may exercise editorial discretion), cert. denied, 390 U.S. 930 (1968); Leeds v. Meltz, 898 F. Supp. 146 (E.D.N.Y. 1995), aff’d, 85 F.3d 51 (2d Cir. 1996) (refusal to publish advertisement in school newspaper is not state action); Allston v. Lewis, 480 F. Supp. 328 (D.S.C. 1979), aff’d, 688 F.2d 829 (4th Cir. 1982) (bar association newspaper is not a public forum).

247/ See, e.g., Estiverne, 863 F.2d at 381 (“[T]he Louisiana State Bar Journal, as the trade publication of the Louisiana Bar, . . . serves a narrow, instrumental role. It was not established as an open forum for the expressive activities of the public, or of all members of the Bar. Rather, the invitation is to submit articles and advertisements for consideration by the editorial board, within the framework of editorial discretion necessary to fulfill the magazine’s purposes.”) (emphasis in original).

248/ See, e.g., 70 Okla. Stat. § 23-102 (“the influence, direction or attempt to influence or direct the program content or programs shown on public television by an elected official or his representative for personal gain or political benefit, direct or indirect, shall be unlawful”); N. Carolina Gen. Stat. § 116-37.1 (Board of Governors is authorized to establish the North Carolina Center for Public Television to provide “production of noncommercial educational television programming and program materials; to provide distribution of noncommercial television programming through the broadcast facilities licensed to the University of North Carolina; and otherwise to enhance the uses of television for public purposes”); Miss. Stat. § 37-63-1 (purpose of Mississippi educational television and radio system is to “provide educational and instructional, professional growth, and public service programs for the students and citizens of Mississippi”); Fla. Stat. § 229.805 (It is the public policy of the state “to provide through educational television and radio the powers of teaching, raising living and educational standards of the citizens and residents of the state, and protecting and promoting public interest in educational television and radio in accordance with existing state and federal laws.”). See Editorial Integrity Handbook at 13-14, 40-41.

249/ See Bezanson & Buss, supra note 183 at 1497 (“The professional discipline involved in selecting participants in a televised debate for elected office differentiates the government speech involved from the same process of selection by a government actor closer to the political level of government.”).

250/ Id. at 543. See also Estiverne, 863 F.2d at 380 n.12 (comparing bar journal to the public broadcast stations in Muir and concluding that the purpose of the publication “could not be accomplished without the exercise of editorial discretion”).

251/ Velazquez, 531 U.S. at 543-544.

252/ Forbes, 523 U.S. at 676, 680.

253/ See Schauer supra note 199 at 107-108 (“the Court’s refusal to make institution-specific decisions is supported not only by most of existing First Amendment doctrine, but also, and more importantly, by a battery of extraordinarily well-entrenched views about the nature and function of law itself, views that are especially concentrated in the First Amendment context”); Bezanson & Buss, supra note 183 at 1509 (The Supreme Court has been reluctant “to forge a full-bodied new idea of government as a First Amendment right-holder” in part because of “the theoretical problems with such a right, its unknowable implications, and the difficulties confronted in defining and restraining a government speech right.”).

254/ 47 U.S.C. § 396(a).

255/ 47 U.S.C. § 399.

256/ 47 U.S.C. § 399B. This restriction does not apply to subscription services on noncommercial DTV channels. Ancillary or Supplementary Use of Digital Television Capacity by Noncommercial Licensees, 16 FCC Rcd. 19,042 (2001).

257/ See League of Women Voters, 468 U.S. at 371.

258/ This is not intended to suggest that public broadcasters have any interest in challenging such requirements. It is only to illustrate the fact that some limits on the editorial prerogatives of public broadcasters are more troublesome constitutionally than others.

259/ League of Women Voters, 468 U.S. at 375-381, 392-399; Community-Service Broadcasting of Mid-America, 593 F.2d at 1122.

260/ S. 341, 107th Cong., 1st Sess. (Feb. 15, 2001). The bill is a rewrite of S. 876, which passed the Senate Commerce Committee by a 16-2 vote in 2000.

261/ Democratic Nat’l Comm., 412 U.S. at 117. See also Banzhaf v. FCC, 405 F.2d 1082, 1095 (D.C. Cir. 1968), cert. denied. sub. nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969).

262/ Democratic Nat’l Comm., 412 U.S. at 120.

263/ Id. at 124.

264/ Banzhaf, 405 F.2d at 1096. See also Pub. Interest Research Group v. FCC, 522 F.2d 1060, 1067 (1st Cir. 1975), cert. denied, 424 U.S. 965 (1976) (“we have doubts as to the wisdom of mandating . . . government intervention in the programming and advertising decisions of private broadcasters”); Anti-Defamation League of B’nai B’rith v. FCC, 403 F.2d 169, 172 (D.C. Cir. 1967) (“the First Amendment demands that [the FCC] proceed cautiously [in reviewing programming content] and Congress . . . limited the Commission’s powers in this area”).

265/ Forbes, 523 U.S. at 673, quoting Democratic Nat’l. Comm., 412 U.S. at 110. See FCC v. Midwest Video Corp., 440 U.S. 689, 705 (1979) (recognizing the “policy of the Act to preserve editorial control of programming in the licensee”); FCC v. WNCN Listeners Guild, 450 U.S. 582, 596-597 (1981) (FCC relies on the editorial discretion of licensees to serve the public interest).

266/ Section 310(d) of the Communications Act prohibits the transfer of control of a broadcast station license, or any rights thereunder, without prior FCC consent. 47 U.S.C. § 310(d). In particular, a licensee is obligated to exercise its own authority over whether to accept or reject programming to be aired over its station. E.g., WGPR, Inc., 10 FCC Rcd. 8140, 8142 (1995). See Southwest Texas Public Broadcasting Council, 85 F.C.C.2d 713, 715 (1981); Alabama Educational Television Commission, 33 F.C.C.2d 495, 508 (1972).

267/ Forbes, 523 U.S. at 673.

268/ Id., quoting 47 U.S.C.§ 309(a).

269/ CBS, Inc. v. FCC, 453 U.S. 367 (1981) (upholding reasonable access requirements for federal candidates); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding fairness doctrine). But see CBS, Inc. v. Democratic Nat’l. Comm., 412 U.S. 94 (holding that broadcasters cannot be required to accept public issue advertising).

270/ League of Women Voters of Cal., 468 U.S. at 397 (invalidating ban on editorializing by noncommercial educational licensees). See id. at 398 (“Rather than requiring noncommercial broadcasters who express editorial opinions on controversial subjects to permit more speech on such subjects to ensure that the public’s First Amendment interest in receiving a balanced account of the issue is met, § 399 simply silences all editorial speech by such broadcasters.”).

271/ Id. at 388-90. Further, the D.C. Circuit has found that Congress sought to minimize the risks to “state-owned systems” regarding the seemingly inevitable pressures to self-censor which face such programmers reliant on state funding by providing the interference-free funding of the CPB. Community-Service Broad., Inc. v. FCC, 593 F.2d at 1114-15.

272/ There are some notable exceptions to this trend. In 1996 the FCC adopted children’s television requirements that included quantitative programming guidelines.

273/ League of Women Voters of Cal., 468 U.S. at 364-373.

274/ See Syracuse Peace Council v. FCC, 867 F.2d 654, 659 (1989), cert. denied, 493 U.S. 1019 (1990) (it is important to avoid “having government officials second-guess editorial judgments”). See also Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1443 (8th Cir. 1993) (en banc) (Arnold, C.J., concurring) (“There is something about a government order compelling someone to utter or repeat speech that rings legal alarm bells.”).

275/ See Radio-Television News Directors’ Ass’n v. FCC, 229 F.3d 269 (D.C. Cir. 2000).

276/ Greater New Orleans Broadcasters Ass’n v. United States, 527 U.S. 173 (1999).

277/ See, e.g., American Amusement Machine Ass’n. v. Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. denied, 122 S. Ct. 462 (2002) (invalidating municipal ordinance restricting minors’ access to “violent” arcade games); Video Software Dealer's Association v. Webster, 968 F.2d 684 (8th Cir. 1992) (invalidating restriction on renting “violent” movies to minors). See generally Harry T. Edwards and Mitchell N. Berman, Regulating Violence on Television, 89 Northwestern U. L. Rev. 1487 (1995). See also Patricia M. Wald, Doing Right by Our Kids: A Case Study in the Perils of Making Policy on Television Violence, 23 U. Balt. L. Rev. 397 (Spring 1994).

278/ Forbes, 523 U.S. at 673.

279/ Id. at 676.

280/ Id. at 680.

281/ Henry Geller, 95 F.C.C.2d 1236, aff’d sub nom. League of Women Voters v. FCC, 731 F.2d 995 (D.C. Cir. 1983).

282/ Id. at 1244-45.

283/ King Broad. Co., 6 FCC Rcd. 4998, 4999 (1991) (quoting Kennedy for President Comm., 77 F.C.C.2d 964, 969, aff’d, Kennedy for President Comm. v. FCC, 636 F.2d 417 (D.C. Cir. 1980)).

284/ Id.

285/ Kennedy for President Comm., 636 F.2d at 427 (quoting Chisholm, 538 F.2d at 359).

286/ See, e.g., Jim Trinity, 7 FCC Rcd. 3199 (1992) (upholding public television station decision to exclude candidate from Republican senatorial debate where candidate was behind in polls and failed to “demonstrate that the participating candidates were not chosen on the basis of their newsworthiness”). Accord John W. Spring, 1 FCC Rcd. 589, 590 (1986) (upholding commercial radio station decision to air debate on talk radio show among Republican senatorial candidates although six qualified candidates were excluded); Cyril E. Sagan, 1 FCC Rcd. 10 (1986) (upholding noncommercial television station decision to exclude candidate from Democratic senatorial debate based on candidate’s low standing in public opinion poll). See also Ross Perot, 11 FCC Rcd. at 13,116 (Reform Party candidate’s exclusion from debate sponsored by Commission on Presidential Debates to be broadcast by commercial television networks did not trigger equal opportunity requirement); Arthur R. Block, Esq., 7 FCC Rcd. 1784, 1785 (1992) (equal opportunity requirement not triggered by exclusion of legally qualified presidential candidate from debate produced by MacNeil/Lehrer Productions to be aired on PBS stations because candidate failed to present “objective evidence,” such as polling data, “sufficient to demonstrate that she [wa]s a major presidential candidate”); Mitchell Rogovin, Esq., 7 FCC Rcd. 1780, 1781 (1992) (presidential debate sponsored by Democratic National Committee and aired on commercial television station did not trigger equal opportunities for candidate who did “not present[] objective criteria sufficient to demonstrate that he [wa]s a major presidential candidate”); Carl E. Person, Esq., 6 FCC Rcd. 7477 (1991) (upholding exclusion of legally qualified presidential candidate from debates to be aired on commercial stations and PBS); Lenora B. Fulani, 3 FCC Rcd. 6245, 6246 (1988) (commercial networks’ coverage of presidential debate between major-party presidential candidates did not trigger equal opportunities provision where excluded candidate failed to show that broadcasters’ decision “was motivated by bad faith rather than the requisite good faith intent to air what was perceived as a bona fide news event”).

287/ Henry Geller, 95 F.C.C.2d at 1244.

288/ Fox Broadcasting Co., 11 FCC Rcd. 11,101, 11,113 (1996). The Commission has also approved programming produced in cooperation with local PBS affiliates that makes free air time available to major candidates in senatorial, congressional, and gubernatorial races. A.H. Belo Corp., 11 FCC Rcd. 12,306, 12,309-10 (1996).

289/ 457 U.S. 853, 858, 866, 873 (1982) (quoting Pico v. Board of Educ., 474 F. Supp. 387, 390 (E.D.N.Y. 1979)). Several school board members implemented this decision after attending a conference sponsored by “a politically conservative organization.” Id. at 856.

290/ Id. at 874-875.

291/ Id. at 870, 875.

292/ Sund v. City of Wichita Falls, 121 F. Supp.2d 530, 547-548 (N.D. Texas 2000); Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp.2d 552, 563 (E.D. Va. 1998); Pratt v. Independent School Dist., 670 F.2d 771 (8th Cir. 1982); Case v. Unified School Dist. No. 233, 908 F. Supp. 864 (D. Kan. 1995); Right to Read Defense Comm. v. School Comm., 454 F. Supp. 703 (D. Mass. 1978).

293/ The Idaho legislature in 2001 rescinded the programming restrictions, rendering a potential court challenge moot. However, this is not likely to be the last time a state legislature adopts restrictions on public television programming. As noted earlier in this Report, some state content restrictions are imposed as direct mandates, while others take the form of funding restrictions. The next subsection examines in greater detail legal constraints on funding restrictions.

294/ See Idaho Public Television Report, supra note 177 at 6.

295/ Id.

296/ Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

297/ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

298/ Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

299/ Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

300/ League of Women Voters, 468 U.S. at 380. See id. at 378 (“the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area”).

301/ Forbes, 523 U.S. at 673, quoting Democratic Nat’l. Comm., 412 U.S. at 110.

302/ Forbes, 523 U.S. at 673 (emphasis added).

303/ Id., quoting 47 U.S.C. § 309(a).

304/ WXPN(FM), 69 F.C.C.2d at 1398, quoting Broadcast Licenses and Public Agreement, 57 F.C.C.2d 42, 47-48 (1975).

305/ League of Women Voters, 468 U.S. at 388-90. Further, the D.C. Circuit has found that Congress sought to minimize the risks to “state-owned systems” regarding the seemingly inevitable pressures to self-censor which face such programmers reliant on state funding by providing the interference-free funding of the CPB. Community-Service Broad, 593 F.2d at 1114-15 (plurality op.).

306/ 47 U.S.C. §§  396(a)(3), 396(a)(6), and 398(c).

307/ 467 U.S. 691 (1984).

308/ Id. at 708. See also id. at 704 (By “shifting its policy toward a more favorable regulatory climate for the cable industry, the FCC has chosen a balance of television services that should increase program diversity. . . . Clearly, the full accomplishment of such objectives would be jeopardized if state and local authorities were now permitted to restrict substantially the ability of cable operators to provide these diverse services to their subscribers.”) (citation omitted).

309/ Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, 360 U.S. 525, 535 (1959) (“we have not hesitated to abrogate state law where satisfied that its enforcement would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”) (citation omitted).

310/ 184 F.2d 153 (3d Cir. 1950). The Carroll court held that the federal government had occupied the field of television regulation.

311/ Id. at 156.

312/ State v. University of Maine, 266 A.2d 863 (Me. 1970).

313/ Id. at 866-867.

314/ Id. at 868-869. In finding this preemptive effect of federal law, the court cited Sections 326 and 398 of the Act. It also rejected the state’s argument that public funding enlarged state authority over programming, finding “no authority in support of this novel position.” Id. at 868.

315/ McGlynn v. New Jersey Public Broadcasting Authority, 439 A.2d 54 (N.J. 1981).

316/ Id. at 137-139.

317/ Id. at 141-142.

318/ E.g., KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922 (5th Cir. 1983), aff’d. mem. sub nom. Texas v. KVUE-TV, Inc., 465 U.S. 1092 (1984) (Communications Act held to preempt state statute setting rates for political advertising and sponsorship identification requirements for federal candidates or committees); Sagan v. Pennsylvania Public Television Network, 544 A.2d 1309, 1312-13 (Pa. Sup. Ct. 1988) (Communications Act preempts local law governing political broadcasting).

319/ Muir, 688 F.2d at 1047-1048. See also id. at 1041 (“the broadcast licensee has sole programming discretion but is under an obligation to serve the public interest”).

320/ State v. University of Maine, 266 A.2d at 868. Such a purpose may be considered diametrically opposed to the Communications Act’s public interest requirements which are based on First Amendment values. See, e.g., Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 546 (1980) (Stevens, J., concurring) (“A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a ‘law . . . abridging the freedom of speech, or of the press.’”).

321/ Regan v. Taxation with Representation of Washington, 461 U.S. 540, 548 (1983); Perry v. Sindermann, 408 U.S.. 593, 597 (1972); Speiser v. Randall, 357 U.S. 513, 518 (1958).

322/ 531 U.S. at 547.

323/ Id. at 544.

324/ Id. at 543.

325/ Id.

326/ 64 F. Supp.2d 184 (E.D.N.Y 1999).

327/ Id. at 200. The court did not rely on the public forum doctrine.

328/ 766 F. Supp. 1121, 1126-27 (S.D.Fla. 1991).

329/ 644 F. Supp. 811 (D.D.C. 1986).

330/ Id. at 816. Although the court described the Library of Congress as a non-public forum, it principally relied on the unconstitutional conditions doctrine to invalidate the government’s actions. See id. (describing constitutional infirmity as a “viewpoint-based denial of a subsidy”); id. at 815 (“Although individuals have no right to a government subsidy or benefit, once one is conferred, as it is here through the allocation of funds for the program, the government cannot deny it on a basis that impinges on freedom of speech.”).

331/ Rust, 500 U.S. at 200.

332/ National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

333/ Velazquez, 531 U.S. at 544-549.

334/ American Library Ass’n. v. United States, No. 01-CV-1303 (E.D. Pa. filed March 20, 2001); Multnomah County Public Library v. United States, No. 01-CV-1322 (E.D. Pa. filed March 20, 2001).

335/ Proceedings of the Wingspread Conference, Editorial Integrity in Public Broadcasting 11 (November 1984).

336/ Id. at 71.

337/ See Statement of Principles of Editorial Integrity in Public Broadcasting at 3.

338/ 47 U.S.C. §§ 396(a)(3), 396(a)(6), and § 398(c).

339/ League of Women Voters, 468 U.S. at 378; Forbes, 523 U.S. at 673.

340/ See Editorial Integrity Handbook at 40.

341/ Ky. Rev. Stat. § 168.030.

342/ Forbes, 523 U.S. at 669-670.

343/ Id. at 670.

344/ Schauer, supra note 199 at 90.

345/ Forbes, 523 U.S. at 674.

346/ Id.

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