Community-Service Broadcasting of Mid-America, Inc. v. Federal Communications Commission and United States of America

$10,000 аlleged in this case satisfies the jurisdictional prerequisite.

COMMUNITY-SERVICE BROADCAST- MID-AMERICA, INC.,

ING OF et

al., Petitioners,

FEDERAL COM- COMMUNICATIONS United

MISSION and States

America, Respondents. 76-1081.

No. Court Appeals,

United States

District of Columbia Circuit.

Argued Banc En Jan. Aug.

Decided Sept.

As Amended WRIGHT, Judge,

Before BA- Chief ZELON, McGOWAN, TAMM, LEVEN- THAL, ROBINSON, MacKINNON, ROBB WILKEY, Judges. Circuit WRIGHT, Judge, J. Chief SKELLY filed (Parts opinion IV), the court I and BAZELON, Judges, which Circuit McGOW- WILKEY, AN, ROBINSON, joined. Marks, C., Washington, Richard D. D. WILKEY, joined also Judge, Circuit Toohey, Washington, with whom Daniel W. II, Parts III and V. Judges Circuit BAZEL- C., brief, petitioners. D. was on for Patrick ROBINSON, W. ON and SPOTTSWÓOD C., M. Connolly, Washington, D. also en- III, opinions concurring part. filed appearance tered an petitioners. for LEVENTHAL, Judge, joined Circuit Pash, Jr., Counsel, C., Grey C. F. C. TAMM, Judge, Circuit filed a dissenting C., Washington, D. with whom Ashton R. opinion. Hardy, C., Gen. Counsel for the F. C. Wash- MacKINNON, Judge, joined by Circuit ington, C.,D. at the time the briefs were ROBB, Judge, Circuit filed a dissenting filed, Armstrong, Daniel M. Associate Gen. opinion. Counsel, C., Weintraub, F. C. and Lee I. Justice, Atty., Dept, C., Washington, D. Rehearing On En Banc brief, were on respondents. Carl D. WRIGHT, J. Judge: SKELLY Chief Lawson, Justice, Atty., Dept, of Wash- 399(b) This case involves of the Section C., ington, appearance D. also entered an Act, 399(b) Communications 47 U.S.C. § respondents. 1975), (Supp. V promulgated and the rules Marc I. Steinberg Stephen and H. Hollo- thereunder the Federal Communications way, C., Washington, D. United States Sen- Commission, Order, Report and Docket urging ator Robert Griffin constitutionality. (December 19, 1975). FCC2d 19 Frank, C., Theodore D. Washington, D. provisions These require all noncommercial filed a brief on behalf of amicus curiae educational radio and television stations1 Public Broadcasting urging Service uncon- which any funding receive federal under stitutionality. authority of the Communications Act to Jr., McHugh, C., James L. Washington, D. make audio recordings of all “in broadcasts filed a brief on behalf of amicus any curiae which public importance issue of Corp. for Public Broadcasting urging un- discussed.”2 licensee must retain the constitutionality. recording audio days, pro- for 60 and must 1. Noncommercial educational radio and televi- impor- trine’s “controversial issue of functioning sion stations include both those Proposed Rulemaking, tance.” Notice of solely primarily provide in- Fed.Reg. classroom (1973). Prompted part by programs structional and those directed at correspondence from Senator Robert Griffin general “public more audiences. The term strongly position, took issue with this broadcasting” following pas- came into use significantly the Commission broadened its def- sage 1967; of the Public Act of subject inition public broadcasting technically while does not 399(b)’s recording requirement. Specifically, § programming, include instructional educational recording the Commission called for and reten- broadcasting public broadcasting gen- are talks, tion of those “which consist of erally interchangeably. requirements used commentaries, discussions, speeches, editori- organization apply which an must meet to for a als, political documentaries, forums, programs, license, noncommercial educational and the roundtables, panels, programs pri- and similar regulations governing conduct of such licen- marily local, concerning national, and interna- sees, are set forth at 47 C.F.R. 73.621 Report Order, tional affairs.” Dock- et 57 FCC2d 21 & n.ll Initially equated “any the Commission issue public importance” with the fairness doc- force it violate the First and Fifth copy vide a member Federal Amend agree. We requests who ments of the Constitution. We Communications Commission hold that one, Communica or to within member burdens places tions Act on non substantial receiving request days pay seven commercial broadcasters educational ment of reasonable costs.3 presents governmental the risk of direct here, a Petitioners number of non interference content. Since no stations, commercial educational broadcast substantial interest has been challenge constitutionality of these re shown on the other side the constitution quirements, balance, arguing that Section al rules at the statute and issue are the rules promulgated FCC to en- unconstitutional.4 program supplied by directly 3. Where a a network or those which are funded entity, may designate other entity the licensee CPB under 396 and which “of a contro- nature”; contrast, the 399(b), sharp record and retain broadcast. Such versial according in § days permitted provide copies entities are plain requires to its words all such upon request. Id. at 23-24. programming licensees to record all of their any public importance which “issue of is dis- 399(b) requires 4. Section face on its “each cussed,” program whether or not the is funded licensee which assistance receives under sec- by government the federal and whether or not 6, August tions 390 to 399 this title after it is controversial. 1973, recording shall retain an audio of each of are, think, There we a number of serious any any its issue of broadcasts of which approach, flaws with this and with the result it public (Em- importance is discussed." all, Judge reaches. First of as Leventhal him- phasis added.) Judge Leventhal seeks to re- recognizes, provides sup- self the law case write this statute to avoid the constitutional port ing judicial for the kind of wholesale redraft- Judge infirmities that Leventhal does its mandate invalidation. clearly legislation stated which he disagree the First sure, engages here. To be it is well established of a statute is not by play” brought Amendment is “into this stat- meaning that where the ute; recognizes compliance he with clear, questions and where constitutional are 399(b)’s recording requirement may § “discour- by interpretation, plausible raised a the courts age the communication of ideas or informa- should seek to construe the statute to avoid the tion,” and that the statute can therefore be See, questions. g., constitutional e. Crowell v. upheld only narrowly as if constitutional it is Benson, 285 U.S. 76 L.Ed. 598 government tailored to serve “substantial” a language dissent, But where the of a statute is U.S.App.D.C. interest. Leventhal meaning plain, Supreme at-, clear and its Court Judge 593 F.2d 1144. And at Leven- repeatedly against judicial has cautioned ef- thal is admits that he unable to discern any forts to rewrite policies on the the statute basis of the the government substantial interest which objectives by to be served said narrowly by application would be served legislation. Hochfelder, Id., Ernst & Ernst v. plan according meaning. the statute to its 185, 197-201, -, U.S.App.D.C., Judge 593 F.2d at 1146. Oregon, L.Ed.2d 668 States United v. But sion to avoid the Leventhal seeks conclu- 6 L.Ed.2d that follows this—that from the statute is EPA, Corp. See also arguing Lubrizol indeed legislative that the unconstitutional — n.25, U.S.App.D.C. F.2d 399(b) provide 299 & §of was to congressional oversight compli- means ance with 818 & n. 25 In this case for there is no uncertainty meaning 396(g)(l)(A)’s requirement as to the of the statute. § balance,” statutory 399(b) clearly unambiguously “strict im- and re- and quirement only poses (1) applicable recording requirement which its terms is on all noncom- receiving Corporation for Public Broadcast- mercial assistance licensees under ing, licensee”; 390-399; distinguished (2) imposes require- clearly as “each §§ from and it applies only actually “pub- which funded ment for all in which issues of by CPB, importance” Application distinguished as from “assistance un- lic are discussed. does not (such requirement upon der in- turn sections 390 to assistance the not whether or 399” salaries, operations, funding particular program cludes equipment, for and to be recorded is funds, supported programming); as well federal nor does' it turn as only upon applicable “programs programming which is of a whether the is controver- construction, nature,” distinguished Judge controversial “any program sial or not. Leventhal’s only requirement which sial supported by to controver- in which issue of limits the importance only programming Judge programming is discussed.” On this basis entirely wholly is in- Leventhal rewrites so that indi- CPB under unambiguous plain receiving vidual consistent with words licensees assistance under required meaning §§ 390-399 would be to record of the statute. casting University from the

I of Wisconsin.5 space first reserved certain FCC significance and function of Section rad spectrum the radio for educational apart cannot be understood from the io,6 frequencies were reserved larger federal involvement scheme of well.7 It television as was not broadcasting. noncommercial It to this first, system place however, that we turn in order to until federal review here in under became involved in direct proper context. funding program broadcasting, for public that program even was limited to con broadcasting

Public dates back at least to struction of station facilities. began 1919 when Radio 9XM broad- Station legislative history pressed imagine why Even if examination hard necessary were clearly unambig- in this case to determine the have enacted a statute so statute, meaning Judge con- uously applicable Leventhal’s is to all of the hardly supported, one struction let receiving of all licensees federal compelled, by legislative alone history. the available provisions assistance under with, begin Judge To Leventhal relies congressional purpose §§ 390-399. The ad- senator, single on the oral statements of a Sen- is, Judge quite simply, vanced Leventhal Griffin, ator his revision of the stat- plain meaning inconsistent with the words and statements, however, recognized ute. Such as of the statute which in fact enacted. perhaps construing weakest basis Finally, Judge approach, Leventhal’s in seek- Congress inconsistently plain intent of problems to avoid the clear constitutional Sacks, meaning of a statute. See H. Hart A.& stemming application from the statute Legal (tent. 1958). Second, Process ed. according plain meaning, to its new creates and important, assuming and more Senator Grif- potentially equally troubling constitutional determinative, purpose fin’s as fact questions which would not be otherwise raised. affirmatively recording he requirement subject did not intend the by passed Congress, statutory require- As apply only programs to those objectivity ment of strict a standard for CPB to follow its and balance serves as 396(g)(l)(A)’s requirement §to of strict funding in objectivity balance, Judge and as Leventhal ar- Judge decisions. Leventhal’s version of the gues. requirement objectivity The of strict programs and statute, however, enforces this strict standard applies only balance “of a contro- against the individual licensees themselves. CPB; contrast, supported by by versial nature” only appears Such a construction not inconsist- 399(b) by recording § mandates licensees sub- Congress’ repeatedly ent with leave the individual licensees as stated desire to ject requirement programs to its all of “in possi- as free any public importance which issue of is dis- government regulation program- ble from ming; of cussed.” far-ranging it also raises difficult and Proposed Rulemaking In its initial of Notice questions scope permissible implement 399(b), as to the of pro- to posed § the Commission licensees, regulation 399(b)’s coverage content that § be limited to particularly light dealing Supreme “controversial issue Court’s public importance.” approval of issue Senator Griffin took cautious of the more limited fairness Broadcasting with this definition in a letter doctrine in 395 U.S. (1969). Lion Co. v. Red Commission, arguing coverage 23 L.Ed.2d 371 broadly § should be defined more than Judge approach, Under Leventhal’s we proposed the Commission had and should in- judiciary impose, in the would be forced to any program clude importance which issue of, adjudicate constitutionality a direct Prompted was discussed. Sena- Congress content restraint on licensees which Congress tor and public Griffin’s views to the intent of impose. itself has not in fact chosen to Rather “any the inclusion the words issue of solving problems than all of the constitutional statute, importance” in the the Commis- then, 399(b), Judge approach of § Leventhal’s adopted position sion its reconsidered a only substituting problems succeeds new for coverage 399(b). broad rule of for See note 2 those that and intended. beset statute as it was written supra. Thus it is clear that Senator Griffin’s objectives, upon Judge Leventhal relies Frost, 5. S. Education’s Own Stations 464 heavily, imposing so cording requirement only subject were not limited re- Note, (1937). generally “Balance and Ob- on thоse jectivity” Broadcasting: in Public Fairer Than standard; and balance Fair?, 61 Va.L.Rev. 644-648 view, coverage in his in- §of was Indeed, tended to be far broader. had Senator 6. 47 Griffin, anyone Congress, §§ C.F.R. 4.131-133 else in intended to impose recording only upon CPB, Fed.Reg. controversial funded one 7.

H07 Recognizing special sensitivity, areas of Broadcasting Television Educational Act,8 passed in authorized a persuaded Facilities that a Commission non- spent on 32 million dollars to be total of necessary institution is five-year period.9 television over a part least a receive and disburse at Health, Secretary of the Act Under escape those funds. The Education, distributes funds and Welfare scrutiny but to minimize the likelihood equipment neces acquisition physical for scrutiny that such will be directed toward transmission, subject for television to a sary day-to-day operations of the sensitive per-state matching requirement local program portions the Public Television funding. Money received un limitation * * * system. provisions may der these be used for added). (emphasis Id. at 36-37 salaries, equipment, operating not for ex penses, program production. Carnegie Commission’s recommenda support pro tion that federal financial years Carnegie Five later the Commission gramming operations provided completed on Educational Television through Corporation for Public Broad broadcasting. study landmark Its casting (CPB) adopted by Congress Program A report, Public Television: Action, the Public Act of 1967. In its that noncommercial television found greater finan- policy stations were in need of far declaration of contained this Act support beyond existing cial private corporation found “that a —above frequencies by reservation of the FCC and develop should be created to facilitate the grant program administered the facilities ment of educational radio and television their full HEW —if were to realize pro maximum broadcasting and to afford potential. Carnegie While the Commission broadcasting to such tection extrane recognized important role state and ous interference and control.” U.S.C. governments private sources in local CPB, 396(a)(6) (1970). nonprofit Dis stations, public television it con- funding corporation, trict of Columbia was estab operations federal cluded 396(b). purpose. lished to serve this Id. § raising essential programming was governed by a 15- Under the Act CPB is larger money nec- significantly sums Directors, appointed by member Board of system essary for effective subject by to confirmation the President Carnegie on Educa- television. Commission Senate, eight of whom no more than Television, A Pro- tional Public Television: political par may members of the same be (1967). gram for Action 33-35 The Com- 396(c)(1). The Board is authoriz ty. Id. § pro- then focused on the means for mission program funds it receives to ed to disburse funding: federal viding this production entities and noncommercial contemplate we federal assist- Because stations,10 arrange for an inter broadcast larger ance to Public Television on a far distributing system capable of connection present, pressing than at need scale stations, to con to noncommercial identify arises to the manner demonstrations, and to duct research system. will federal funds flow encourage new noncommercial creation of There is at once involved the relation granting 396(g)(2). Id. While stations. § expression, freedom of intimate- between nonprofit powers” “the usual of a cor CPB ly necessarily a concern of Public law, Television, id. support. poration federal under District of Columbia Pub.L.No.87-447, receiving May Act funds from 76 Stat. 10. Under the stations 8. Act requirements licensing must meet the codified at 47 U.S.C. CPB §§ applicable to noncommercial stations the FCC by operated must be owned and and agency to the Act au- 9. The most recent amendment foundation, corpo- nonprofit private or appropriations of 30 million dollars fоr thorizes 397(7) ration, § or association. 47 U.S.C. year 1977 to assist in construction of fiscal matching through or radio facilities television part). (1977 pocket grants. 47 § U.S.C.A. 391 396(g)(3), Congress expressly prohibited President Johnson said in message his Corporation owning from or operating February 28: station, network, or interconnection fa Noncommercial and radio television cility, contributing or to or from otherwise America, though supported by even supporting any candidate for office. Id. funds, Federal must absolutely free 396(f), (g)(3). assisting in program Federal Government interfer- ming development required CPB is to ad ence over programming. strictly here “objectivity standard of S.Rep.No.222, Cong., 90th 1st Sess. * * * balance in all of a (1967). The same theme is in the echoed controversial nature.” 396(g)(1)(A). Id. § Report: House And in their local no noncom How can the Federal pro- Government mercial station “engage in editorializ vide a source of funds to pay part of the ing may support or oppose any candidate cost of educational broadcasting and not political office.” 399(a) 47 U.S.C. § product? control the final question That (Supp. 1975).11 V is answered in the bill the creation of Establishment of the CPB and the statu- nonprofit broadcasting educational cor- tory scheme of the Public Act poration. product congressional were a of a determi- Every witness who opera- discussed the nation strong safeguards were neces- Corporation agreed tion of the that funds sary to funding ensure that federal pro- for programs provided should not be di- gramming did not carry any political with it rectly by the Federal Government. It influence on the program- contents of that generally agreed nonprofit that a ming. Report Thus the accompany- Senate Corporation, directed a Board of Di- ing the Act carefully pointed out: rectors, none of whom will be Govern- There general agreement that for the employees, ment provide will the most being, time Federal financial assistance is effective insulation from Government required provide the resources neces- control or influence over expenditure sary for quality programs. It is also rec- * * * of funds. ognized that this assistance should in no way involve the Government in program- H.R.Rep.No.572, Cong., 90th 1st Sess. 15 ming judgments. An inde- pendent entity supported by Federal course, This is say, not to that Con required

funds is provide programs gress place public chose to broadcasting be political free of pressures. The Corpora- yond any regulation. form of federal Indi tion for Broadcasting, Public nonprofit vidual stations are licensed the FCC and private corporation, authorized title II generally subject regula to the same provides S. 1160 such an entity. tions as are commercial licensees.12 While Broadcasting

the Public provides Act nothing Your committee has heard the 1962 or 1967 considerable Acts “shall be * * * discussion about the fear of deemed any depart Government authorize ment, control or agency, officer, interference in programming employee if or of the S. is enacted. We wish any direction, to state in United States to exercise su strongest possible pervision, terms that it is our or control over educational televi intention that local stations absolutely sion broadcasting, or radio or over the Cor free to determine for poration themselves what grantees or of its or contrac * * they should or should not *,” broadcast. As (1970), tors 47 U.S.C. 398 § constitutionality editorializing 11. The regulations governing broadcasters and adver- prohibition 399(a), 399(a) tising) 399(a) § U.S.C. (Supp. 1975) § and 47 § U.S.C. V (Supp. 1975), V (prohibition issue by case. editorializing noncommercial stations), 399(b). as well as § Exceptions include 47 73.621 § C.F.R. (qualification standards for noncommercial

HQ9 Thus we have in Congress CPB is accountable to and the effect a carefully bal- public. required prepare It is an annual system against politi- anced of dual checks report of its activities for transmittal to cal influence programming: over thе Cor- Congress, annually, must be audited is sub- free, poration is within the constraints of ject by Accounting to audit the General balance, congressional in- Office, and, finally, subject congres- determining terference in which entities or oversight through appropriations sional support, endeavors to and the stations are process. 396(i) 1975), (Supp. U.S.C. V free, subject generally applicable FCC 396(1)(1970). 47 U.S.C. § regulation, accept reject or supported by by CPB and transmitted PBS But oversight process even in this or National Public Radio. As the House statutory designed scheme is to foreclose Report stated: exercising any from control over programming; while it can examine CPB’s In the same manner the bill performance, overall congressional over Corporation strives to insulate the from sight does not directing extend to CPB—or governmental control, provides the bill Broadcasting (PBS), the Public Service and the committee intends to see to it interconnections facility formed stations broadcasting local educational largely by and funded CPB to transmit stations conduct their operations without programming to local licensees13—as to Corporation interference or control. deserving or entities are H.R.Rep.No.572,supra, at 20. Moreover, support. the federal This court has been sensitive to maintain CPB, is not the sole source of funds for nor by Congress delicate balance struck is it primary source of financial Broadcasting the Public Act in our decisions whole14; public broadcasting for as a construing Accuracy that Act. Thus in year percent fiscal 27.7 of total Media, Inc. v. U.S.App.D.C. public broadcasting provided income (1975), upheld 521 F.2d 288 we the FCC’s Finally, federal sources.15 neither CPB nor jurisdiction determination that it lacked pro PBS can themselves determine which enforce the “objectivity and balance” stan grams actually seen viewers around CPB, against emphasiz dard of the Act country; the ultimate decision as to opposite might that an enlarge result whether an available is broadcast control of stations, is left to the local which CPB is thereby raise substantial constitutional owning operating foreclosed from under questions. Project Corp. And in Network the statute. The only constraint on the Broadcasting, U.S.App.D.C. Public respect local stations’ discretion in this im (1977), denied, 561 F.2d 963 cert. posed by statute is that refrain editorializing endorsing any political can U.S. L.Ed.2d 770 didate. private rights we held that of action Television, Program 13. The Public Act and CPB au- Public Television: A funds Appropriations thorize for both noncommercial radio Action 41 to CPB in any year and television. The interconnection service for are limited statute to 40% performed by radio is Public National Radio. by public broadcasting total amount received years from nonfederal sources two before. 47 Carnegie Report empha- 14. The Commission 396(k)(3) 1975). (Supp. U.S.C. V permitted sized that CPB should be to solicit sources, private resources from and this recom- year broadcasting in- In fiscal 1976 adopted by Congress. mendation was 47 $413,075,000, $114,030,- come totaled of which 396(g)(2)(A) (1970). According U.S.C. Carnegie Commission, to the provided by Group 000 was sources. federal “freedom from CPB’s Analysis Projection on Force and of the Task political greater control will be all if it Long Range Financing, Broadcasting on Public possesses depend- resources for which it is not Projection (Preliminary Finances: Profile and upon government, though ent even those Draft, May 1977); curiae brief for amicus only part resources constitute its total Broadcasting Public 7 n.6. Service at Carnegie needs.” on Educational Commission 1110 dispute. The first the Act is that noncommercial implied

could not be to control licensees oversight fully protected CPB’s activities. are the First Any Cor- found, Amendment. existence poration, place Clearly, pub take we could lic does not render the through requirements audits and licensees vulnerable to interference the federal appropriations. accountability, as well government regard to or without restraint Amendment., by the First For while the II provide Government is required not fed passed Section as an amend- broadcasters, eral funds cannot condi ment Act in Communications 1973 tion receipt acceptance funds those with legislative little debate or other histo- conditions which could otherwise be FCC, ry. Two years later the accordance constitutionally imposed. See Sherbert v. mandate, statutory promulgated its Verner, 374 83 U.S. S.Ct. 10 regulations compliance governing with the Randall, Speiser L.Ed.2d 965 v. 357 recording requirement. petitioners U.S. S.Ct. L.Ed.2d 1460 review, sought that the arguing statute and Thus the Government cannot con regulations are unconstitutional in that trol the content of programs or selection they provide a mechanism” “ready pre- be broadcast over noncommercial television viously Congress available for members of more than it can control television16; broadcast over government other officials to commercial involve making such decisions—which are at themselves in over issue disputes the contents of broadcasters, in this individual case—noncommercial pro- and to influence counterparts, less than their commercial gramming in the decisions future. Brief protection are entitled to invoke the petitioners They at 42-43. contend that First place upon Amendment as a result its Section —in of justifying any Government the burden operation to burden and chill —serves practice free which restricts decisionmaki rights exercise of First Amendment ng.17 undisputed proposition second noncommercial broadcasters. discussion, requires though even less it is no addressing Before ourselves to the important: less pro petitioners’ substance of First gramming subject Amendment which is claims, prelimi 399(b)’s we must take note of two recording requirement lies at the nary propositions about which there is no- core of the protec- First Amendment’s government, directly 16. Cf. National Co. v. raised United where either or in- States, 204-206, directly, compels or a S.Ct. individual station to (1943) (radio required express government’s L.Ed. 1344 adhere choosing. 705, licensees to or views of the independent Wooley Maynard, exercise discretion of national net- v. works); America, (1977) (stat- Guild West L.Ed.2d Writers FCC, requiring (C.D.Calif. 1976) (First plates F.Supp. ute motor license to be Die,” vehicle motto, embossed with state “Live Free or Amendment violated works, national net- where unconstitutional); Virginia professional jointly held West associations State Barnette, pressured “family Board of Education v. local stations to set aside a viewing by (compulso- hour” suitable for L.Ed. 1628 schoolchildren ry flag children). salute held unconsti- tutional). pation government, by partici- Nor can say government may marketplace, 17. This private is not to in the “drown out” participate marketplace Tribe, never in the of ideas or communication. See L. stitutional American Con- contribute its views to those own of other Law 588-590 Where speakers. government licensing regulation Where chooses to finance program adhering premised munication, scarcity to certain standards or on the of a medium of com- expressing points certain of view and makes it then even noncoercive seem- licensees, subject ingly voluntary grants by available to requirement ably who are to no contracts it, argu- express broadcast then uses medium to rights implicated. point strictly no First Amendment are enforce a nized. of view must be scruti- grave questions clearly But constitutional

HH subject regulation by speech ed While scholars have differed tions.18 399(b) public programming protection core broadly how to define Section — Amendment, agreed licensees —is entitled to all have noncommercial of the First pro panoply is the full of First Amendment vigorous open discussion any argument tection. Nor is there sues should be included.19 govern compelling serves a requires that The First Amendment interest; has conceded that ment FCC scrutiny applied bе the strictest form of compelling governmental objec there is no related to where the of a statute is support of the tive which can be invoked expression of ideas or suppression of free result, As a if this is statute.22 statute scrutiny, Applying information. such strict relating suppression of viewed as one held that the stat Supreme Court has free it must be held unconstitu expression, must be found unconstitu regulation ute or could, think, tional. And it we be so speech question is tional unless either viewed. fully protected by the First Amendment all, compel is essential to a First of the statute on its face suppression or its is not content neutral. interest,20 Application as where the of the ling governmental poses recording requirement depend message being suppressed statutory a clear well-being.21 upon subject program ent matter of present danger to the national earlier, case, undisput- ming; only concerning In this as noted it is issues 14-15, Valeo, 1, Buckley publication sailing 424 U.S. 96 of trans- 18. See v. dates 612, (1976); ports troops.”). 46 L.Ed.2d 659 Monitor Pa- or the S.Ct. number and location cf 265, 272, 621, Roy, States, triot Co. v. 401 U.S. 91 S.Ct. See also New York Times Co. v. United 625, (1971) (“it hardly 713, J., (Brennan, concurring), 28 L.Ed.2d 35 can 403 U.S. 730 guarantee J., 2140, has (Stewart, doubted that the constitutional concurring), 91 S.Ct. precisely urgent application its fullest and most L.Ed.2d 822 political campaigns of- to the conduct of fice”). scarcity spectrum While the of the broadcast may justify government regulation enhanced spectrum, over access to that this rationale has See, Emerson, g., System e. of Free 19. T. narrowly, compare been Red Lion construed Expression (1970); Meiklejohn, Speech Free A. 4, supra v. note Co. (1948); and Its Relation to Self-Government Broadcasting System, Inc. v. Demo- Columbia Kalven, A Note on The New York Times Case: Committee, 94, 93 cratic National 412 U.S. Meaning First Amend- “The Central 2080, (1973). Certainly 36 L.Ed.2d 772 S.Ct. spectrum ment”, generally L. S.Ct.Rev. 191. scarcity cannot be invoked to Tribe, 17, supra note at 578-579. government attempt penalize suppress 518, See, Wilson, g., Gooding e. v. 405 U.S. content, some, general speech, based on its 1103, (1972); v. S.Ct. L.Ed.2d 408 Cohen all, scarcity hardly but not broadcast licensees; California, 15, 1780, 403 U.S. S.Ct. convincing justification serves as a where Ohio, (1971); Brandenburg L.Ed.2d 284 v. subject regulation. some licensees 444, 1827, U.S. 89 S.Ct. 23 L.Ed.2d 430 initially remand- The record this case was Tribe, (“If supra, See also L. note at 591 panel ed of this court to the Commission extraordinary jus- requires first amendment responses questions to secure its to certain government tification of action which is aimed by petitioners’ raised First Amendment chal- at ideas or information that does lenge. response question whether like, guarantee the constitutional should advanced interest by government not be avoidable action which expression, suppression free unrelated to objective seeks to attain that unconstitutional “it difficult to Commission admitted that guise.”); Epperson v. Arkan- under some other identify compelling governmental interest sas, 393 U.S. 21 L.Ed.2d 228 S.Ct. 399(b),” requirements and of- of Section Lightfoot, Gomillion v. suggestions any purposes (1960); Grosjean 5 L.Ed.2d 110 fered might Co., be so considered. Instead the Commis- American Press nothing that “there is sion restated its belief 80 L.Ed. 660 constitutionally improper about a statute which See, Minnesota, g., e. Near v. public’s access does no more thar facilitate 75 L.Ed. 1357 * programming previously *.” broadcast (“No question one would but [when May Response (adopted FCC Remand government might prevent nation is at awar] 1977) at 1. recruiting actual obstruction to its service or provided tapes public importance regulated. public of that audio of This fact af- suggests government purpose alone inten fairs programs would be maintained for tionally impermissibly period restrict free some reasonable of time and would speech on the basis of its content. As the expense person be available at the Supreme recently Court noted: requesting copy. First Amendment means provision

[T]he There is the in the 1967 act government power has no to restrict ex- purposes which states that onе of the ideas, pression message, because of its its development the act is to facilitate the * * subject matter, or its content. high-quality programs “with strict adher- permit building To the continued of our ence objectivity pro- and balance in all politics culture, and to assure self- grams series of a contro- individual, people fulfillment for each our versial nature.” guaranteed right express any certainly agree part You with that thought, free from censor- act, I would think? ship. The essence of this forbidden cen- Mr. Gunn: Yes. sorship Any is content control. restric- you Senator Griffin: And don’t want expressive tion on activity because of its censorship your pro- Government completely content would undercut grams? “profound national commitment No, Mr. Gunn: sir. principle that debate on issues Senator Griffin: But it would seem to uninhibited, robust, should be and wide * * * me private individuals who are inter- open.” trying ested in to assess the Moreover, legislative history of Sec- those way should have some 399(b) provides strong tion support for the finding out what was on the air. view that recording re- Mr. agree, yes, Gunn: I sir. quirement was related to suppression of free expression on issues of impor-

tance. Senator just extended discussion of the Griffin: If I can take a purpose of few place subject, this statute took more minutes on this got I colloquy context of a question between interested in years Senator Rob- this a few Griffin, ert principal ago having advocate of the when we were the debate in recording requirement, who is participating know, you on the ABM. As case, as an amicus in this and Hartford very was a difficult issue for Mem- Gunn, president then of PBS. After the bers Congress, incidentally, it was Senator dealing read two letters with ideo- decided in the Senate one vote. It is logical balance in program- my position, and I realize others don’t ming television, on noncommercial the ex- agree it, supported that if we hadn’t change continued: ABM, the President on the he would not have During negotiate

Senator Griffin: been able to this commit- the SALT agreement. aside, tee’s consideration putting of the 1970 But Public bill, nationally distributed, authorization I offered I an amendment quickly op- which was assume your organization. It was a posed by many people very interesting example Public Televi- for me because sion —an amendment which my would have party happened chairman of the other Department Chicago Mosley, time, 23. Police place, manner, “not in terms of 92, 95-96, 2286, 2290, 95, 99, subject but in terms of Id. at matter.” Supreme Time, L.Ed.2d 212 In that place, case the 92 S.Ct. at 2292. and manner restrictions, Chicago Court was reasoned, confronted with justi- ordi- the Court be prohibiting picketing vicinity nance equal protection all grounds fied on if tailored nar- except peaceful picketing. rowly school labor to serve a substantial in- declaring unconstitutional, the ordinance Id. at terest. 92 S.Ct. 2286. Content problem” discrimination, Court saw as hand, the “central the fact based on ‍‌​​‌‌‌​‌‌​​​​​​​​‌​‌​​‌‌‌‌​‌​‌​​​‌​​‌‌​‌‌​​​‌​​‌‍the other “is impermissible picket- that the statute permitted.” described Id. never 92 S.Ct. 2286. tapes ABM, These must maintained agree with me on the as I recall. Mr. right, days, possible public Is that Chairman? station for 60 course, scrutiny. no commercial Of right. That’s Senator Pastore: require- broadcaster is saddled with this I had heard about this Senator Griffin: dangerously ment —it comes close to cen- that it was biased and un- program and reason, point sorship. For this I must out Unfortunately, get I did not to balanced. provi- that as far as I am concerned the course, it, but, you can’t be watch- see question way “hunting sion in a is in no all At ing all the channels the time. license” for time, tape Federal Government. transcript I asked for a or Rather, device, pay housekeeping it is a which glad and indicated that I would be to involved, expense rarely but I if anticipate for whatever ever used. will be no, I was though the answer was even (1973) (emphasis Cong.Rec. add- though I Congress, Member of and even ed). was a member of this committee. initially striking What is most about this request Mr. Gunn: Was that made legislative history is its marked contrast Broadcasting or was it the Public Service Broadcasting that of the 1967 Public Act. producer program? made of the I Report Whereas the Senate on the 1967 Act trying am to recall. explicitly stated that federal financial as Griffin: I can’t recall either. Senator way sistance “should in no involve the event, any get any help. In I did not programing program Government Frankly, your letter to the Wall Street judgments,” and that local stations should keeps going, you only Journal me because ” “absolutely broadcasting free in their going tapes make these available Griffin, decisions,24Senator having been re only people you consider have tape attempts buffed in his to secure proper journal- credentials in research or though an individual “even I was a ism. though I Congress, Member of and even Now, you policy if believe that is a committee,” awas member of this advocat my legislation, substitute for I don’t. To necessary as a recording requirement ed the any censorship, avoid kind of Government censorship government alternative you should make broadcast programming. recording requirement A over-the-air available to the as is Deerlin, Representative Van one of printed the case with material that is supporters, “compng] danger its viewed as newspaper. It is in the domain ously censorship” incorpo close to was thus any I how point. at that don’t see broad- purpose, according rated into an Act whose caster can refuse or make it difficult to original Report, House was to allow put find out what has been on the air. “provide the federal source agree you absolutely. Mr. I Gunn: pay part of funds to of the cost of educa Broadcasting Hearings Public on S. 1090 — broadcasting final tional and not control the Before the Subcommittee Communica- * * * product provide the most ef [to] tions of the Senate Committee on Com- control fective insulation from Government merce, (1973) Cong., 93d 1st Sess. expenditure influence over Later, (emphasis added). during de- House funds.”25 bill, Congressman bate on the Van Deerlin sure, Congress generally stated: To be mind; amending legis change free to addition, proposed section 2 of the intent lation is not bound legislation stipulates station re- body. it is bound of an earlier But ceiving assistance from CPB make audio legislative purposes in which transcriptions Constitution. Act, is discussed. as stated public importance issue of 1967 Public Cong., Cong., S.Rep.No.222, H.R.Rep.No.572, 1st 1st Sess. 15 90th Sess. 90th added). (emphasis nor Reports, 399(b)’s shown that Section inciden- in the and House reflect Senate prudential judgment that Con- tal First Amendment free- restriction on gress pro- in the greater should involve itself doms is not than is essential to the licensees, gramming decisions of local but interest. we ex- furtherance of that When also a judgment light constitutional it must amine in the these criteria, compelled not do To the so. extent Section O’Brien we are find 399(b) rejects judgment, regulations and was in- the statute and unconstitution- impose threat al. tended instead of con-

gressional governmental or control over the A. The Amendment First Chill

content of noncommercial affairs broadcasting, upon it is based a applying the O’Brien threshold which mandates its invalidation. is, course, tests does im of that a statute pose a restraint on First free Amendment

Ill restraint, doms. Absent such we have no not, however, We on require need rest this basis occasion the 399(b). invalidating alone in interest be impor Section Since involved substantial and 399(b) clearly imposes tant, Section at least opposed merely legitimate, inci- as or to dental on restraints First Amendment free- examine the closely employed by means the doms, upheld only it be can if it is statute to further the stated end. “[1] within the constitutional Government; ^[2] if it furthers an power important the clearly case we met —even think this threshold apart from the actual substantial government interest; ^[3] if burdens compliance with Section 399(b)26 the governmental —by chilling interest is unrelated to Section the effect which the suppression of free expression; and ^[4] 399(b) imposes local licensees their if the alleged incidental restriction on rights. First exercise of First Amendment greater Amendment freedoms is no than is Government financial of noncom- essential furtherance inter- broadcasting mercial itself with carries it O’Brien, est.” v. United States 391 U.S. dangers inhibiting program- of an effect on 367, 377, 1673, 1679, 20 88 S.Ct. L.Ed.2d 672 ming. Breitenfeld, Dr. Frederick Executive Maryland Director of the Center for Public Thus, if we pointed even assume that enactment Broadcasting, sys- has out that his tem, of Section is within the any system, constitutional other state-owned power government, govern- likely” “less than would otherwise be to mental present interest political program- enactment unrelat- controversial expression, case, ed to suppression ming. said, free In his own he it would be important and government unlikely substantial in- that viewers would see a identified, terest it furthers has not highly Maryland been critical General As- Compliance 399(b) may disruptions entail some and its staff are limited. Such uncertain; may financial burden those stations which would course none ever occur. Even so, involved, expense otherwise record all of taping their affairs the risk like the programming; required itself, programming renders purchase equipment costly undertaking devote staff time suf- more than it be ab- programming. 399(b). ficient to record all such While sent § part may of this financial burden be borne recognized The FCC itself has burdens of funds, given statutory resort to federal limi- compliance 399(b) in §with its consideration of appropriations tations on the fact remains recording requirement whether a similar should resources that could be otherwise available for licensees; applied commercial Com- programming other of a areas licensee’s mission, finding that the burden involved out- operations compli- will be assure diverted to secured, weighed any benefits to be decided Moreover, necessity ance with the statute. that commercial licensees should not be sub- producing large distributing number of jected recording requirement. to a Third Re- copies relatively period may in a time short port Order, Docket 64 FCC2d disruption op- occasion a serious station’s erations, particularly where station is small (1953), aff’d, FCC2d 851 sembly, Assembly U.S.App.D.C. since the is the source of (1975), and where funding.27 While 521 F.2d 288 it must system’s two thirds place, take of the fair some such inhibition be inevitable enforcement doctrine, accompanied been any funding, scheme of ness review has by judicially imposed risk to First Amendment values must be standards and safe guards designed to minimize intrusion on pass minimized if the scheme is to constitu Tucker, muster. v. 364 First Amendment values. National tional See Shelton Broadcasting 81 S.Ct. 5 L.Ed.2d Citizens Committee for U.S. FCC, Broadcasting U.S.App.D.C. In the Public Act of 567 F.2d 1095 Communications, Congress sought (1977); minimize such risks Straus Inc. v. FCC, by ruling deciding U.S.App.D.C. out role for itself in 530 F.2d 1001 Co., what or entities are funded National Inc. v. by preserving U.S.App.D.C. local CPB freedom of 516 F.2d 1101 moot, day-to-day U.S.App.D.C. broadcasters to make their own vacated as curiam), decisions without inter (per 516 F.2d 1180 cert. 399(b), denied, ference CPB. on the hand, by creating

other enhances such risks L.Ed.2d 313 review, pro a means for government on a true, course, It strongly as the FCC basis, gram-by-program of the contents of asserts, that Section on its face nei every public every affairs broadcast of li any ther creates new content restrictions on censee who has received financial noncommercial licensees nor establishes from either HEW or CPB. new existing mechanism for enforcement of establishment recommending program-by-program of CPB standards on a basis.28 distributing as a mechanism for federal But the fact is that system of broadcast FCC, programming, Carnegie regulation by Congress funds for Com- and structured, recognized dangers currently provides ample oppor mission the inherent protected by tunity chilling the free and robust discussion for substantial of First freedoms, the First Amendment where are particularly Amendment where subject small, by relatively publicly supported to review on an individual basis stations emphasized 399(b), officials. It are opera concerned. in its Section purpose tion, escape clearly of CPB “is not to scruti- serves to facilitate those exer ny but to power persuasion minimize the likelihood that such cises of which create scrutiny day-to- will be directed toward the the chill. And while the statute itself con day operations program applicable of the sensitive tains no new content standards licensees, portion of the system.” expressions Public Television to noncommercial Carnegie Commission on Educational Tele- of concern and with the con dissatisfaction vision, supra, recognition pro at 37. This of the tent of noncommercial affairs risks of program-by-program gramming legislative history review is one in the of this suggest that has been shared both the courts and statute its effect —if not its impose the Federal Communications Commission. stricter content stan —is generally FCC has eschewed such dards on noncommercial licensees in their review, Media, Inc., Accuracy programming. see affairs 27. Statement of Dr. Frederick Breitenfeld be- consideration of whether these broadcasters Representatives subject recording requirement. fore the House of Subcommit- should be to a (Sept. 1976), report- proposed tee on Communications The FCC found “the concern that the 12, 1977, Broadcasting magazine, Sept. ed in might chilling speech at rule have a effect on free press” easily one that “cannot be dis- necessary missed.” It did not find it “to reach position proceeding however, issue,” 28. The FCC’s in this the constitutional since it was * * * simply no clash between Section “simply “[t]here pub- not convinced that petitioners’ expression,” freedom of outweigh imposed.” lic benefits costs FCC brief at is to be contrasted with its Report Order, supra Third note chilling treatment of similar claims of effect at 1113. FCC2d during raised commercial broadcasters its licensees, possible at like their com risk nonrenewal its

Noncommercial license,32 subject regula deciding counterparts, mercial television continue vigorous investigation Watergate renewal proceedings tion and license break-in, be a subject This renders them as well decision would much FCC.29 smaller, pressures riskier more variety to a of sub silentio difficult one financially organization less eyebrow” regulation “raised secure unable Bazelon, Regulation protracted litigation. to bear the content. See FCC costs Press, And difficulty if the networks have in re Telecommunications 1975 Duke pressure sisting government to shift L.J. 215—216. While recent administra their programming emphasis, certainly a small provide ample open examples tions forms 4 * depends significantly station which on CPB pressure, “inhibiting aimed such depend or turn HEW —both of which professed the networks and their concern * * * upon congressional appropriations far achieving with balance [and] —is more vulnerable.33 dampening] putting ‘loy their ardor for type al opposition’ programs,” Memoran vulnerability noncommercial licen- dum from Charles W. Colson to H. R. pressures sees to official is increased Haldeman, September quoted in 399(b), operation tap- for the Cong., 2d S.Rep.No.93 981, 93d Sess. 283— ing requirement serves to ex- — facilitate the pressure more subtle forms eyebrow” ercise regulation. of “raised practice are also well known. The of for Quite simply, mechanism, provides warding complaints viewer listener so, those who would wish to do to review request the broadcaster for a formal systematically the content of response prominent speech programming; based on such review aby statement Commissioner or Execu may existing make use of means for com- official, tive of the issuance notices of in municating displeasure. their quiry, setting and the of a license for a seeking identify chilling to effect hearing “misrepresentations” on all serve as of a our statute ultimate concern is so for communicating pressures means official much government with what officials will to the licensee.30 do, actually but how with reasonable broad- Ability pressures, to resist such and to perceive regulation, casters will and with avoid chill on programming future likelihood will censor to themselves they bring, clearly which would seem relat regulation. avoid pressure official and independ ed to the strength financial passage clearly Mere of a statute which ence of the allowing licensee.31 While the Wash purpose government serves the of ington difficulty, Post may program have little even officials to review content aon S.Rep.No.981, Cong., 29. See 47 §§ U.S.C. 307-309 ed in 93d 2d Sess. Regulation 30. See FCC of the Tele- Bazelon. Press, sure, communications 1975 Duke L.J. 33. To be as a theoretical matter Barnouw, History by 216-217. See also E. A of be foreclosed the First Amendment (1968); United States enacting legislation decreasing from or or con- Robinson, The FCC and the First Amendment: ditioning appropriations purpose is where its to Observation on Years of Radio and Televi- control the content of broadcast Regulation, sion 52 Minn.L.Rev. 67 apart noncommercial stations. But even Scalia, Water, Don’t Go Near the 25 Fed.Com. considerations, separation powers long of so as Ill B.J. any other reasons to such exist action inaction, unlikely or is to succeed licensee Bazelon, supra 31. See attempt challenge Congress note at 238-239. an to in the courts. ultimately prevail, And even if he could main, challenge, thing going mounting 32. “The costs of main is the such a like Post is damnable, responding inquiries partici- problems costs have damnable or out this FCC * * * They pating hearings, one. have a as television station license renewal as well they’re going get involved, independently have to it renewed.” uncertainties exert Taped chilling willingness statement Richard M. Nixon to H. R. effect on the licensee’s Dean, Sept. 15, quot- displeasure. Haldeman and John court official

H17 merely actually does serve as a neutral basis —and does not program-by-program or legitimate affording public access to the purpose means clearly any serve other device,” “housekeeping some form as enough for licensees to —is reason local must it could charac then one ask how public cover and to dilute their affairs fear or terized or as an alternative to considered thing it age. For is one a broadcaster censorship. some form of recordings to retain independently to decide question answer to lies in Senator this quite it is programming; of his another references, repeated in both the Griffin’s by Congress to be that when him told elsewhere,35 to the re quoted colloquy and public issues im programming concerns requirement’s utility ensuring cording recordings he retain portance must public licensees in objectivity strict their them make available Commission broadcasting. To the extent affairs requests them. any individual who recording requirement purpose serves this message conveyed to local broad- But significant effecting a new and dim will be 399(b) is confined to casters in the First Amend inution broadcasters’ itself; it is stated passage the statute ment freedoms in the area of affairs. articulately legisla- clearly and in the most For, 399(b), apart is no from Section there history enactment of the preceding tive licensee —commercial statute, quoted question earlier. As to the to a or noncommercial —adhere standard likely it is for broad- whether reasonable balance in its strict will be casters fear that Section programming; required all that is review employed by government officials to compliance with the fairness doctrine. programs, individual one the content of seemingly “objectivity stricter only need look to Griffin’s remarks Senator 396(g)(1),36re balance” standard of Section important his introduc- that an stimulus to Griffin, applicable ferred to Senator inability legislation tion of his itself, only to the CPB and even there recording program secure programming category to a narrower had important national issue which he dealing with controversial issues. Exten heard was “biased and unbalanced.” What- of this sion enforcement strict standard might have had ever the Senator against all individual noncommercial licen tape, seeking to review this it would cer- respect to all “in sees tainly not a station be unreasonable for importance issue of that had to fear aired discussed,” FCC,37 broadly defined the pressure might protest some form of be questions, would raise constitutional serious forthcoming objected if the to its Senator Supreme particularly light of the Court’s contents, adjust coverage its and to future more fair approval cautious of the limited reflect affairs to the increased Broadcasting ness doctrine in Red Lion Co. risks involved. FCC, 367, 1794, 395 89 23 v. U.S. S.Ct. troubling More are the references still doing yet, 371 without L.Ed.2d And legislative history recording the re- explicitly, 399(b) effective so Section seems quirement government as an alternative to impose on ly to this standard broadcasters censorship “corn[ing] background and as mechanism pay who heed the of the dangerously censorship.” implication close to If For statute. the unmistakable recording history to and its is that if intended of Section Note, Objectivity’’ in Pub- 34. See Part III—B infra. 36. See "Balance and Fair?, Broadcasting: lic Than 61 Va.L. Fairer (1975) (arguing that Rev. 643 the balance Hearings See H.R. 11807 the Sub- on Before 396(g)(1) imposes a standard of and Power of committee on Communications imposed stricter of fairness than that Foreign standard the House Committee Interstate and on doctrine). Commerce, under fairness Cong., 2d 92d Sess. Griffin). (remarks S.Rep.No. of Sen. See also Order, 2, 869, supra Report Cong., note 91st 2d Sess. 37. See FCC2d at cannot, course, We programming by specify affairs noncommer- with by government perceived precise cial licensees is any degree certainty quantity anything functionaries less than scru- produced to be be of chill which is or will balanced, pulously objective and then action is, 399(b). Chilling effect by its may be or fur- against taken licensees nature, establish in very difficult con legislation ther enacted. terms; quantitative crete and absence against direct actions individuals as Recognition of this function of Section subject sertedly to a chill can be viewed as imposition effective new —its proof much as of the success the chill as content standard based turn on the con- of any of evidence of the absence need for why of programming tent clear —makes sure, To be actual concern. where instances recording view a re- Senator Griffin could established, of harassment or where quirement as an “alternative to Govern- past experience regulation with similar why Representative ment censorship” yields concrete evidence a successful require- Van Deerlin could characterize the chill, one, stronger the ease is a and the ment as one dangerously which “comes government justify regula burden on censorship.” close to thereby The chill NAACP v. Ala tion must be heavier. is, placed on First Amendment freedoms bama, 449, 1163, 357 U.S. S.Ct. L.Ed.2d doubt, without most serious dimen- of such absence concrete And sions. the likelihood broadcasters evidence, however, themselves, does not mandate dis will so censor in view of Section hand; rather, the claim 399(b)’s missal of out of special history vulnerability task court to evaluate the likeli of noncommercial licensees to effect, action, any chilling hood of ignored. cannot and to deter is one that be Even justified concluding were there no other basis for mine whether risk involved is light purposes this statute carries it a deterrent served the stat Tucker, supra, See Shelton v. vigorous public effect on ute. program- Talley California, 247; v. ming, alone aspect would us to at S.Ct. lead prop- conclude that the First Amendment U.S. L.Ed.2d 559 erly (1960).38 invoked in this case. In the case instant we think it Talley California, general public, v. there were no disclosure to the Supreme pressure upon L.Ed.2d 559 Court to avoid teacher ties requir- declared unconstitutional ordinance might displease who those control his ing the names and addresses of individuals who professional destiny constant and printed caused handbills be distributed to be heavy.” 364 U.S. at at 251. 81 S.Ct. doing empha- on the In so handbills. the Court no Court cited concrete evidence in the record “important progress sized the role in proposition. or elsewhere for this anony- played by mankind” which has been Moreover, Valeo, Buckley supra note publications, relying examples mous English supra and Red Lion Co. v. early history. American As the upon by respondents arguing note relied pointed quite clearly, dissent out “speculative,” sup- chill that the here is do not proof was introduced that the port their conclusion that no First Amendment plaintiff public would form suffer hostili- recognized burden should be in this case and ty place if forced his name on the handbills. justification no from the for this Government Similarly, Tucker, 479, in Shelton v. 364 U.S. required. Buckley rejected burden the In Court (1960), L.Ed.2d the Court argument parties the that minor should be ex- significant found a rights chill on First Amendment empt requirements from the disclosure relying any specific on without incidents Campaign Federal Election Act because of the supporting in the record its conclusion. Shel- application requirements chill which of these public requiring ton involved a statute all impose. It would found that “the substantial all schoolteachers to list their affiliations in public by interest in disclosure identified the public order to be hired or retained on the legislative history outweighs of this Act the payroll. was rec- While there evidence in the generally alleged.” 424 public harms U.S. at supporting ord the teachers’ fears that emphasized bring at 660. It unpopular S.Ct. should be that the disclosure of affiliations could pressures removal, with it Court held not Amendment for their the Court that the First need rely considered, did not on sole not be a “substan- disclosure as the for otherwise basis government for a constitutional “Even if tial” burden: interest not have been would is by the Commission that vanced 399(b) with it a that Section carries clear who the danger chilling vigorous provide “give[s] taxpayers, serious then, question, stations, The programming. for these support bulk of financial justified. is danger is whether this per- stations’ reviewing the a means In the view the statute formance.” FCC’s by Section Purposes The Served B. imposition thus serves as “reasonable , 399(b) . pub- accountability” expenditure for the in argument heard this panel The which Supplemental lic Memorandum of funds. initially record to the remanded the case Rehearing Banc at FCC En 17. on for consideration of certain Commission oversight of the We doubt that do-not by petitioners’ First questions raised is expenditure of federal funds a substan- first challenges.39 Amendment objective important government tial and purposes, present critical question, most might justify well certain incidental as to the view “what sought Commission’s rights. on First Amendment In restraints ‘important government or substantial inter however, ease, quite it is clear that this recording the by require is est’ furthered objective not one oversight which Section O’Brien, ment,” citing States v. su United logically can be said to further. Commission, the pra. response after legislative purpose that noting “the all, contrary to the asser First of FCC’s clear,”40 entirely suggested statute tion, provide tax the federal dollars do purposes, which must be examined three bulk licensees. noncommercial according to tests. O’Brien’s earlier, year As in fiscal noted percent broadcasting 27.7 of total income Oversight pur- of federal funds. strongly persistently most ad- was derived from federal pose sources.41 O’Brien, by required, States v. 391 U.S. stantial interest” is see United furthered 367, 377, recording requirement? the S.Ct. L.Ed.2d striking Is the rather in balance the im- interest unrelated but the suppression expression? outweighed portant of free United interest served the O'Brien, supra, States dangers [88 U.S. at chill as could then evaluat- 1673]. Assuming S.Ct. ed. statute, validity the Court, Finally, evaluating Lion the in Red implementing there alternatives as to doctrine, whether the fairness as enforced regulations that result in less drastic Amendment, the violated the First con- O’Brien, See, g., burden? e. United States v. argument the sidered enforcement would 1673]; supra, Shel- 391 U.S. at S.Ct. [88 self-censorship lead to broadcasters. The Tucker, ton v. [81 “possibility point” found “at this that the Court 5 L.Ed.2d 231] speculative.” at is at best merely is, itself, S.Ct. 1794. But it did not assert this problem. 40. This a serious Where ground articulated, evi- clearly conclusion on the that concrete legislative no contrary lacking, as is wary concluding dence to the was done the court must be Commission; suppress it the it based instead on here was not enacted to free statute expression fact doctrine, past experience fairness but rather was intended to serve other, broadcasters, powers legitimate purposes. Clearly, if the lat statements of case, might expect pur importantly, ter poses one the Court in Red were the FCC. More Indeed, Supreme be named. Court did that a to First Amend- Lion not hold risk past sug rights justification has in the gested legitimate purposes even to imposed refused consider ment no burden of infring Government; for a upholding statute the fairness rights First Amendment where there emphasized critical First doctrine enacting legislature had evidence application supporting values Amendment Talley considered them well. See nia, v. Califor very protect against opera- doctrine * * * supra S.Ct. 536. note 362 U.S. at censorship “private in a medi- tion put purposes In are, forth the FCC this case open all.” Id. at um not best, tenuously legisla grounded at in the 1808. U.S.App. history, quoted tive at 192 which is questions The were: 39. at---, at D.C. 593 F.2d language supra. In United States v. 1. the of O'Brien, 1673, 20 [88 “important supra. or what sub- L.Ed.2d 672] 41. See note 15 do, own application of the re licensees with their and federal importantly, More par funds, escapes is to the cording requirement scrutiny not tied under Section produced 399(b).44 programs ticular which are with applica federal funds. The threshold for then, practice, any intersection be- 399(b) tion of is that a have Section licensee particular public support pro- tween of funding received either the under facilities gram 399(b) the of application Section grant Broadcasting or the Public result, is little more than coincidental. As August Act after 1973. the one hand On assuming even those who receive fed- funding means from other federal subject eral may require- funds be to strict percent sources —which amounted to 19.8 accountability respect ments of to ex- funding federal for noncommercial penditure funds, of the the fact remains subject not broadcasters 197642—is to 399(b) does not further Section 399(b)’s oversight. On the other Section goals oversight accountability except hand, obligation to record does extend— by Certainly, chance. such coincidental fur- indefinitely, the terms of statute —to objective therance of an impor- —even all licensees who receive at all funding tant satisfy and substantial one—cannot the specified from sources. Thus the licen requirement O’Brien’s regulation that the accepted grant purchase see who equip to actually important statute serve an or sub- ment 1973 and received no other federal government Moreover, stantial interest. funding obliged would be to all record his even we to if were assume that the record- thereafter, programs affairs while ing requirement does further interest in licensee, commercial or noncommerc accountability, 399(b) it is clear that Section ial,43 continually who is federally subsi requires programs, licensees record some apart dized from Sections 390-399 which, wholly unsupported by because fed- subject Communications Act is never funds, subject eral not should be to record- requirement. light purpose. of the stated Such Moreover, once the licensee has come applica- “overinclusiveness” the statute’s within the application threshold tion is inconsistent with O’Brien’sadditional recording requirement, statutory classi- regulations defining

fication what must be recorded is be no more restrictive than essential wholly unrelated to the rationale over- goals further the substantial served. sight expenditure funds. federal rationale, oversight then, fails to likely There absolutely necessary meet O’Brien’s tests —and to validate See- correlation pro- between the content of 399(b) two counts. —on gramming public affairs or not —and fed- — Quite funding. significant programs. eral Preservation clearly, publicly all programs public affairs, funded purpose suggested by deal with second the FCC response nor are all programs publicly to remand is that “such a funded. programming subject temporary Nor does prove archive could useful constitute the bulk non- simply desiring individuals copies obtain broadcasts; preserve commercial most of significant what these programs that sta- funding 42. This providing amount includes such stations Government a benefit sources as the National great- Endowments for the to commercial stations which far Humanities, Department Arts and provides er than benefits it to noncommer- Health, (apart Education and Welfare from the cial stations. Act), Broadcasting Educational Facilities Group the National Science Foundation. subject In 1976 Analysis Projection on of the Task Force accounted for broad- 88.2% Long Range Financing, supra note 15. Corporation cast television stations. for Public and National Center Clearly, noncommercial stations not the Statistics, for Educational Public Television sole beneficiaries of federal of broad- Programming by Category: (Table By providing casting. enforcing exclu- 11.14) (advance 1977). ed. frequencies sive channels and of commercial reference to the asserted in carrying out may have broadcast tions obligations public as trustees.” their one concludes all terest. For unless broadly as defined public programs, affairs whether this Initially, question we must FCC,45 subject broadcast stations important or objective is a “substantial 399(b) “significant” clearly are to Section interest,” required as government then it is deserving preservation, the desira- While we do not doubt O’Brien. bility preserving significant pro broadcasts “insignificant” inevitable that some maintaining open archives or libraries of grams preserved which need not be will that this end we are less certain programs, result which is nonetheless be recorded —a sufficiently substantial should be considered with O’Brien’s at odds important justify restrictions on regulation narrowly be tailored rights. But we need not First Amendment impose meet its ends and substantial appears question, this decide unnecessary to these ends. restraints 399(b) goal this no more furthers Section then, objective, like The second stated oversight and than it did that of federal first, on at least is inconsistent with O’Brien accountability. two counts. First, pro- “significant” it is clear that Enforcing objectivity licensees and balance. grams produced by commercial broadcast- objective suggested by as well as the noncommercial The third and final 399(b), subject and the for- ers to Section is that response the FCC in its to remand than the public mer are no less trustees recording requirement could be a use- “[t]he Second, “sig- clear that equally latter. it is Congressmen or individual mem- ful aid for public affairs programming and nificant” evaluating the extent public bers of the some programming are not coextensive: ed- stations, CPB, are meet- to which as well as programs, entertainment ucational goals 396(g)(1)(a)].” their Section [under and noncom- by both commercial broadcast Plainly, objective fails to meet licensees, may equally or more mercial O’Brien tests. pro- “significant” public than some affairs goal 396(g)(1)(a), “strict Section 399(b)’s recording subject to grams Section objectivity and balance in all adherence to requirement. * * * na programs controversial Thus furthers the stated CPB, ture,” not to the indi applicable only partially evеn then interest —and 399(b), on the oth vidual licensees. Section “signifi- most coincidentally. Many of the hand, to local licensees and er is directed programs by public cant” televi- broadcast dealing with applicable produced sion and radio—-and all of those they are distributed issues whether or not not be by commercial broadcasters' —will are “of a whether or by CPB and Only if a preserved by this statute. While local noncom controversial nature.” by a licensee re- affairs broadcast subject licensees are to the fairness mercial ceiving federal funds under Communi- in their on contro doctrine “significant”— happens cations Act to be issues,46so too are commercial licen versial the stat- however that term is defined —will sees, that Sec and the FCC has concluded again, all. And objective ed be served at necessary is not to enforcement tion oversight objective, with the federal obligation.47 of this is overinclusive statutory requirement n * * * taping news supra. do not think that We 45. See note necessary Media, Accuracy complaints Inc. v. 46. See or other resolve fairness doctrine U.S.App.D.C. F.2d part alleged broadcast- misfeasance on the * * * denied, cert. that our ers. We are satisfied 48 L.Ed.2d 175 present without these rules can be enforced requirements. additional Order, Report supra note 47. See Third at 1114: 64 FCC2d 1122 best, then, IV

At Section serves as an overly evaluating means for restrictive Finally, equal petitioners’ pro we turn to statutory with its man- compliance CPB’s Essentially,. petitioners claim. ar tection required date. local Because licensees are protection gue equal are denied by to record which are not funded 399(b)'s because recording the laws do CPB and which not deal with controver- application requirement is limited in its issues, imposes sial the statute restraints on receiving noncommercial broadcasters fed rights beyond First Amendment those funds, leaving eral commercial broadcasters which are essential fulfillment of stat- they please. free to record or not as While goal. unnecessary ed Such restriction extending did consider the record FCC rights First clearly Amendment is inconsist- ing requirement to commercial broadcast requirements ent with of O’Brien. ers, recently that the it concluded burdens overly aspect This restrictive of Section outweighed any benefits of involved 399(b)’s operation disappears if we required recording impose and declined to objective view the as one of obligation this on commercial broadcaste enforcing compliance local licensees with rs.49 strict standards of in their own respect programming. With equal protection challenges objective, imposes the statute question always the critical “whether unnecessary accept restraints. But if we an appropriate governmental there is inter statute, this as the then it is suitably est furthered differential beyond clear that we moved realm have Department treatment” at issue. Police justi- of incidental restraints which can be 92, 95, Chicago Mosley, v. 408 92 U.S. S.Ct.

fied under the O’Brien tests that of 2286, (1972). 33 L.Ed.2d 212 Where the regulation suppressing aimed free classification drawn a statute is not it speech, justified only by ref- self invidious and where no fundamental erence compelling government to the most affected, rights are is sufficient that the interests. government legitimate interest is and the rationally classification related that int offered purposes where, here, But erest.50 fundamental Government in of Section rights involved, scrutiny ap stricter quite simply satisfy requirements fail to propriate. Thus where noncontent-based established in reach O’Brien. Nor do we distinctions are drawn in a statute affecting if, applying different result instead of Supreme rights, First Amendment tests, gov O’Brien’s stated we balance government Court has held that the inter against ment interest served First est served must be “substantial” and the imposed, Amendment burden as has been statutory “narrowly classification tailored” done in however some recent cases.48 For interest if statute serve is to much the seeks to minimize the re FCC equal protection scrutiny.51 withstand case, straint in this the First Amendment does not permit equal protection us to tolerate even minimal closely This standard is rights legiti burdens on protected where no to the O’Brien First Amendment related truly mate government being tests, interest already applied opinion in this to Sec- served. 399(b). equal pro- tion While our focus in See, g., Spock, Co., 828, Optical v. Greer Williamson e. v. Lee 424 U.S. 348 U.S. 461, (1955); Fergu- Erznoznik v. S.Ct. 47 L.Ed.2d 505 75 S.Ct. 99 L.Ed. 563 City Jacksonville, Skrupa, son v. S.Ct. L.Ed.2d L.Ed.2d Mosley, Department Chicago 51. Police v. Order, Report supra 49. Third note supra note U.S. at FCC2d at 1110-1114. Rhodes, See also Williams 21 L.Ed.2d 24 itself, cannot challenged how substantial scrutiny is on the classifi- tection justify statutory classification cation, questions are the serve the critical asked one is not in fact which is is a when interest whether there substantial same: Moreover, truly by the statute. being furthered interest served were interest in some sense served even this particularly the chal- whether the statute — whole, as a the O’Brien anal by the statute tailored lenged narrowly classification —is it not one which the ysis made clear that is to serve that interest. here, issue between com classification at Clearly, that the record- the FCC’s claim licensees, mercial noncommercial is nar and pre- to ing requirement serves as means rowly to further.52 tailored significant support cannot serve governmental substantial in- Because no if we the statute under these tests: even suggested terest has which the distinc- been one, sig- a substantial consider this interest tion between commercial and noncommer- earlier, is, as programming nificant noted further, narrowly is tailored to cial licensees as stations as well produced by commercial we must that the statute is uncon- conclude subject to by the licensees noncommercial the Fifth stitutional under Amendment. 399(b), equally are trus- and both Section it argued could public. tees of the Nor be Y compliance the is being that interest served spectre government In this the of case fairness; of with standards or hovers, censorship control over and earlier, and again, as both commercial noted broadcasting, but over all broadcast- subject to ex- noncommercial licensees are ing. legislation For if this is constitutional in their actly the fairness standards same public broadcasting, legislation as to similar interest, then, This like that programming. broadcasting standing to all is in the significant programs, preserving tapes of wings. require If the Government can the re- application for provides no basis pervasive most and effective information cording requirement only noncommercial this history country medium in the funds licensees who have received federal broadcasting tapes possible its make under 390-399. Sections inspection, in its own self-in- Indeed, by the only interest advanced the terest medium will trim its sails plausibly might justify this FCC which even the winds. prevailing abide 399(b) serves as distinction is Section reasons For the above stated expendi- oversight means for federal and rules and is unconstitutional this analysis ture of funds. Our federal regulations of the Federal Communications objective in the context the O’Brien it are vacat- implement Commission tests, however, application made clear that ed. recording requirement way is in no ordered. So expenditure tied to of federal funds on the result, inter- programs recorded. As a BAZELON, concurring. Judge, Circuit oversight accountability est served, all, only challenge constitutionality if at coincidence. Cer- Petitioners interest, promulgated 399(b) and rules tainly a no matter of Section governmental required At scheme, would nonetheless record. statutory 52. Under while all receiving record- same time a fi- commercial licensees are free from the licensee federal requirement, support nancial other those all noncommercial licensees sources than 399(b), have, funding specified supra, or a see note after received federal recеiving required as- federal under thereafter commercial broadcaster §§ license, dis- note 43 record. sistance virtue his see The commercial-noncommercial peri- supra, obligation ignores These both time no to record. tinction thus drawn under question pur- provided examples during no that whatever funds were leave od which federal might pose licen- as a be said and the made of these funds statute whole use serve, challenged is not who has not re- the distinction here see. As a result licensee narrowly objectives funding of over- since or one tailored to serve ceived federal accountability. programming, sight who has received against its objectives, thereunder on both intended even FCC First fails Equal grounds. Amendment and Protection satisfy Equal the demands of limited Judge Wright’s opinion persuasive makes Hence, scrutiny. Protection we con- must 399(b) places case that substantial bur- constitutionally clude the statute is a dens on noncommercial broadcasters and impermissible furthering means of presents the risk of direct goals. all ostensible vio- interference content in judgment concur in the Accordingly, I Indeed, lation of the First Amendment. court join in Parts I IV of argument a strong might one Wright’s opinion in the Judge opinions strong well prevail. But however that chal- Judge Wright Judge Robinson to the is, lenge it is even clearer that § extent that reflect these views. guarantee Equal violates the Protection Amendment, the Fifth is and it thus unnec- essary to imposed decide whether the chill III, ROBINSON, W. SPOTTSWOOD Cir- by require this statute sufficient to its Judge, concurring part cuit in and concur- grounds invalidation on First Amendment ring judgment: in the 399(b) only alone. Because “touches § It certainly seem that broad curious upon” fundamental First Amendment free- casters, to display whose mission is their doms, but does so classifications formu- audiences, possible creations to the widest explicitly lated in terms of the of content striving are keep so hard to certain their of speech, we challenged must examine the programs from more becoming viewable regulation to that tai- precisely insure it is litigative than once. This effort extensive

lored legitímate governmental to serve in- then, bespeaks, deep super concern that the course, protection terests. “Of the equal ficially requirement recording innocuous claim closely in this case is intertwined with jeopardize journalistic issue will cherished First Amendment interests . . . As . independence. Petitioners seek to overturn equal cases, however, in protection all under First Amend question ap- crucial whether there is an ment, Judge Wright’s opinion and presents propriate governmental suitably interest persuasive analysis a of the chill that Sec furthered the differential treatment.” 399(b)1 regula the implementing tion and Department Chicago Police of Mosley, tions could forebode for First Amendment Nonetheless, opinions expression. L.Ed.2d As think deci of I our Judge Wright Judge firmly and sion grounded Robinson convinc- is more on the Fifth establish, ingly when is measured pledge equal protection Amendment’s of of (Supp. 1975) (3) entity 1. 47 designated by U.S.C. V states in Each licensee and a part: relevant paragraph (2) licensee under which retains a recording shall, paragraph (1) (2) under or in (a) No noncommercial educational broad- period during recording which is re- such casting may engage editorializing station in quired retained, paragraph under such to may support oppose any politi- candidate for copy recording make a such of available— cal office. (A) upon request, to the Commission (b) (1) Except provided paragraph and each licensee which receives assistance under (B) any person upon payment other August sections 390 to 399 this after title designated entity (as the licensee or recording the case 1973 shall retain an audio of each may be) making program its reasonable cost of its broadcasts in which copy. such importance issue of is discussed. Each (4) prescribe— recording sixty- The Commission shall rule such shall be for retained (A) day period beginning recordings the manner on the which re- date which quired program. kept, licensee such subsection shall be and broadcasts (B) requirements they paragraph (1) the conditions which shall shall under apply persons respect to a be available to mission, other than the Com- licensee’s broadcast program entity designated by of a if an recording giving regard goals eliminating licensee retains an audio due each unnecessary expense minimizing the licensee’s broadcasts of such and effort period prescribed by paragraph administrative burdens. class itself raises But while the affected I join I Accordingly, Parts the laws.2 recording obligation Sec eyebrows, Judge Wright’s opinion and and IV of 399(b) imposes on a differential basis tion court, and elaborate judgment We have investigation.7 calls for closer doing my so. herein reasons related specifically here mandate sense, recording speech. In a di I facially Amend impacts on First rective many greater interests no than do ment draws classifications commonplace regulatory com more other First, it ways. in two among broadcasters expensive similarly mands are only licensees who receive applies to those one, time-consuming obey.8 This how specific assistance from certain financial ever, proportionally expressly varies sources; importantly, ap more federal activity level communicative with the who air those plies broadcasters kind, is not the case with particular Petitioners, who programs.3 public affairs general summoning those such edicts as burdened, among argue do not are the class reports pay taxe broadcasters submit powerless or have politically empha Noncommercial licensees s.9 who historically subjected unequal treatm been size their ent,5 obviously they comprise do not rule, recording bear the brunt of minority.6 Thus “discrete and insular” supplement the resultantly the statute and suspicions simply by the nature are raised operate regulations face could ing on their whose collective neck group around that as disincentive that, even, petitioners type. Beyond con- millstone has fallen. legislated the 641, States, Morgan, sovereign, v. 384 U.S. like the must See also Katzenbach 2. “The federal 1717, jus- 652-653, 1724-1725, govern impartially. concept equal 86 16 L.Ed.2d S.Ct. 828, (1966). is served the Fifth Amend- tice under law 836-837 guarantee process, as as ment’s of due well Equal Protection of the Fourteenth Clause 677, 684, Richardson, v. 411 U.S. 93 5. Frontiero Wong, Hampton v. Sun Amendment.” Mow 1764, 1769, 583, (1973); S.Ct. 36 590 L.Ed.2d 1895, 1903-1904, 88, 100, 48 96 S.Ct. 426 U.S. Independent v. San Antonio School Dist. Rodri- 495, (1976); Weinberger v. L.Ed.2d 506-507 see 28, 1, 1278, 1294, guez, U.S. 411 93 S.Ct. 36 636, n.2, Wiesenfeld, 420 95 S.Ct. U.S. 638 16, (1973). 40 L.Ed.2d 1225, n.2, 514, 1228 43 519 n.2 L.Ed.2d (approaches under two amendments Co., supra Prods. 6. United States v. Carolene “precisely same”); Bolling Sharpe, v. 347 4, n.4, S.Ct. at note 304 at 152-153 58 U.S. 884, 497, 500, 693, 695, 74 U.S. S.Ct. 98 L.Ed. n.4; see, n.4, e. 783-784 82 L.Ed. 1241-1242 (1954) (it 887 is “unthinkable” that Federal Murgia, g., v. Bd. of Retirement Massachusetts responsibility Government would have lesser 2567, 307, 313, 2562, 49 427 U.S. 96 S.Ct. assuring equal protection). than the states 520, Examining (1976); Bd. of L.Ed.2d 525 572, 602, Otero, Eng’rs 96 supra. v. 426 U.S. Flores de note 1 2264, 65, 2281, (1976); 85 S.Ct. 49 L.Ed.2d Gor- 291, 294, Connelie, Foley 435 98 4. See v. U.S. 1889, Lance, 1, 1891, 5, don 403 U.S. 91 S.Ct. v. 1067, 1070, 287, 55 291 L.Ed.2d S.Ct. 273, (1971). 29 L.Ed.2d 276 Co., citing States Prods. 304 United v. Carolene 144, 778, n.4, 58 783-784 U.S. 152-153 S.Ct. See, Elections, g., Harper Virginia e. v. Bd. 1234, n.4, (1938); Math 82 L.Ed. 1241-1242 n.4 663, 1079, 1081-1082, 667, 86 16 383 U.S. S.Ct. n.13, 495, Lucas, ews v. 427 U.S. 506 & 96 S.Ct. 169, Illinois, (1966); L.Ed.2d 172 Griffin v. 351 2755, n.13, 651, 49 661 & 2762-2763 & L.Ed.2d 18-19, 12, 585, 596-591, 76 S.Ct. 100 L.Ed. U.S. 891, 361, (1976); Robison, n.13 Johnson v. 415 U.S. (1956); Skinner v. Oklahoma ex 898-899 n.14, 1160, n.14, 39 375 94 S.Ct. 1169-1170 535, 541, Williamson, 62 316 rel. U.S. 389, (1974). A L.Ed.2d 402-403 n.14 central 1110, 1113, 1655, (1942). 86 L.Ed. 1660 equal protection guarantee impotent capricious politically shield Daily, 436 8. Cf. Zurcher Stanford v. g., majority. E. Kramer Union action v. 1970, 1981-1982, 566-567, 56 L.Ed.2d 98 S.Ct. Dist., Free School 540-542 23 L.Ed.2d Hobson Hansen, (D.D.C. F.Supp. Co., Grosjean Press Compare v. American 1967), Hob aff’d as mod. sub nom. Smuck v. son, U.S.App.D.C. 80 L.Ed. 660 F.2d they impose tend we “was intended ... that should look to what al lege requirement’s pur improper congressional threat of con pose pressure pub trol over the content noncommercial —facilitation broadcasting,” juris In lic noncommercial broadcasters. I think it argument, of their prudentially cite remarks of sounder to avoid whenever Griffin, quoted Judge Wright’s possible Senator it here —a direct search for —as opinion,10 congressional indicative improper legislature pass motives of the willingness quid law, to exact as the recording ing a in implement executive pro quo event, for avoiding govern upon more direct I rely it. censorship. probe mental governmen of that kind overturn exploration tal action when the has gainsaid It cannot be the existing that convincing proof.14 uncovered clear and regulatory provides dangerous framework opportunities Moreover, for abuse.11 But the petitioners’ call contention runs recording peril; adds little more to that proposition it afoul of the sensible it that ben- simply marginally automatically makes easier what could efits no one to invalidate happen in any totally event.12 law every might good Whether do some heightened posed by menace merely ground might on the also be imposes a chill on First Amendment free used do some bad. It must be remem- require dom sufficient litigation invalidation on bered is not an effort ground question enjoin is a I see need to not an instance misuse of Section Though address. Judge Wright’s opinion by petitioners. Rather, feared we persuasive states a case that the section are asked to invalidate on its face the entire -, body -, U.S.App.D.C. ernmental accuracy F.2d should assure the caliber and 10. speech, Op.)). problem (Wright, (Wright J. is that broad C. only guess might casters can what be labeled Bazelon, generally Regulation 11. See FCC “slanted,” and “will thus trim sails to [their] Press, the Telecommunications 1975 Duke L.J. prevailing U.S.App. abide the winds.” -, at (Wright Op.); D.C. 593 F.2d at 1123 tape 12. As ubiq- video recorders become more Bellotti, 765, see First Nat'l v. Bank 435 U.S. uitous, imagine why recording it is hard to this n.21, 1407, n.21, 785 98 S.Ct. 1420 55 L.Ed.2d requirement necessary plot would be at all to a 707, 723 n.21 The natural desire to to rights. deter of exercise First Amendment inevitably to tack the safest course will result fact, require only since the rules an audio governmental in indoctrination for the status tape, anyone inexpensive tape recorder quo, something even the dissents believe Con —or, indeed, anyone who watched the gress to wanted avoid. question or heard about it—would have no 399(b). need the aid of § upon expressions leg- 14. Reliance individual of islative is often unsafe because -, U.S.App.D.C. 13. 192 at 593 F.2d at 1114 legislator motivates one “[w]hat to make a (Wright Op.). opinion presents That a rather speech necessarily about statute is not what convincing through case use of the sources motivates scores of others to enact it . . discovering improper purpose .” that the Su O’Brien, 367, 384, United States v. preme 391 suggested: 88 Court has historical back 1683, 672, ground, S.Ct. 20 sequence L.Ed.2d 684 leading up of events reason, prefer rely action, upon For challenged that I challenged whether the ac types departure represents other of tion prior policy, evidence—such as the from absence substantive legislative of a reasonable fit between the administrative means chosen history. any Village Arlington Heights legitimate v. Metro at end—that least indicate politan Corp., Housing body what the Dev. 429 U.S. 267 aas whole had or -565, making 97 50 did L.Ed.2d not have in mind when its decision. Davis, 229, 253, Washington (1976) Ironically, Judge Wright’s analysis 48 L.Ed.2d is (Stevens, J., concurring) (“[frequently strengthened by dissent, Judge the MacKinnon’s probative objec- indeed, hopes 399(b) most which evidence of intent will be admits — —that actually happened irresponsible, will deter “the tive evidence of broadcast inac- what rather ” describing subjective curate and slanted utterances. . . than . evidence the state of U.S.App.D.C. (Mac- actor[, normally at —593 F.2d at mind the actor f]or is Kinnon, (MacKinnon dissenting opinion Op.)) J. presumed to have intended the natural conse- menacing very Even it were quences deeds”). heart of of his gov- First Amendment to assume that some into ploration whether Section satis apprehensions provision on basis of though course it it Amendment might fies the demands of Fifth sometimes— review might abused. Judicial light never—be be conducted in equal protection must constitutionality govern to assure the concerns. of these somber First Amendment an instrument is not so blunt mental action equal Indeed, arguе protec petitioners upset legislative ordinarily we must scrutiny to assure tion summons careful in advance of or administrative scheme “narrowly requirement is tailored” perversion probability” “reasonable governmental inter to serve a “substantial a real power.15 Normally we can await I tempting,18 The invitation is but est.” it, intercept then threat of the disease and 399(b) cannot withstand believe Section body carefully it from or at least excise equal protection re even more restrained maiming pa politic necessarily without view, and hence I feel no need to measure tient. stringent standard. against more Hence, reject plea to petitioners’ I must subject strictures II That I would re

the First Amendment. Having the class and the in ascertained facially impinging on serve for statutes affected, step terests the next is deter being interests and those First Amendment mine classifications whether “the drawn Yet, likely perverted to do so. light of its statute are reasonable [the] legislation because the burden of quest This is a first purpose.” entailing assigned of the nature of the basis 399(b)’s ostensible identification of Section suspicions about its expression, because objectives. legitimate That will be no mean have objective potential use been real here, has feat since indicated might of which serve to de voiced-—either vaguely what ends or mixture ends air willingness to contro ter broadcasters’ recording entirely intended versial cannot shed —one So, ex- First cares.16 serve.20 his Amendment 784-785, Reporters supra at for Freedom of 435 U.S. at Committee note (“the legislature Co., Press at 723 v. American Tel. Tel. L.Ed.2d & App.D.C —,---- n.36, constitutionally disqualified dictating at F.2d subjects persons speak”); (concurring opin 1076-1077 n.36 which about ion). Money Wright, and the Is Politics Constitution: regard, (1976) (“[t]he wheth Speech?, it makes no difference In this L.J. Yale absolutely prohibits governmental action against vigorous er the main First Amend- evil speech simply category restricts a certain scrutiny designed guard is content ment by imposing those who burdens on additional it the based on discrimination —discrimination engage it. v. Postmaster to in Lamont wish message itself”). 1493, 1497, 301, 309, General, 85 S.Ct. 381 see, 398, (1965); g., e. 403-404 impos- 14 L.Ed.2d Whether First itself the Amendment 134-140, 128, Strange, 92 407 U.S. James v. equal of similar- aes of treatment 600, 2031-2034, 2027, 607-610 32 L.Ed.2d S.Ct. ly-situated speakers in- be an academic might (1972) (recoupment deter use of statute quiry, applied ac- for the test to by indigents of appointed accused 134, 144, counsel Karst, generally See tion would be the same. Carter, crime); 92 405 U.S. v. Bullock Principle Equality as in First a Central the 92, (elec 856, (1972) 849, L.Ed.2d 100 31 S.Ct. Amendment, U.Chi.L.Rev. 20 43 “im “closely of because scrutinized” tion fees vote). pact” right on 191, Florida, 184, McLaughlin 85 v. 379 U.S. 283, 288, 222, (1964); see, Mosley, Dep’t Chicago 13 L.Ed.2d 228 v. 408 U.S. S.Ct. 17. Police of 101-102, 2286, 2293-2294, Lucas, 4, 92, supra g., 33 92 S.Ct. e. Mathews v. note 427 U.S. n.14, 212, n.6, n.14, at 99 92 L.Ed.2d 220 see id. 49 at 508 96 S.Ct. 2763-2764 n.6, n.6, (“appellees, at 2292 33 L.Ed.2d at 219-220 662-663 n.14 in order to L.Ed.2d at 536, Louisiana, quoting case, rely v. 379 U.S. ultimately upon Cox the their must make n.14, n.14, 471, 85 S.Ct. L.Ed.2d legislative product ade- asserted failure of the (1965) (content-based “points distinction n.14 aim”). purported legitimate quately to fit the beyond up the fact the statute reaches that at---, regulation U.S.App.D.C. ex- F.2d at to restrictions on mere traffic 20. 192 Bellotti, Op.). pression”); (Wright First Nat’l Bank accord 1118-1119 legislators,24 history 399(b) particularly when legislative Section is confronted Judge Wright observes, danger the a fundamen sparse possibility indeed. As 399(b) tal Even legislative interest. when Section during some de statements relationship these analyzed suppos to all an undifferentiated intent point bates however, goals,25 emerges ed it censor,21 as an odd but that is not all that surfaces at producing any of the that mechanism for results times. There are also hints give for which some would it credit. recording ‍‌​​‌‌‌​‌‌​​​​​​​​‌​‌​​‌‌‌‌​‌​‌​​​‌​​‌‌​‌‌​​​‌​​‌‍objectivi meant was serve ty balance directive Section Significant Program- Preservation of A. 396(g)(1)(A)22 editorializing or the ban on ming 399(a).23 The Section Commission as re spondent as amicus cu and Senator Griffin If then purpose,26 be Section suggest riae that was direct Section grossly indisputably underin preservation ed additionally sig toward who clusive. Noncommerсial licensees have oversight nificant of feder not accepted federal or who funds broad expenditures. al No reference these lat cast no program little or ter legislative history, two are seen ming as all well commercial licensees— —as aims rely upon ap many courts cannot that undeniably “significant” presentat air parently any legislative never crossed the minds of the ions.27 Absent or adminis- 24. See Califano v. 25. No one 23. See note 1 22. See notes 46-47 infra. election”); year’s district) (“[i]t is but a hard freeze and its Television Act of 1967: feelings well Keith, speaking against”); Sess. 641 (“[t]here Opinion Leventhal, & S. 1160 Before the House state and 47. This reticence is due kind of film is the kind of must son) (incumbents tainty stand constitutional sentative program] fected might replete cilitate (1970). Curiously, however, § taping requirement as a 399(a)’s prohibition Id. recording requirement original proposal relationship. guard against”); . at---, suggest that it over whether my oversight 399(b)’s physical because (1977) (plurality opinion). . are some of us who have McClure) could . Foreign Commerce, 113 candidacy argues . crusade for troubling 1021, 1030-1032, supra. Cong.Rec. conceivable of a 26391 id. at S. Goldfarb, would be that we should scrutiny, (Representative Springer) (public was intended . J. program in 1970 statements. E. for 399(a) id. have been editorialized 399(a). of editorial statements. (Leventhal Op.) Hearings . have F.2d at 1111-1113. 26399 (Representative my opponent legislative history re-election”; location 91st means no television “sitting could Comm, expressly doubt 90th televised in his (Representative 51 L.Ed.2d one Cong., designed (1967) (Repre- it is adversely on H.R. 6746 . very strong argues uphold itself with- Dissenting Cong., not a chill . to uncer- g., on Inter- that, duck[s]” 2d that we the Act enforce in next “might at note . “[t]his Public stated to fa- Sess. Jeol- 212- [the 1st af- 26. 27. The grams?” serves to scription means, inquire, “why preserve any limitation 334-335, memorable. a few broadcast stitutionally. bill thus must be n.30, noncommercial broadcasters who new statute was intended to serve.” United ed federal ment of U.S.Code er v. (emphasis supplied). the House in conference “when it was ex- mercial educational broadcast No.794, plained provision very carefully scrutinized”); and “the resentative coast that a bunch of one States v. “[s]omeone Preservation amazing making”). was limited to management educational 581 F.2d Mitchell, . as an Senate, statute public that the 90th House on such right 100 L.Ed. emerging in the bill it had editorials dispel qualms Cong. Bailey, funding Devine) (“I has an to hear the Cong., is affairs which did not have a similar end, managers), reprinted expression suggested prohibition against itself also overinclusive TV editorializing editorializing & Admin.News of such station.” 988 n.30 given “special providing from the conference are representing 1st Sess. 12 station The debate might understand U.S.App.D.C. ‘hippies’ likely type about thus that would indeed (1978), citing passed, id. out well to be less than might should be one of these at 26389 how are presented by analysis they (1967) (state- station have on the no significance be since acceded to might editorializ- the House opinion running”; fare con- H.R.Rep. noncom- And pocket- there is hardly ^[1967] Stein- (Rep- quite very, west pro- pro- still

1129 extensively most receive federal those who score, I am left to findings on trative is sense, simply money. Consequently, it strains creduli common class re it applies the burdened is to to think that and underinclusive: ty both over- por conclusive decisionally sponsible by federally for public presentations all affairs Thus “significant” programming.28 broadcasters, tion noncommercial subsidized legislative find a I must turn elsewhere to programming is though most of such even 30 explaining the distinction. goal funding; it by federal does unaided programs, apply type other Funding of Federal Oversight B. ex though millions of dollars are federal short, blush, pended presentation.31 related to a At first this end seems for their means, 399(b), expenditures that draws a is a oversight of such as Section while federal receipt has, basis of federal end, distinction on the the Section means laudable funds, analysis is needed before but careful words, Judge Wright’s at most but furthering fiscal approved аs the law can be relationship to it.32 occasionally coincidental expected more be oversight. Surely can deepest at those who drink Objectivity and Balance Assuring C. be trough, expected that which is must but mission comes from Sec purported This of assist governmental provision related Corpo which instructs the 396(g)(1)(A), tion ance; such as the existence a fulcrum Broadcasting (CPB) to ad ration for Public equivalent of a consti aid not the is “objectivity policy here and balance applying levera tutionally-valid reason for oversight funding can of a The rubric of in all . . . controver ge.29 doctrine, the vehicle chosen only when The fairness be invoked sial nature.”33 give assurance designed seems requires all to cover broadcasters is being properly spent, funds conflicting present public issues not the case here. view, En points is similar.34 somewhat however, duty, is this latter forcement of has sensi- recording requirement 399(b), for hardly objective of Section supposed target. with this ble correlation a re has determined Commission 399(b) fall most The burdens Section not needed theref cording requirement those who most often oppressively on moreover, be 399(b), on or.35 programs, not broadcast 1976, year one-fifth of all almost 31. In fiscal is no indication that affected 28. Since there size, funding class, responsible broadcast- proportion for for federal noncommercial program- as the National any greater quantity significant came from sources —such trigger broadcasters, do not ming for the Endowment Arts —that than unaffected commercial - recording requirement. the n.42, See Id. & the under- and overinclusiveness statute (Wright justified ground 593 F.2d at & n.42 that would 1119-1120 cannot be on the Op.). Consequently, significantly administratively difficult to harness for funds alone. closely purpose. underinclusive those means more Op.). 359, at--, (Wright See, Burns, 347, 32. g., Id. v. 593 F.2d at 1122 e. Elrod 547, 2673, 2682-2683, L.Ed.2d 557 96 S.Ct. 618, (1976); Shapiro Thompson, 396(g)(1)(A) v. 33. 47 U.S.C. 629-631, 1322, 1328-1329, 22 L.Ed.2d 89 S.Ct. Verner, 600, Sherbert v. generally 612-613 Comm. National Citizens L.Ed.2d U.S.App.D.C. U.S. v. Randall, (1963); Speiser U.S.App. But see 192 F.2d 518-519, -, (Leventhal dis at 1136 D.C. at senting F.2d opinion (Leventhal Op.)). L.Ed.2d spent Require Only Rulemaking Broad of the funds about one-fourth 35. Petition Program year broadcast fiscal noncommercial cast to Maintain Certain Licensees (1977); supplied Records, 1100, were the Federal Government. 192 ers 1114 64 F.C.C.2d n.15, U.S.App.D.C. U.S.App.D.C. n.47, at---& See 192 &1121 593 F.2d at at--& (Wright Op.). Op.). (Wright & F.2d n.15 n.47 593 at 1130 rationally and much less be

irrationally underinclusive if directed could it related to- apply it does not ward that end since to that end. Assuring compliance

commercial licensees. my dissenting brethren Some of nonethe pertinent with 396(g)(1)(A) Section more accept objective 399(b)’s less that as Section certainly 399(b), to Section does but goal, prohibitive and are able to avoid over- explain not treatment differential it simple expedi inclusiveness therein accords. narrowing statutory language ent of is, policy defining balance goal by match that the means to — with, only fit begin prescription Judge a for CPB the end. Leventhal reads that develop 399(b)(1) phrase, upgrade public its efforts to critical “each licen Section broadcasting.36 see When Section was which receives assistance ... af considered, enactment”, already first ter retaining CPB the date refer [its] funded, copies every ring “any it program” so Con and not to “each gress however, problem agree, knew there was no in check I Judge licensee.”39 objectivi performance.37 Wright adopt CPB’s that we such con cannot ty requirement and balance it Section strictive construction if would do violence 396(g)(1)(A) apply legislative respecting does not terms to indi evident intentions vidual in airing scope noncommercial licensees recording requirement.40 “Of course, their though lawfully done, our duty if it can be —even federally 399(b), funded. on the is to render it Section construe the statute so as to hand, other is not even to imply, self-limited licen constitutional. But does not if grants, sees assisted but encom the text unambiguous, CPB act is anyone passes may purp who at time has received be accomplish rеwritten public broadcasting it, funds As under Act Justice Holmes put once ose.”41 38 from any surely judicial federal source It is curi construing statute the “function ous the objectivity merely begin and balance di academic to with —to read applies rective only English to CPB and not individ intelligently consideration —and recording require all, ual of consequences play, licensees while into if at comes ment, rationally related, which is said to meaning when words used is 42 applies only open Hardly to the individual licensees and to reasonable doubt.” more taping plainly CPB. Thus the have could made wish any way does not seem 399(b)(1) linked to an known when it said that balance, promote objectivity effort “each licensee which receives assistance” 396(g)(1)(A) Gottlieb, 310, 36. See 47 U.S.C. § see Commissioner 265 U.S. v. 313, 528, 529, 1031, 44 S.Ct. 68 L.Ed. 1033 S.Rep.No.869, Cong., 37. See 91st 2d Sess. 8 (1924) (“if plain words of the statute are (1970), reprinted Cong. in [1970] U.S.Code & conclusion, against leaving such room for 3954, pp. Admin.News 3960. construction, have no courts choice but to it, regard consequences”); follow without supra; -U.S.App.D.C. at---, 38. 1 See note 140, 149, Ewing, United States v. 184 U.S. 22 (Wright Op.). at 593 F.2d 1120 483, 480, 471, (1902) (courts S.Ct. 46 L.Ed. adopt a construction that “violates the supra; -, U.S.App.D.C. Note clear directions of law” even to avoid (Leventhal Op.). 593 F.2d at 1148 “great injustice”; cannot for that reason “we alter its terms . . thus ourselves -, (Wright Op.); Id. at 593 F.2d at 1125 construing law”); Jay enact instead of v. Yamataya (The Japanese Immigrant v. Fisher 345, 357, Boyd, 351 U.S. 76 S.Ct. Case), 86, 101, 23 611, 614-615, 47 189 U.S. S.Ct. (1956) (“we adopt L.Ed. must L.Ed. statute, plain meaning of a however severe the consequences”). (The Employ- 41. Howard v. Illinois Cent. R. R. Liability Cases), ers’ (1908); accord, States, 146,. 52 L.Ed. Northern Secs. Co. United Harris, 629, 642, 436, 468, United States v. 48 L.Ed. 601, 611-612, opinion). (dissenting 27 L.Ed.

1131 notes, Judge Wright As contrary. for its taping requirement abide the shall is irreconcil construction Judge Leventhal’s programs.43 public with Section particulars in three able phrase question statutory if the Even contemporaneous ad And a 396(g)(1)(A).44 not ac ambiguous, I could were somewhat Commis construction —the ministrative as a reasonable reading suggested cept the we are sion’s, rulemaking proceeding meaning. That in intended of its version diametrically opposed to reviewing now —is has not occurred to apparently terpretation yet interpretation Judge Leventhal’s litiga lawyers in this the numerous any of by single legislator.45 objected to was not of those tion, the Commission or to ambiguous state , Referring admittedly regarding the to it presentations made who Congress Members of rule, in his ments two or to Griffin taping Senator —which purpose” but do not one importantly, strong in at most More amicus brief. ] “revealf others,47 speak directly and do not design are all to exclude congressional dications 43. See 46. 192 45. See . enthal’s properly 504, 294-295 L.Ed.2d given ry, more can be The use of the statute”). 593 F.2d at 1150 ed and L.Ed.2d which received assistance under commercial considered cording requirement went well tence that dio 94-95, broadcast fact that the there seen as the guage CPB Public show to 1265, result of Swift & (Leventhal Op.). States, ference ther ^[1970] Wilder, Wright Op. id., U.S. recordings 89 L.Ed. probative already 424, 433-434, “involving at---, used in the Act . .” U.S.Code Espinoza 94 S.Ct. George U.S.App.D.C. at 353 U.S. then, Report, 51 U.S. (1973); Griggs 918, practice, congressional all (1850) (same). Co., limiting 373, 379, narrows the my involving S.Rep.No.869, (1933); portions gleaned. had report educational indicating satisfaction that information is found at note 165-166 Moore Ice Cream Co. past proposal which states that the 1970 bill 334, 339-340, (MacKinnon Cong. issues of (10 373, 379, copies only ... construction stated in the (1957) (coherence must be Farah These two statements 53 S.Ct. issues of Act to modifies How.) tense When the statute 593 F.2d at relevant Senate was not in misdraftsmanship. 4; plain & Admin.News at 3960. v. Duke Power of all -, U.S.App.D.C. Mfg. see Achilli v. United supra broadcast “received,” keep 477, 496, statute); Gayler 620, 622, meaning Op.) programs it fund- 593 F.2d at 1143 Report “programs” only Co., legislative histo- 38 L.Ed.2d the broad beyond very 1141-1143, note Title II of the “require . Skidmore v. proposed importance,” (“Judge 854-855, . 995, 998, importance in the . noted that next sen- . 77 L.Ed. was first 13 L.Ed. wise the v. Co., stations and the at codify- . Rose, [the] Con- non- Lev- -, Fur- lan- im- but au- re- v broader: plication Federal cations Act of 1934.” Rep.) the House of House [the see id. at News, recordkeeping provisions in the Senate applicable Code the Subcomm. on Communications Although with § to local needs” and as the fact emanates from a statement sponsor ing noncommercial broadcasters “more broad construction demanded quirement Hearings ment of § cus tives, test contemplation means chosen to be broader of the House Commerce, The Least guage. If statément aim Perhaps that is the Congress”). Judge subject two of the section’s requirement] supra Financing recording rejected partly contend —or even less approved by 91st such as Cong. respondents at 3964 grants 399(a)’s prohibition of that other §of §of “Questions Leventhal’s managers), reprinted in 4, the Senator also lessens the at note to all broadcast even Cong., agree 396(g)(1)(A) was the one and Dangerous 92d case, ^[1970] & 399(b), 399(b). H.R.11807, Comm, under title III of the Communi- for Public (“the managers Cong., Admin.News, more 2d Sess. 3 should be limited that dissent. Cf. A. then hearings 10— broadcast feared purposes, and Senator Griffin U.S.Code were because of in 1972 dissenting opinion ignores might on Interstate legislation telling legislative H.R.Rep.No.1466, 2d Sess. possibility that enforce- might Branch monitoring compliance 7443 & 12808 objectives also raised as to Broadcasting stations, in the next session mentioned the re- have caused the Judge Wright, (1970) (statement stations hearings identify- also have been in such as should be even legitimate Cong. & Admin. balance, pp. than Senator 242-243 on the similar did intend the editorializing. 3963, 3964; feeling ^[1970] and Power responsive any single should be plain lan- receiving those for [its] —1972: bill, Foreign making as ami- part Griffin, history id., Bickel, before (Conf. objec- why U.S. that but ap- see his 1132 statute, concluding Judge argument of the scope the Lev — provisions the main rea “belied the enthal’s dissent concedes ... judicial statute, draftsmanship propos

son for the it which are both under- over-in 51 Moreover, es is an effort to avoid constitutional susc clusive.” if a can statute be eptibility.48 surely may But court plain language “a not the face constricted in intent, legislative congressional why exercise to save the and clear functions should law from with constitutional expand conflict limita courts refuse to a statute to elimi 49 52 tion.” And if always undercoverage? Though statutes must nate indubitably scope by permis declaring narrowed to the tolerated we must to avoid a statute strive goals, every judicial infirm, sible legis decision overturn it less an is no invasion grounds a law on province overinclusiveness of lature’s undertake rewrite a persons similarly law wrongly not situated was with one’s view of accordance Just ago, Supreme proper objective though decided.50 months the in the field. And rejected proffered objective Congress Court we may for a feel that what did is t that, , Judge programs. Leventhal admits at least in the CPB-funded Id. a 593 F.2d analytical required (Leventhal framework Op.); seen as in this at 1138-1139 see Network case, Project Corporation the court’s task does not extend to a v. Pub. Broadcast objectives search for “not ing, 70, 82, 963, that have surfaced in U.S.App.D.C. 183 561 F.2d deliberations,” congressional at---, U.S.App.D.C. 192 denied, 1068, 975 cert. U.S. 434 Op.) (Leventhal 1247, F.2d at we (1978). 593 1146 55 L.Ed.2d 770 It 98 S.Ct. ground reading are on even weaker the stat- funding very that allows is that mechanism of express ute to its reflect terms pressure brought to bear on official to be actually indicate was not spurred the one that propagandize par to reflect broadcasters legislature the to action. As I noted viewpoints. political To avoid that ticular earlier, supra, generally see note 14 think I it Congress examining pressure, again is once regard safer to base a conclusion to the funding guarantee other means that would legislature’s real ends on the means it select- 3, Broadcasting, July independence. more indirectly reliably ed—which but more 1978, at 32. majority indicate what moved a of the decision- at-, U.S.App.D.C. F.2d at 48. 192 593 1146 opposed speculations makers —as on wheth- — , (Leventhal Op.); F.2d see id. at 593 at legislators acсurately portrayed er two a con- (“the 1145 literal terms of requirement do not limit body sensus of whole in their oral com- taping Lucas, the subject which are ments bill. on the See Mathews v. su- 396(g)(1)(A)”). pra 4, 14, to the standards of § note 427 U.S. at n. 508 96 S.Ct. at 14, n. 49 L.Ed.2d at 662-663 n. 14 (“[w]e agree Eng Trinidad, Cong bound to Yu v. description legislative 623, 619, 1059, [Government’s] 46 S.Ct. 70 L.Ed. 1067 design legislative history if the and structure of g., Weinberger Wiesenfeld, provisions ”) (emphasis supra 50. E. v. themselves belie note 2; supplied); Wiesenfeld, Blumstein, 330, Weinberger supra v. Dunn v. 405 92 U.S. S.Ct. 2, 648, 1233, 995, note (1972); 420 U.S. at Yeager, 95 S.Ct. 43 31 L.Ed.2d 274 Rinaldi v. purpose suggested 305, L.Ed.2d at 524-525. If 1497, 384 U.S. (1966); 86 S.Ct. 16 L.Ed.2d 577 by Judge really legis- Leventhal lead did to this Carrington Rash, 89, v. U.S. 85 equal protection lation and we invalidate it on S.Ct. 13 L.Ed.2d 675 overinclusiveness, grounds Congress will Bellotti, still supra be free to reenact it in a narrower version. National Bank v. note advantage That outcome would have the U.S. at 98 S.Ct. at 55 L.Ed.2d at 728. Congress enabling directly to face the First implications 52. To do that would undercut decisions invali- Amendment gress action. Con- decide, dating might ground then statutes do not on either constitution- considerations, policy oversight similarly respect against al or include all those situated with particular statutory objective. Reed, g., the editorial decisions involved E. Reed v. U.S.App.D.C. at-, See 192 broadcasts. L.Ed.2d (Leventhal (“[s]ound Op.) F.2d 19; at 1146 (1975); McLaughlin Florida, supra consti- v. note principles tutional fully demand that Doud, care- Morey v. justification consider for a statute Royster L.Ed.2d F. Guano Co. S. interests”). touching on First Amendment Virginia, 253 U S. 64 L.Ed. prob- That course would also avoid another by Judge necessarily lem raised Leventhal’s heavy congressional ap- reliance on use of the propriations process to oversee ap than much more difficult the dissenters absurd, “ignore we or even unwise do.56 parently objectivity and balance meaning plain ordinary language.”53 according to justified, approach, fur Judge Leventhal’s chosen dissents, assuring exigency protection thermore, equal bypasses pressure on against governmental CPB to through a direct confrontation problem only partisan programs espousing fund views.57 congressional power with the issue legitimate governmental fears of Though that control the content communications restrictions on might justify propagandizing an this part financing, issue it has had a safeguard the Government or on CPB to at two clear of on least court has steered of that sort —and there against exertions I do not reach it And while quite a such restrictions in the are few occasions.54 might I it Act58 —it not so think Public my under view of this case,55 2279, ill, provision v. 98 of some financial assistance non- TVA H 437 U.S. 53. 2291, 117, surely does not 57 commercial broadcasters con- L.Ed.2d 133 governmental them instrumentali- vert into Project Corporation for Pub. 54. See Network v. the Voice of ties —such as by America —created 47, U.S.App.D.C. Broadcasting, supra note 183 the Government as the means for com- 975; Media, 82, Accuracy in Inc. at at 561 F.2d munication, which and of it is of course the 188, 196-197, U.S.App.D.C. 521 v. 172 editor. 934, 296-297, denied, 288, F.2d cert. persuaded Judge am not I MacKinnon’s 96 S.Ct. 48 L.Ed.2d 175 argument expression that restrictions on ground the sustainable here on that noncom- Judge light Leventhal’s characteriza- - mercial licensees “hold[] out to my position, U.S.App.D.C. [themselves] at tion of see public acting public -, (Leventhal Op.), as in the interest and at 1149 I 593 F.2d reem- is, purposes (that for not ing commercial function- phasize suggest not that the that I do Govern- impartial motives).” public may prevent 192 use of its funds U.S. ment not seek to at--, (MacKinnon App.D.C. F.2d 1153 programs. 593 at do J on constitutionality Nor reach onesided effect, Op.). theory apparently solely attempt, That is based on of an opposed not purchase specific programs the circumstance that these licensees do as to an only profit, open up and thus stands the now but to certain seek make a effort to forum voices, speech doctrine, perceive discredited see and I no occasion to decide commercial Pharmacy Virginia My major point Virginia v. is that State Bd. of Citi- is the case here. Council, reasonably Inc., recording requirement is not zens 425 96 Consumer goal assuring proper- 346 on its related to the CPB 48 L.Ed.2d head enterprises ly only profit-making have doles out the monies that been entrust- with- and leaves questions propriety protective sphere ed to I raise about the First it. Amend- my goal simply organiza- of that view that A ment. countless number of Judge approach voicing country regularly Leventhal’s does not achieve tions their objective avoiding difficult con- intended views—on the airwaves and otherwise —are , questions. at F.2d id. 593 stitutional See hold out ac- noncommercial and themselves as at 1147. public it. in the interest see Under tors as rationale, Judge MacKinnon’s the Government County Compare Fairfax School Gambino v. any expression by be to censor would able Bd., (4th 1977), aff'g per 157 564 F.2d Cir. perceive groups not that it did itself to be these curiam, (school F.Supp. (E.D.Va.1977) 429 731 in the interest. newspaper, though established funded at -, U.S.App.D.C. F.2d at 1140 57. 192 forum, board, school is a thus school -, at Op.); 593 F.2d (Leventhal id. at see may publication board ban of controversial not Op.). Judge (MacKinnon Leventhal bol aff’d, Fortune, article); v. 476 F.2d Bazaar perception of con of the focus his sters gressional 1973), (5th en banc cert. F.2d Cir. pos highlighting concern denied, 40 L.Ed.2d sibility public funds to fur will use CPB university recog (1974) (because had state philosophy. political id. ther its own magazine generally nized available student Op.). -, (Leventhal at 1149 593 F.2d forum, particular articles it not censor explain not does But even that First unless accordance with otherwise recording on imposition requirements). v. Amendment See also Schiff CPB, especially of on since instead broadcasters (5th 1975); Williams, 519 F.2d Cir. already copies retains CPB Love, Trujillo F.Supp. v. supra. See note 46 funds. Elkins, (D.Colo.1971); F.Supp. Korn v. statutory court); “Congress (D.Md.1970) (three-judge numerous erected district [has] Hammond, safeguards against partisan F.Supp. Network abuses.” Antonelli v. Broadcasting, Project Corporation (D.Mass.1970). Pub. The Federal Government’s affecting advancing argument rules official easily validate the broad influence — decisions. Provisions cal caster’s editorial banning for the other instead side all stop governmental or offi culated to CPB viewpoints hewing save those middle trying to cials themselves influence might only avoid unneces road — private would not combat broadcasters sary censorship noncommercial squarely, the real more but also problem his broadcaster when onesided tru intrusively First less on Amendment ideas, ly simultaneously reflects his own but rights,59 than those order broad promote might policy the First Amendment only approvable programs. casters air “uninhibited, robust, encouraging experience prove Even if should that such open” wide debate issues.62 Pre stop restraints could not all occupation with the mischief feared should attempts to dominate CPB deci funding permitted to obscure the historical “ sions or efforts to influence editorial CPB remedy general fact ‘the of silence decisions, ap ” fairness doctrine —which 63 ly not the way of first amendment.’ plies public perhaps broadcasters 60—and might also the First Amendment itself61 III presentation points assure the of view of Neither a conflicting officially particular proper purpose with those nor coerced. This with the dealing spectre amalgam legitimate provides manner any aims 47, supra U.S.App.D.C. 81, right might require 183 note at 561 F.2d ment presentation to receive information expressly prohibits any at 974. The Act points federal of “issues or of view that agency interfering official adequate or from with CPB or coverage” have not received when licensee, any (1970); 398(2) noncommercial 47 governmental U.S.C. § action is in involved broadcast- t , also---U.S.App.D.C. a 593 see ing). (Leventhal Op.), and “[t]he F.2d at 1137-1138 plain any prevent purpose of is Section 398 Sullivan, 62. New York Times Co. v. 376 U.S. governmental body influencing in a CPB 254, 270, 710, 721, 686, 84 S.Ct. 11 L.Ed.2d 701 governmen manner calculated to turn into a (1964). is entitled to “receive suit- spokesman.” Corpora Project tal Network v. social, еsthetic, political, able access to moral Broadcasting, 47, supra tion for Pub. note 183 experiences,” and other and ideas 82, U.S.App.D.C. at 561 F.2d at 974. Com “may right constitutionally abridged ei- specifically enjoined mission itself is soring any from cen by Congress ther or the Red Lion FCC.” broadcaster, (1970), 47 U.S.C. 326 367, 390, Broadcasting Co. v. 395 U.S. 89 provisions guarantee and various other seek to 1794, 1806-1807, 371, 23 L.Ed.2d public broadcasting possible the “maximum strongly Thus Court indicated political freedom from interfer proper response the dilemma scarce Cong.Rec. (1967) ence or control.” 113 frequencies open push is to all doors (Senator Pasto're); 396(a)(6), see U.S.C. § viewpoints, all but not to close them to one (f)(3) (1970). conspicuous example, “For one “neutral” voice: “It is the First membership board [CPB] than limited to no more preserve Amendment to an uninhibited market- eight out of the authorized fifteen from place ultimately of ideas in which truth will political party,” Project the same Network v. prevail, monopoli- rather than to countenance Corporation Broadcasting, supra for Pub. note market, zation of that it be whether 47, 82, U.S.App.D.C., 974; at 561 F.2d at private Government itself licensee.” Id. 396(a)(6) (1970), see 47 U.S.C. § a fur as protection against governmental ther influence Canby, The First Amendment and the State Service, CPB Public Alstyne, quoting as Editor: 1127 Van pro which are not authorized to broadcast Implications The First Amendment and for grams themselves, may not own or control non Broadcasting, 1123, Public 52 Texas L.Rev. 396(g)(3) commercial stations. 47 U.S.C. § Suppression Warmongering Propaganda Footnotes, the United States: Comments and Tucker, 59. See Shelton v. Contemp.Prob. Law & see 5 L.Ed.2d Whitney California, 357, 375-376, L.Ed. Accuracy Media, FCC, supra Inc. v. note (concurring opinion) (“the remedy fitting U.S.App.D.C. at 521 F.2d at 295. ones”; good “[b]elieving evil counsels is power applied through of reason dis- as Note, 61. See A Constitutional Ramifications of cussion, [the framers the First Amendment] Repeal Doctrine, Fairness 64 Geo.L.J. law”). eschewed silence coerced (1976) (public’s First Amend- disparate treat- been shown tion has for the classification explanation sound broad- to noncommercial 399(b). it metes out Conse ment chosen Section means by federal recording require have been aided statutory casters who quently, in much Accordingly, it must I concur so implementing funding. the rules ment and equal protec espouses this Wright’s opinion Judge to the demands give way strengthened when today pro- view, judgment That conclusion in the tion. 399(b) tends to dis we recall that Section by the court. nounced on issues of expression courage broadcast that extent thus to importance and LEVENTHAL, Judge, with whom Circuit First Amendment disserves “the least TAMM, Judge, concurs: Circuit possible dis achieving ‘the widest goal of challenge presents This case from diverse and information semination of ”64 Act, and to of the Federal Communications ab While the sources.’ antagonistic pursuant to that sec promulgated the rules between connection acceptable of an sence Comm tion the Federal Communications valid Section 399(b) requires any non ission.1 Judge certainly suggests function or radio television commercial educational that the the thesis correct in Wright may be funding to receives federal station that actually intended to mandate taping recordings all make audio end,65 enough for it is unlawful facilitate an public importance any issue of finding is no basis for me that there recordings must be main These discussed.2 reasonably relates to made available at days and sixty tained for permis which the Government objective to them. person requests who cost to justifica- and no rational

sibly aspire,66 can 65. The programming 56 L.Ed.2d see note 63 which will lightened Press v. United Admin.News, the area of that noncommercial fitted to offer envisioned for fairly Cong., See (1967), reprinted democracy U.S.Code casting, our to do so. it cannot fit the chosen particularly indicate that goal 1416, 1424-1425, stantial over- Since the Government and Due means to deavor to purpose tutional “Fairness”: legislative FCC times”). at least S.Rep.No.222, informed as to the legislature 1st Sess. 10 v. National Citizens the statute Process, ends, present Cong. (“[w]ho supra. Consequently, of a lead to a better informed public”); where a court can U.S. partly ability intelligently or underinclusiveness pp. is at the in-depth 716 States, which citizenry noncommercial 775, 795, is seldom if ever 63 Va.L.Rev. 89 L.Ed. & to the court affairs legislature had some other Paradoxically, public ‍‌​​‌‌‌​‌‌​​​​​​​​‌​‌​​‌‌‌‌​‌​‌​​​‌​​‌‌​‌‌​​​‌​​‌‍in mind. can (1967), reprinted (1978), 90th might possibly ^[1967] Notes on broadcasting is Admin.News, included some H.R.Rep.No.572, estimate the value coverage very means to its real undoubtedly that is your Cong., important quoting U.S.Code Comm. poor (“[particularly core of the role Equal readily every legitimate committee kept Perry, broadcasting. fit 1st Sess. so 2096, 2114, may betray Associated serve, for Broad pp. Protection relate the inept in [1967] issues fully unstated, see Cong. uniquely analysis will en- and en Consti- affairs ways feels 90th end, well to a sub- & 66. Cf. 2. 47 U.S.C. § illegitimate purpose. Yale instance, ceptable points funding pose Purpose, that of at 508-509. Report 1. Forthe each licensee der August ing of each of its broadcasts of tained for the in which the date discussed. shall ed graph broadcast such of each program (b)(1) (2) by the means L.J. Hampton sections 390 to program. facilitating Rationality, if one rules Except Order, discourage presentation apply licensee retains an audio of a 1973 shall retain requirements of Each such 399(b)(1), of view on pursuant which the works which receives v. Mow Sun licensee’s issue sixty-day period can program 57 F.C.C.2d period prescribed (1972). provided manipulation realistically backward, See 399 of this respect recording public importance is Equal (2) (Supp. if an broadcasts controversial licensee broadcasts at Note, Legislative Wong, supra In this 399(b), an audio record- entity paragraph assistance un- paragraph Protection, suit beginning any program a licensee’s shall of federal 48 L.Ed.2d title after only pur- recording case, of see V of such designat- includes issues. be re- 1975): unac- para- note for (1) on congressional require- in a petitioners, taping noncommercial educa- interest licensees, licensees, press tional broadcast First and ment do for commercial which predicate Fifth Amendment claims. As a programs broadcast funded under Act. these, Congress they contend that has I. CONGRESSIONAL RESERVATION recordings no valid interest THE OF REVIEW “STRICT OB- OF programs broadcast noncommer- JECTIVITY AND BALANCE” OF stations, particularly cial where record- CPB-FUNDED PROGRAMS ing requirement imposed has been on com- They argue tap- mercial licensees. that the Broadcasting (the The Public Act of 1967 ing requirement is an instrument censor- “Act”) Congress’s reflected commitment ship airing and will chill the issues vital, the development of a nationwide non by noncommercial stations. broadcasting system. It commercial em legislative objectives: major bodied three summary brief our view is this: Under (1) development of more broadcast facil 1967,3 Act Public Con program ities devoted to noncommercial gress production appropriates funds for the ming; (2) the encouragement of education to be broadcast noncommer al high quality; and cultural program cial stations. Every or series of understanding the better programs of a controversial nature is re instructional uses of broadcast media.4 quired stringent to maintain a standard of “strict adherence to and bal objective. This case concerns the second ance.” That is more rigorous standard than objective accomplished The first towas that applicable generally to licensees under by extending improving matching doctrine, provides fairness a loose funds established the Educa of general standard balance in a licensee’s tional Television Facilities Act of 1962.5 require overall and has no however, Congress recognized, the de ment programs. for individual velopment set the facilities stage. high quality programs reserved for itself More oversight were responsibility assuring, primarily through objective also To meet that needed.6 Con reports gress appropriations, Corporation and review of that Public established the for federally programs Broadcasting (CPB). funded conform to the strict objectivity and balance standard. Carnegie 1967 the on Edu Commission legitimate This is govern- and substantial cational Television that recommended Con ment interest. light Construed in of its gress an independent, private, create non context, tap- minimal audio profit corporation to channel federal funds requirement of is permissible public into broadcasting. report, Its Public auxiliary responsibili- of this congressional Action, Program Television: A conclud ty. oversight The abridge not does First ed entity pub that such an was if essential Amendment freedom. lic broadcasting’s expression freedom of apply Act does not to commercial were to coexist with substantial federal stations, but this does not mark an support.7 invalid An independent corporation corresponding buffer, classification. There is no would as an serve institutional insu- 5. Act of 3. 4. reprinted News, (Supp. V not (Supp. 76 Stat. Stat. Act of Nov. S.Rep.No.222, pertinent pp. V 1,May 1975). 1975). as ^[1967] to this case. amended, amended, 90th 1773. U.S.Code Cong., Pub.L. No. Pub.L. No. U.S.C. 1st Sess. U.S.C. third Cong. 87-447, objective §§ 90-129, §§ 390-99 & Admin. (1967), tit. Ill, 7. 6. 33-35 Admin.News, sion, (1967), of Carnegie 396(a) (Supp. H.R.Rep.No.572, policy). Public Television: reprinted Commission pp. 1799, 1806. See 47 U.S.C. V 1975) (Congress’s 90th ^[1967] A Cong., Program Educational U.S.Code 1st Sess. 16 declaration for Action Cong. Televi- & congressional reflects com The Act this inter political stations from the lating local might otherwise broad pressure ference or mitment to the freedom of federal accompany to instructed CPB was casting stations. funding.8 “maxi carry its activities to assure out Carnegie Commis- Congress shared with or from “interference mum freedom” for abuse potential about sion’s concern support of broad- Local sta program in federal inherent control content.”11 on the Public casting. report The House were to remain the “bedrock’ tions Act the Commission’s' echoed ability autonomy and Their broadcasting.12 independent creation of an rationale for the and desires their respond to the needs to nonprofit corporation: enhanced, sup were to be communities pro can the Federal Government How Thus by the creation of CPB. CPB pressed, pay part vide a source funds to programs making assist in available would broadcasting and not cost of educational stations, but the individual stations to product? question final That control the pro to what would continue determine creation of by in the bill is answered be grams would broadcast.13 corpo broadcasting education nonprofit sought ensure that fed Congress also agreed generally ... It was ration. propaganda would create a eral funds Corporation, directed nonprofit that a manipulated by any machine that could be Directors, will none of whom a Board ideological clique. Con political party provide will employees, be Government funding wanted a institution that gress effective insulation the most control or influence over responsive to and Government would remain accountable expenditure people. all the American Thus created funds.9 yet corporation Similarly, Report concluded: Senate independent,14 statutory designed safeguards limited by Fed entity supported independent An management politi responsible ensure required pro provide funds is eral political pressures.10 cal grams free insulation.15 8. The 10. the other reprinted entity need recipients Admin.News, (1967), News, pp. H.R.Rep.No.572, S.Rep.No.222, it “would be most reluctant for a buffer between the Commission reprinted in brought parts in of federal ^[1967] pp. of its 1775. 90th into believed so 90th U.S.Code ^[1967] funding plan being.” Cong., Cong., unless U.S.Code 1st Sess. 4 Cong. government and Id. at 5. strongly in the to recommend 1st Sess. it concluded & Admin. corporate Cong. (1967), & 14. 47 U.S.C. § ways: (1) grants local assistance made available and contracts for the 1799, 1800. Congress expected ^[1967] local stations the creation 90th U.S.Code Cong., to local 396(b) (1970). 1st local stations. stations Cong. more than Sess. contracts local CPB production & stations; in three Admin.News, pp. provide local help H.R.Rep.No. (2) grants reprinted use; principal 11. Section other § mercial educational cast out its activities in ence reprinted News, assure the maximum freedom of Cong., ^[1967] 1799, 1807-1808. 396(g)(1)(D) S.Rep.No.222, systems with or control of activities.” purposes pp. U.S.Code 1st Sess. in 1772, 1778; [1967] U.S.Code ways that and local stations from (1970), 396(g)(1)(D), and 90th Cong. functions and television or authorizes CPB Cong., H.R.Rep.No.572, 90th will most & (1967), reprinted Admin.News, 1st Cong. Sess. 7 the noncom- radio broad- engage content effectively & interfer- Admin. “carry U.S.C. in its pp. or in 15. Board members are 47 U.S.C. not own sions. from the same dent with eight network be used any political party or members § States. 396(g)(3). office. Id. Id. in or the advice may § § § CPB operate any 396(e)(2). 396(c)(1) (1970). 396(c)(2). fifteen Id. interconnection political party. be personnel § employees and consent 396(f)(3). Board members candidate appointed CPB No broadcasting political tests actions may And CPB No more than of the United Id. for election to of the Senate. facility. by No the Presi- and deci- may station, Board may may Id. be [I]f, goes on, keystone as time we As the in the structure that it have occasion to designed, Congress placed in bias, itself a direct feel that a slanting, there is an continuing and relationship by CPB injustice, instantly immediately we and imposing reporting16 on CPB annual and First, something can do about we it. can Congress auditing requirements.17 did not uncomfortable, very give make establish the trust by fund recommended to, very experience unhappy the directors Carnegie The Carnegie Commission.18 Second, corporation. we can shut had urged Commission that CPB be fi down some of their in Ap activities sets, nanced excise tax an on television propriations appro Committee and in the the revenue to be channeled to CPB priating process Congress through a trust fund. The Commission re corporation readily The is much more ac garded Congress’s ordinary budgetary Congress, cessible ... if it procedures appropriations “not as consonant any injustice desired to correct or bias degree with the independence essential might appear.22 which 19 Congress, however, Public Television.” pro The fear of control of perceived process, appropriations and its gramming during was recurrent consider process, necessary role in that to assure by my ation of this bill committee . . . accountability CPB’s to safeguard I believe we were in adding successful against capture by self-serving its group. along amendments with a reason Congressional oversight through appro which' — degree able of vigilance part on the priations process would achieve this end Congress prevent corporation without ongo interference in —will ing programming operations.20 becoming propagan Government da tool.23 emphasis, debates reflected the will a monster if aisle, both Houses and on create we fail both sides of the [W]e keep Congress placed on role our responsibility its from be vis-a-vis problem CPB and the political coming abuse: a monster . . . . Provision If made in the bill . . Congress . constant scrutiny maintains close Congress carries review oversight out function as it the activities of should, I problem think the can be kept corporation and the conduct of the manageable proportions.21 program.24 19. 17. CPB’s accounts are to 16. A (i )(2)(B). be submitted to fice, included in the annual also be audited § sion, (Supp. V transmittal must be submitted 396(1 )(1)(A), Id. at 69. Carnegie detailed and supra note 396(f)(1)(A), independent 1975). Commission Congress. and the audit results are to be Congress. comprehensive annually the General at 68-73. and the audit results are to accountant, report. on Educational Televi- 47 U.S.C. Id. audited Accounting Id. CPB annual President for 396(f)(1)(B), 47 U.S.C. annually § report 396(i) Of- 21. 113 portunity Rep. Anderson). 94th ner noted: “Even with (Supp. congressional ^[1975] available to Corporation Corporation Cong., required funds. This section will V U.S.Code Cong.Rec. 1975). fоr annual testify annually 1st Sess. 13 believes committees. CPB officers and directors to be remains Cong. long-term its activities Senate Congressional proper.” S.Rep.No. Congress & fully (1967) (1975), reprinted before Admin.News, Report Federal provide U.S.C. § accountable for its use of (remarks by appropriate on the review of financing, 396(i) man- Act pp. op- Congress 20. has not been unaware of the ten- (remarks by Cotton). 22. Id. at appropriations sion between annual and free- Senator dom from It control. succeeded in passing long-range financing plan (remarks with the by Rep. Brotzman). 23. Id. at 26394 Financing Public Broadcast Act of Pub.L. 2-4, 94-192, §§ No. 89 Stat. which autho- (remarks Rep. Kuyken- Id. at 26395-96 five-year appropriation rized a for CPB. A new dall). statutory provision was included the Act tel procure, to educational and otherwise authority to di not assume Congress did programs for national or evision or radio pro day-to-day with CPB’s or interfere rect to noncommercial regional distribution Congress con What decisions. gramming stations.27 broadcast ability educational power, was a reserved templated if CPB’s appropriations the level of to alter especial to maintain instructed CPB was statutory strayed from performance overall programs it would for the ly high standards mandates.25 funds. federal obtain programs such Congress expected provides 396(g)(1)(A) the activities Many of autho obtained from specifically high quality, were “of to undertake are to be CPB sources, was the au Prominent . with strict ad rized in the Act.26 . . diverse programs in all objectivity fund educational and balance thority to to herence licensees. Sec noncommercial of a contro programs broadcast series of programs CPB 396(g)(2)(B) empowers specification tion This versial nature.”28 objectivity to and bal “strict adherence grants pro- to with or make to contract (or series individuals, ance,” applicable program to each entities, and gram production funds, federal programs) created with educational noncommercial selected of, than rigorous a more reflects production for the stations broadcast programs programs Congress in all or series of of the balance that the “It is to be admitted nature; appropriate . of a controversial to United States can refuse money program grants, provides type with the In addition to CPB it is dissatisfied because generalized program initiated. to noncommercial licen- that has been of But this idea Congress g., support, of the United that the technical funds for the sees: e. privilege networks; reserving unto itself the States is interconnection establishment of fallacy, pass upon program fellowships; scholarships is a because each and funds for authorizing the community grants. is stated in the law appropriated . [i]t service block unrestricted money there shall be to be “community grants are allo- block Its service” Hearings Before the on S.1160 interference.” among on a formula based cated stations the Sen- on Subcommittee ate Communications population. generally Annual income Commerce, Cong., 1st 90th Committee Corporation Report Broadcast- Public of the (remarks (1967) of Senator Pas- Sess. 125-26 94th H.Doc. No. for Fiscal Year noted, tore). “We don’t Senator Pastore also Cong., Sess. 1st repeat appropriation if we feel this have to objectivity and bal- The “strict adherence to scrutiny subject This is all is a failure. of the only appears in subsection ance” standard (1)(A) .” United States . . . 396(g), hence is a mandate § Id. at 123. programs which to activities as CPB sta- available” to noncommercial are “made publicizing, estab- include 26. These activities broadly include This must be read tions. raising system, lishing an interconnection only part provides instances where CPB funds, research, establishing conducting apply program. But it does funds for the other library. 396(g) § U.S.C. (B) 396(g)(1), paragraphs as such of § programs (C), as such which do involve and but concern Payments sta- could be made to local also general li- noncommercial aid to financing tions to aid in their 396(g)(2)(C)authorizes CPB censees. Section 396(g)(2)(C). costs. Id. general operating grants as as well to make (1)(A) subsection 28. The full text of grants to local stations. authority 396(g), sets which forth U.S.C. congressional instruction that In view of Broadcasting, Corporation for Public carry “most functions so as to out its CPB follows: effectively freedom” of the maximum assure Corpora- (g) Purposes activities of the licensees, supra, see note noncommercial and the dard in the adopted tion; powers under the District Columbia stan- location of the strict adherence Nonprofit Corporation Act. paragraphs charter of the CPB objectives In order to achieve authority, we cannot to define CPB’s subpart, carry purposes out the of this fairly legislative to stretch intent discern a Corporation to— is authorized . control- mandate back-handed standard into a (A) development of edu- facilitate the full The strict ling licensees. all noncommercial broadcasting in cational applies when mandate and balance sources, high quality, from diverse obtained noncommer- available makes CPB cial ed- to noncommercial will be made available governed licensees, licensees are and these sta- ucational television or radio broadcast by doctrine. the fairness other times tions, objectivity and adherence to with strict 1140 grams, yet recognized the fairness doctrine on imposed by they present There is no need to generally.29

licensees ed a great danger political propa bias or in itemize the differences standards. It ganda. objectivi The elevated standards of point suffices here to out ty designed and balance were to forestall 396(g)(1)(A), even after it was liberalized exp § partisan the use of federal funds for permit in the conference committee to ression.33 objectivity and balance to be fully respected Congress’s This court has satisfied a series of instead of reservation to itself of the critical role of program,30 rigorous each individual is more overseeing compliance with the mandate doctrine, requires than the fairness which 396(g)(1)(A). upheld embodied in We § programming that a licensee’s overall FCC’s determination it had no authori presentation result in balanced of contro ty compliance monitor public importance.31 versial issues The Accuracy Media, in Inc. v. 396(g)(1)(A). incorporates fairness doctrine thus a looser FCC, 188, U.S.App.D.C. 172 521 F.2d 288 rough standard overall balance for a denied, cert. (1975), 934, licensee as contrasted with a standard of U.S. 96 S.Ct. 1664, adherence to strict objectivity (1976). and balance And in Net 48 L.Ed.2d 175 (or series). program each Project work Corporation for Public 70, Broadcasting, U.S.App.D.C. 561 F.2d programming Public affairs noncom denied, cert. (1977), 1068, 434 U.S. mercial educational stations was deemed 1247, (1978), 56 L.Ed.2d 770 we refus “uniquely offer in-depth fitted to cov [the] implicit private right ed to find an erage analysis action and lead ato [would] better enlightened public.”32 informed and under the Act because we determined that eager encourage pro- Congress such any judicial did not intend assist- 31. The fairness doctrine looks “to the 29. Code evision, reprinted Cong., App.D.C. News, considered as a gram in a series need not meet modified balance of a station’s L.Ed.2d 175 Sess. 13 Cong. See also cert. Objectivity” than journalist. fairs. grow encompass should be both information and intellectual resources of the nation to edge Contemporary H.R.Rep.No.794 (Conf.Rep.), Accuracy S.Rep.No.222, Public Television Fair?, Cong. denied, & pp. 1st Sess. supra note Carnegie Its Admin.News, [by (1967), reprinted U.S.App.D.C. 61 Va.L.Rev. 643 1772, 1778; understanding historian, & ^[1967] the House Its in Public Admin.News, whole, balance, Media, Affairs 90th 10, reprinted Comm’n on Educational Tel- U.S.Code in addition to at 95-96: see Cong., both facts and programming.” can extend our knowl- pp. must.” amendment], Inc. v. H.R.Rep.No.572, Broadcasting: F.2d but the should call Note, in 1834, interpretation. pp. 1st contemporary Cong. ^[1967] 90th FCC, Sess. “Balance and 425 F.2d 1836: “As so news should series, ^[1967] the test of being Cong., & Admin. each U.S.Code meaning, upon 1800-01. Hale v. general Fairer when daily 90th give pro- af- 1st It 33. A posing viewpoints tivity Along ming H.R.Rep.No.794 (Conf.Rep.), corporated in conference into the final bill. Cong. trol must be Governmental and whelmingly ed the section of title II sion of the Representative MacDonald of the House Inter- Sess. 13 state “[T]he bare Television. show meet the pact they may make on tomorrow. labor day. news, perspective Programs cance of a news item: the mine Supreme passing Cong.Rec. typical present & these same reporting Corporation us in addition to provide strike, Admin.News, (1967), reprinted balance Act, Court responsibilities Foreign should assess the broad statement of 396(g)(1)(A) kept from which Programs organ H.R. the scientific context of for strict balance between of incidents is not sufficient to depth lines, political decision, provisions. They on controversial matters.” at an absolute minimum. must not of one coverage Commerce Committee: pp. pertaining the committee amend- should find contained the they spring, interpretation is the Congress’s purpose interference or con- incidents, we see for Public party the new 90th ^[1967] discovery. of news become over- following or the other. disaster, House Cong., U.S.Code program- were ways tax, the im- day signifi- objec- past ver- op- 1st in-

H41 objectivity als of the “strict and balance” overseeing in adherence anee Judge provision. 396(g)(1)(A). pointed As Robinson §

out, Report referring the House Committee During Senator commit- Griffin: “interested citizens” “antici- to the role of tee’s consideration of the 1970 Public through the pated participation that citizen bill, Broadcasting authorization I offered political process Congress would assist in its quickly op- an amendment which was oversight U.S.App.D.C. function.” posed by many people in Public Televi- at 975. 561 F.2d sion —an amendment which would have provided tapes the careful audio of af-

In these cases we stressed Congress programs fairs designed by framework to balance would be available at the public accountability expense person requesting copy. with maximum free- dom from interferences. provision There is the in the 1967 act Congressional oversight was the means to which states that purposes one of the maintain that balance. While the exact development the act is to facilitate the manner in which would review high-quality programs “with strict adher- performance specified, had not been CPB’s objectivity pro- ence to and balance in all scrutiny it that such was understood grams or series of of a contro- annual through reporting ap- occur versial nature.” processes. propriations You certainly agree part with that act, I would think? REQUIREMENTS AID II. TAPING TO Mr. Gunn: Yes. THE IN ASSURANCE CONGRESS you Mr. Griffin: And don’t want . OF OBJECTIVITY AND “STRICT censorship your pro- Government BALANCE” grams? 399(b) was enacted in 1973 as a No, Mr. Gunn: sir. part little-noted of Public Law 93-84.34 Senator Griffin: But it would seem to prominent law was feature of private me that individuals who are inter- two-year financing ap authorization of a trying ested to assess CPB, propriation legis and most of the way those should have some history financing pro lative focuses on that finding out what was on the air. reports vision. The Senate and House sim agree, sir. yes, Mr. Gunn: I ply taping requirement, described the no statement of its rationale.35 To discern said that his interest Senator Griffin 399(b), Congress’s purpose enacting all the issue arose out of a concern that single colloquy counsel have looked to a requisite lacking balance had been in a na- during hearings single and a Senate tionally program concerning distributed statement House floor. System, Anti-ballistic Missile a controver- sial issue decided the Senate one vote. During hearings, these 1973 Senate Sena He continued: Griffin, sponsor tor Robert of § case,36 and amicus in this tap discussed the Senator Griffin: I had heard about this ing requirement president with the then and thаt it was biased and un- Broadcasting Service, get the Public Hartford I Unfortunately, balanced. did not They agreed it, but, course, apprais- you Gunn. would assist see can’t be watch- 34. Act of 36. Senator Griffin advocated a ment for 87 Stat. 219. In 1970 the Senate Sess. (1973); H.R.Rep.No.93-324, S.Rep.No.93-123, August years before its enactment 93d adopted Cong., Pub.L. No. Griffin’s 93d taping require- 1st Sess. 14-15 Cong., 93-84, 2, in 1973. amend- 1st printed was deleted in conference that the finance News, ment as (Conf.Rep.), hearings pp. legislation, amendment had not been part ^[1970] in either house. 91st Cong., pending U.S.Code but the 2d Sess. 3 after taping requirement Cong. H.R.Rep.No.1466 it was disclosed broadcasting & Admin. subject re- noted, every already as must be met channels all the time. At the ing all the time, transcript series, tape (or for a or a program program part I asked if the is glad pay I to and indicated that would series) a with the as contrasted fairness involved, expense for was but whatever pertaining doctrine’s loose standard no, though I the answer was even was a general programming of a licensee. even Congress, though Member of I in Senator Griffin was interested a means was a of this committee. member about providing program information request Mr. Was that made Gunn: permit content to of the re assessment Broadcasting the Public or was it Service quired objectivity and balance. His further producer program? made of the of the I taping reference a to as trying am to recall. avoiding governmental censorship means of Senator Griffin: I can’t recall either. reasonably was explicated. It is read as event, get any any help. I did not indicating general belief that to a access Frankly, your letter the Wall to Street tapes for Congress would obviate the need only keeps going, you Journal me because any monitoring to institute kind of formal tapes are going to make these available compliance in order oversee with people you that consider have objectivity strict and balance standard proper journal- credentials in research or 396(g)(1)(A).37 § ism. position thrust Senator Griffin’s Now, you policy if believe that is a during hearings essentially the 1973 was my I legislation, substitute for don’t. To to, by, identical and is posi- illuminated his any censorship, avoid kind of Government year. Appearing tion the previous before you make programs should broadcast on House Subcommittee Communica- public over-the-air available to the as is tions, adoption Griffin stated that Senator the case is printed with material that in of a taping requirement “ensure public It is in newspaper. domain greater objectivity and balance.” He con- point. at that I don’t see how broad- tinued: caster can refuse or make difficult to present, At there procedure is no where- find out what has been put the air. public broadcasts of interest can be agree you Mr. I absolutely. Gunn: with both spirit monitored insure that Broadcasting Hearings Public on S. 1090 — and the letter of the law are carried out. Before the Subcommittee on Communica- It is me how inconceivable to these tions of the Senate Committee on Com- provisions Broadcasting Public Act merce, Cong., 93d 1st Sess. 113-114 can any meaning ever have when the dialogue Petitioners contend that this re- public right is denied the to examine veals an censorship. intent of The ex- what is over regu- broadcast change does not view. that There lated air waves broadcasters who are suggestion of advance clearance. with subsidized funds. Senator Griffin’s remarks arose the con- text of statutory mandate CPB fund

programs course, that meet the “strict I objectivity Of am aware fact that requirement. mandate, balance” That Corporation for Public By 399(b) requires recording Assuming arguendo might its terms § there be such any program instance, “of which issue of an it is reasonable importance 396(g)(1)(A) modestly is discussed.” record-keeping requirement write a requires standard, “strict adherence broader than the substantive order programs balance in . of a controver- tо assure all which are “of a scope concep- sial nature.” The of § controversial nature” are recorded. The “issue tually 396(g)(1)(A), than broader that of provision § al- importance” though it is difficult to visualize CPB-funded practical class of delineation of the fact, theory, contrasted likely present applicability issue as to notwithstanding is not “controversial” the dis- 396(g)(1)(A). of “public importance.” cussion of an issue of dangerously close to cen- comes ment —it intent to be reiterated its recently has reason, point I must out pro- sorship. For this public affairs objective and fair in provi- I concerned that as far as am aware that I am also gramming. way “hunting in no question sion in pro- require a station Corporation can government. the Federal Corpo- license” programs to the copies of all vide device, Rather, housekeeping it is a grants which are underwritten ration if ever used. rarely will be anticipate I from the latter. expand- to be procedure (1973). needs But this Cong.Rec. have a rea- the can so that all

ed found the ra- Van Deerlin Plainly, Mr. to review controver- opportunity sonable taping requirement Con- tionale for the programs. sial appropriations for the responsibility gress’s Public Broad- Financing for Hearings on In the absence oversight processes. on Com- casting Before the Subcommittee broad- as to commercial responsibility that the House and Power of casters, produce munications or broadcast who do not Comm, Commerce, Foreign Act, on Van State under the Mr. programs funded 241-243 Cong., tap- 2d application 92d Sess. thought Deerlin that broadcasters requirement to commercial fragment of only other We turn to the free- a threat to editorial might be deemed passage of history attending the legislative that observa- Whatever the merits of dom. Congressman 399(b). the House floor On § tion, statement cannot be Mr. Van Deerlin’s Deerlin stated: Van require- suggesting taping that a read as period serves 2-year authorization over- Congress when has ment is censorial insti- protect notice that we intend that sight responsibility and concern prop- is the expression that tution of free comply special with the funded people, and not the of the American erty objectivity and balance. standard of strict govern- partisan unit of instrument of legis- mean that the ment. This does not history appears legislative relevant When re- must surrender all its lative branch exposition, as it in oral rather than written oversight appro- sponsibilities. The here, imprecision in the formula does some will to assure priations processes continue objective hardly is extra Congress’s tion of being is legislative responsibility However, history fairly that re ordinary. met. facilitate purpose for veals one § —to Congress arid monitoring by addition, proposed section objectivity and strict compliance with the any that station re- legislation stipulates 396(g)(1)(A). make audio balance ceiving assistance from CPB entirely consistent in which That is transcriptions ensuring legitimate interest Congress’s is discussed. public importance issue of funds is of federal expenditure maintained tapes These must be mandates, an in statutory possible public consistent with days, station for and House emphasized in the course, terest Senate no commercial scrutiny. Of Congressmen may look reports.38 require- with this broadcaster is saddled long (1973): fed- Cong., that as as S.Rep.No.117, Your believes Sess. 7 Committee 93d 1st broadcasting, given eral funds are being given long are As as Federal funds obligation their to ensure has the strong- public broadcasting, your Committee obligation proper expenditure. can be This right ly Congress not has the believes pow- oversight fully resort to our satisfied obligation to assure itself but through responsibilities as as well ers and being expended intends. The Commit- as it ample process. Congress appropriations has oversight responsibility, and the own tee’s authority stat- satisfies its necessity appropriation to ensure CPB assures of an annual necessity therefore, utory should, misgiv- of a no mandate without There this. per- two-year crippling ings authorization would annual authorization. that a ignore H.R.Rep.No.324, Cong., Corporation or otherwise 93d 1st Sess. mit disregard statutory mandates. Similarly, report House stated: courage the communication ideas in discharge assistance of citizens in Project oversight function. Network typically formation. This kind of claim CPB, U.S.App.D.C. 561 F.2d regulates con encountered when statute duct, prohibition require whether ment, impact but may have an adverse on LIMITED OF THE III. SCOPE applica expressive analysis freedom. The STATUTE, AND ITS give ble for such intermediate is to cases CONSTITUTIONALITY type scrutiny the rule or statute the peti- we background, With this consider appropriate whenever the First Amend equal protection tioners’ intertwined brought play,” ment is “into but to sustain challenges 399(b). First Amendment to incidental limitations First Amendment long freedoms so as there is a “substantial” said regulation This is can be interest, long and so “abridge” speech it is aimed at because incidental restriction on First information, Amendment suppressing ideas or greater would raise a freedoms than is needed to presumption unconstitut ionality.39 Although taping regulation the that serve interest.41 “time, is not to place limited mere and difficulty No further constitutional circumstance,” expres preclude it does not presented, given even First Amendment ideas; sion of while be it is a pesky, it overtones, by basing challenge the equal on minimal burden. It calls First Amendment protection grounds42 by attacking into as a play considerations matter of anal validity of either or both of the two statuto ysis rather than reason of substantial first, ry classifications—the that commer impact. It is much ado about little subject cial to broadcasters are the Act public licensee to that an complain keeping second, (Public Broadcasting Act); the that tape audio of public what is aired to the at taping requirement applies pro to large is a substantial restraint on freedom grams involving public importance. issues of communication. We live in a world lively journals, mag where and tendentious toAs both sets of constitutional conten- azines routinely deposited tions, and books are in validity grounded of the statute is Office, Copyright subject public to ac expressed governmental in the statutorily cess, a whisper deprivation without maintaining interest “strict adherence to fact, First Amendment freedoms. in objectivity programs balance” in those to declining impose this minimal record- government that are funded and are licensees, requirement keeping on all view, of a controversial nature. In our that relied, in part, public’s FCC on the failure interest, is a substantial and the limits on to examine programs those that had been requirement content that are inherent in a taped 399(b).40 under § objectivity balance are not violative point,

This of First This intermediate case of a claim Amendment freedoms. government that developed further, there rule of such a will establishes compliance nature that with it dis- might validity 396(g)(1)(A). of § Tribe, powers 39. L. American 580- Constitutional Law mean that exceeded its least, (1978). “[0]rdinarily, providing public 85 access to them. expression power has no to restrict because ideas, message, subject-matter, its its or its O’Brien, 41. See United State v. Depart- (quoting Id. at 376-77, content.” Police S.Ct. L.Ed.2d 95-96, Chicago Mosley, ment of Tribe, v. supra L. note at 580-84. (1972)). L.Ed.2d recognize We that there are instances of Require Rulemaking 40. See Petition For To cases with where First Amendment overtones Broadcast Licensees To Maintain Certain Pro- put challenges are successful on constitutional Records, gram Order, Report Third protection F.C. equal Depart- grounds. g.,E. Police C.2d fact Chicago Mosley, ment of looking program tapes is not at the does 33 L.Ed.2d 212 As for “receiving assistance CPB.” taping requirement of to the audio As burden; Griffin, that the an he was concerned 399(b), imposes insubstantial Senator § whеreby tapes interest of as- obtains governmental arrangement it serves the CPB to expanded that will be available suring a record that it underwrites “be with the verify compliance reasonable so can have a that all and no less intrusive requirements; balance pro review controversial opportunity to achieving objective is availa- means of expression purpose grams.” Neither 399(b), proper- ble. The classifications § requirement was suggests taping light of that ly construed in con than aid intended to do more section, directly are narrow and related “strict'objec gressional enforcement interest the substantial imposed tivity balance” 396(g)(1)(A). § programs. CPB-funded confronting the begin analysis by our We application A literal the statute 399(b) do not the literal terms of § fact that private college radio sta also mean that taping requirement limit grant tion that received a broadcast subject to the standards would thereafter be series of local concerts e., programs funded 396(g)(1)(A), i. indefinitely obliged tape all of its apply appears The statute indis- CPB. programming. application Such any program in which an criminately would work a drastic alteration is discussed that public importance issue of of the whole thrust of the Public Broadcast station is broadcast a noncommercial designed pre Act. That Act was any aid under the Public that has received with local stations while clude interference August after 1973. Broadcasting Act assuring adequate control of the mecha nism, CPB, through which federal funds literally, applied If the statute were be channeled into broadcast would mean, example, any for com “impair affect ing. The Act was not to or af mercial licensee who received assistance responsibili existing statutory duty 6, 1973, grant in a August ter the form of Noncommer ty of the station licensee.”45 Secretary of approved by for facilities subject remain to es cial stations were to Health, would be Education and Welfare43 including the fairness ‍‌​​‌‌‌​‌‌​​​​​​​​‌​‌​​‌‌‌‌​‌​‌​​​‌​​‌‌​‌‌​​​‌​​‌‍regulation, tablished require taping forever to the audio bound But stations were to be doctrine.46 ment, Federal though subsequent even burdened, by the Act. strengthened, not This sought assistance was or received. pertinent to this provision from a Apart understanding Mr. Van was not editorializing,47 the concerning station Deerlin, case only Congressman spoke who restrictions on licensee floor, any to Act avoided 399(b) on the and who referred § requirement imposed it as on stations freedom. any 1975). political (Supp. office.” 47 U.S.C. V candidate

43. 47 U.S.C. for § 399(a) 1975). (Supp. this V Some have found § U.S.App.D.C., pp.---of 44. See See, constitutionally suspect. g., provision e. pp. supra (statements 1142-1143 of 593 F.2d Emery, Flaw in the A Is There Constitutional Griffin). Rep. Van Deerlin and Sen. 1967?, Broadcasting 2 Educ. Act of Public (1968). The context of Rev. 17 (Statement Cong.Rec. 45. require us to consider case does Staggers, Congressman House chairman of the 399(a) problems possible constitutional § Broad- the Public committee which considered may Although licensees it raises. commercial Act). casting manager Act and floor editorialize, Editorializing by Licen- Broadcast F.C.C., Media, Accuracy in Inc. v. 46. See sees, (1949), the editorialization F.C.C. U.S.App.D.C. 521 F.2d placed licensees noncommercial restriction on denied, 96 S.Ct. cert. justification for the as a was not advanced 48 L.Ed.2d 175 requirement solely imposition taping on of a of broadcasters. the latter class 399(a) provides: noncommer- 47. Section “No may broadcasting station en- cial educational may oppose gage editorializing support or discern such an interest.50 Nor rely We think it inconceivable that we change would have intended such a radical judicial imagination ques on to answer the approach broadcasting in its with engaged in the tion before us. Courts care legislative out reference in the histor be, scrutiny legislation, ful as we must y.48 It particularly would be difficult conjecture important are not freе to an change emphati reconcile such a with the interest when one has not cally protection voiced concern for the congressional surfaced deliberations.51 vitality enhancement of licensee and inde principles Sound constitutional demand that pendence legislative history found in the of Congress carefully justification consider the Public Law 93-84.49 touching for a statute on First Amendment legislative history reveals interests. Congress’s purpose imposing taping obligated A court is not to invalidate funded CPB: in toto simply because some of its governmen- furtherance of the substantial applications literal constitutionally pro- oversight tal interest of the use of feder- blematic or infirm. We call attention to what, Congress gave al funds. no clue as to principles, several fully no one of any, if substantial interest would be ad- applicable case, to this which taken but imposing taping require- vanced also together fairly point path. our These in- produced ment on that are with- may depart out federal clude the funds. In the doctrine that a court absence guidance Congress, from we are unable meaning from the literal of a statute on Supreme expressed Court itself similar- concluded that benefits to the outweigh would not ly analogous statutory situation where the costs. Petition For Rule- interpretation, plausible light making Require of the statute’s To Broadcast Licensees To express terms, departure entailed a radical Program Records, Maintain Certain Third Re- prior Congressional policy, departure Order, port 64 F.C.C.2d 1100 anywhere that was not discussed in the stat- legislative history. ute’s Tidewater Oil Co. v. cases, this, invoking In like an intermediate States, 151, 157-58, United scrutiny, Supreme level of Court has disal- 34 L.Ed.2d 375 legisla- lowed after-the-fact rationalizations for tive action that were advanced counsel. S.Rep.No.123, 8-11, Cong., 93d 1st Sess. Wiesenfeld, Weinberger (1973); H.R.Rep.No.324, Cong., 93d 1st Sess. 1225, 1233, (1975), 95 S.Ct. 43 L.Ed.2d 514 the 7, See, (1973). 14522, g., Cong.Rec. 9 e. 119 benign, Court stated that “mere recitation of a 14526, 14599, (1973). 25700 compensatory purpose is not an automatic response inquiry panel protects against any inquiry 50. In shield to the of a which of this into important purposes underlying statutory court as to the interests the actual furthered 399(b), possible Wiesenfeld, the Following FCC referred to a interest scheme.” in Court temporary prove in “a Goldfarb, 199, 214-17, archive could [which] Califano v. 430 U.S. 97 simply desiring useful 1021, to individuals to obtain (1977), S.Ct. 51 L.Ed.2d 270 looked to the copies preserve significant programs that legislative history challenged statute to carrying stations have broadcast out purpose” determine for itself what the “actual obligations FCC, their sponse as trustees.” Re- statutory discrimination had been. Find- 24, (Adopted May 1977) to Remand at ing Congress gave that no attention to the argue 14. The FCC does not that this interest objectives by appellants, advanced the Court Furthermore, is substantial. the FCC does not accept objectives justifica- refused to those as explain why Congress would not have had such challenged tions for the statute. We read these regard significant programs an interest with cases to our conclusion that it would licensees, have, along of commercial who scrutiny hypoth- be inconsistent with careful considerations, duty fairness the same as non- very obliged esize the interests we are then present programs commercial licensees to Tribe, 38, supra scrutinize. See L. note at important contemporary issues. suggests 1085-87. Tribe also first “[i]n Handling of Public Issues Under the Fairness cases, Supreme amendment likely is least Court Doctrine and the Public Interest Standards of to take into account inter- (Fairness Report), the Communications Act 48 which, conceivable, though ests ly are not actual- Flc.C.2d 1 quirement ,- The FCC considered a re- counsel, actually advanced or were not that commercial licensees make considered the relevant decision-maker.” transcript tape recording Vdilable a of all Id. at 602. programs, their news and but

H47 excises the breadth inimical tion which not “mean what it does discerning that meaning long does rule that literal interests so there says,”52 the Amendment First to unreasonable when it leads not control per delineates line that is an ascertainable expression of there is no for which results applications.57 missible intent;53 general con the more legislative view, scope proper of § In our interpretation statutory cept subject application consists history may override legislative application 396(g)(1)(A). This con- provisions 54 text; approach meaning of plain Congress’s substantial in- sustains clusion raising interpretations avoiding statutory 55 overseeing compliance with the terest principle problems; constitutional when federal statutory applicable mandates al part of a statute severability, retaining program production. funds are used invalid;56 and the part though another excises the consti- limiting construction narrowed construc- principle permitting Engineers Society and balance standard that the strict of Professional 52. National 679, 687, States, taping justification 435 U.S. 98 S.Ct. re- was the core v. United 1355, quirement. 55 L.Ed.2d 637 judicial Opinions of this court illustrate Trinity See, Holy g., v. Church of the e. limiting statutes to avoid constitutional role 457, 511, States, 12 36 U.S. S.Ct. United 143 Thompson, In States 147 difficulties. United v. Sands, (1892); Sutherland Stat- 226 L.Ed. C. 1, (1971), U.S.App.D.C. 452 F.2d 1333 cert. de (4th Statutory 54.06 utes and Construction 998, 1251, nied, 31 405 U.S. 92 S.Ct. L.Ed.2d 1973). ed. court, opinion by Judge in an 467 Wright, acknowledged departing it was See, g., v. American Truck- e. United States statutory ‘any of from the term —“ criminal 534, 542-544, Assns., 60 S.Ct. 310 U.S. fense committed the District of Colum Sands, 1059, (1940); Suther- 84 L.Ed. 1345 C. literally.” U.S.App.D.C. ”—if 147 at bia’ “read Statutory 48§ Construction land Statutes and 10, limiting scope 452 F.2d at 1342. 1973). (4th ed. provisions the strict bail D.C. Court Overholser, 705, See, g., Lynch 369 U.S. e. v. Act of 1970 to Reform and Procedure Criminal 710-711, 1063, 1067, 8 L.Ed.2d 211 82 S.Ct. having application, violations- of statutes local (1962); (“a interpreted, if statute should legislative ground on the that this furthered way fairly possible, in it from such a as to free Wright applied objective, Judge the doctrine doubts”); Cro insubstantial constitutional interpretation that “would that courts avoid an 285, Benson, 22, 62, 52 76 well v. 285 U.S. doubt” as to constitutional create substantial (1932); L.Ed. 598 United States v. Delaware & 5, 9, ity. U.S.App.D.C. 452 F.2d at See 147 at Co., 366, 407, 527, 29 53 Hudson U.S. 1337, Founding 1341. See Church also (1909); Thompson, L.Ed. 836 United States v. States, U.S.App.D.C. Scientology v. United 1333, 1, 5, U.S.App.D.C. 452 F.2d denied, 409 F.2d cert. denied, (1971), cert. 92 S.Ct. held 90 S.Ct. L.Ed.2d Martin, Doe v. 31 L.Ed.2d Food, although Drug and Cosmetics (D.D.C.1975). F.Supp. Simpson Cf. device, proscribed mislabeled the court Act States, United Scientology’s apply “E- the Act to L.Ed.2d 70 observed, meter,” Judge Wright and literature. U.S.App.D.C. at 1159: 409 F.2d Champlin guiding appears in 56. The doctrine clearly “Were the literature here introduced secular, Refining Corporation v. of Oklaho- Co. Comm’n might 210, 234, 559, 565, under ma, we well conclude that 76 286 U.S. 52 S.Ct. pur existing ‘labeling’ for (1932): it constituted law L.Ed. 1062 However, poses such of the Act. . legislature would Unless it is evident that the readings when im broad are not favored provisions which are not have enacted those areas, constitutionally pinge upon sensitive es power, independently of that which within showing legisla pecially not, dropped absence of a part if the invalid be regulate fully operative these areas.” tive intent to what is left as a law. Precisely language that doctrine and were 134, See, Kennedy, g., 416 U.S. e. Arnett v. Buckley relied on in court, Valeo — both this v. (1974); 158-63, 1633, 40 L.Ed.2d 94 S.Ct. Valeo, Buckley U.S.App.D.C. see v. 380-391, 374, Time, Hill, Inc. v. (1975), and 519 F.2d (1967); Dombrowski 17 L.Ed.2d 456 S.Ct. 108-09, Court, Supreme 424 U.S. 96 S.Ct. Pfister, part (1976) (aff’g and 46 L.Ed.2d 659 Tribe, supra at note L.Ed.2d L. rev’g part). The limitation to CPB-funded 714-16; Note, The Amendment Over- First programs 399(b) operative and in leaves both § Doctrine, 83 Harv.L.Rev. 844 breadth oversight compliance with furtherance of the larly, regard programs with tutionally suspect application taping procured by of the distribution, requirement nonfederally pro regional funded CPB for and national designated entity for which CPB can be as the grams, an there is no application will supply tapes response make and expression congressional purpose public inquiries. congres which is inconsistent with those expressed.58 sional concerns that have been opinion supports Since our the constitu- tionality 399(b) govern- limited, because of the 399(b), § thus does not vio objectivity ment’s interest in the strict rights. petitioners’ late constitutional It di 396(g)(1)(A), mandate of the constitution- govern § rectly narrowly furthers ality of that section must be addressed. oversight mental interest in effective of the expenditure of federal It funds. is not expression support Federal does not of distinguish between invidious to those who itself violate the First Amendment.62 In programs broadcast made available CPB Valeo, 1, 92-93, Buckley v. plain and those who do not. There is a 46 L.Ed.2d 659 Supreme ends, pass nexus between means and and it pointed Court out that provision pro scrutiny. objec es The standards of strict tecting speech free contains no establish tivity and stringent balance are more than clause; ment the Constitution forbids doctrine, the fairness apply to each abridgment censorship speech, not its program programs, or series of rather than enhancement. The legis Court noted that coverage to the station’s as a whole.59 Con lation to First Amendment values gress reasonably could decide on an audio rule, “is exception. not the Our statute recording help in a fair determination of replete books are with providing laws fun questions program’s such difficult as a “ob damental assistance exercise of free jectivity,” we ap cannot fault speech, such as public broadcasting aid to proach to fulfillment of congressional media, and other forms of educational function. U.S.C. 390-399 . . . .” Id. at 93 §§ n.127, 96 at 670. Furthermore, the imposed burden on sta comply 399(b) tions to with negli will be § The content 396(g)(1)(A) standards of § gible, if not de minimis. already CPB re requirements objectivity and balance. quires tapes locally stations to send it These standards were enacted to minimize produced programs it has underwritten.60 the possibility politi- of a provisions 399(b)(2), Under the of § stations cally partisan perspective in federally fund- can designate entity CPB as the programs. make ed Congress has a substantial recordings public.61 available to the avoiding Simi- interest in the use of 60. 59. See note 29 funded tor Griffin. The pears Judge Wright opinion tivity News, reprinted ward of § strict described as D.C., Therefore, S.Rep.No.869, CPB assuring compliance from the and balance pp. p. funding taping requirement 3954, CPB. 1120 of 593 F.2d. The is rooted in the maintenance ^[1970] the relation of “little more statements of its supra. legislative history 91st U.S.Code balance at Cong., p.-of with the strict than coincidental.” 2d Sess. 8 was directed to- Cong. cannot standard, sponsor, very purpose makes clear & Admin. rightly U.S.App. (1970), objec- Sena- ongo- ap- 62. See T. 61. 47 poses Expression 627-633, mental action to Report period gram be an financed acknowledges (analysis by see’s broadcasts retains an audio system “government requirements respect U.S.C. if an prescribed by acceptable of freedom of expression.” Emerson, entity Order, the FCC of the function and designated entity). to a licensee’s broadcast of a supported expression the need for affirmative 399(b)(2) (Supp. promote recording paragraph of such a substitute designated by 57 F.C.C.2d paragraph Id. at 653. System expression, of each of the licen- (1) functioning (1970). Emerson shall not (1).” V of Freedom of independently the licensee 1975): can never although govern- for the apply “The pur- pro- s. government, on the but not on the broad- “political” message.63 funds to endorse danger injection govern “The in the caster. real marketplace of ideas money

ment into the effort of grapple This fails market will be distorted is that the possibility of a Congress to minimize messages but not oth promotion of certain partisan per- governmental politically or Thomson, for Arts v. ers.” Advocates federally programs and spective in funded (1st 1976). require F.2d Cir. avoiding the use of funds message ment of a “neutral” bears no such “political” message. to endorse a Philoso- threat to First Amendment concern phers may nicety cherish the of a conten- government We conclude that the is con even-handed balance is a kind of tion that stitutionally permitted program to finance propaganda. tilted But it borders on the this, production, although and concomitant quixotic that it to assert is not reasonable standards, authority brings neutral to set approach. to take a different Indeed the governmental authority some amount of opposite approach implicit in the fairness the realm of content.64 We into approach doctrine and in the taken not confronted in this case with the Supreme Court in Red Lion might FCC, First Amendment considerations that Co. v. 395 U.S. 89 S.Ct. implicated government pos were the L.Ed.2d 371 And indeed in the ad- monopoly captive programming sess a versary system. simple It is as as the belief may reject programs audience.65 Stations presenting both sides controversial federally that are funded.66 say items is likely to lead to truth. To balance on controversial effort to Congress has made an objective even corollary a reasonable ensuring while government funding takes one’s breath spent propa- that federal funds are not on away. ganda directed at U.S. citizens. This is not constitutionally impermissible. Federally Judge says Congress Robinson that all producers required forego funded are not against needed to do was to take action rights they the exercise of would otherwise government propaganda. influence and enjoy. They express remain free to them- setting up But an institution programs developed selves choose independence, with considerable and was without funds. develop concerned that it would an elitist from within its own

partisanship, fostered markedly independent institution. A CPB Judge concurring opinion Robinson’s con- might develop policies. its own On the taping requirement tends that the does not hand, independent other even an CPB “reasonably any objective [relate] might develop political steering a subtle permissibly which the Government can as- eye appropriations with an manda- - —and pire,” concurring opinion at of 192 tory way coping balance is a reasonable F.2d, U.S.App.D.C., at 1135 of 593 and in problem. with that support develops commentary suggesting government financing that the existence of While the function Congress has reserved justify requirement, examining performance does not even a neutral tel- over- legitimate during appropriation and that fears of evision reviews, sight safeguards. The propagandizing might support restrictions there are 65. The 63. See Lehman v. 64. T. See, e. Emerson, broadcasting applicability g., Columbia 94 S.Ct. supra note City of First media is well established. Broadcasting System v. of Shaker Amendment values at 652. Heights, L.Ed.2d Democratic National News, reprinted in Broadcasting Co. v. 93 S.Ct. S.Rep.No.222, 23 L.Ed.2d 371 pp. ^[1967] 36 L.Ed.2d 772 90th U.S.Code Committee, Cong., 1st Sess. 7 Cong. & Admin. Red Lion though the matter must the rest in domain function is a blunt instru- appropriations of and judgment proved cannot be the can be exercised in terms ment—and logic. abstract of For the theo- as a matter appropriations. This of total dollar inhibits comparable retical risk there and ade- particular “get- Congressmen its use for quate requirement Even response. that is ting programs. Similarly the particular at” upheld in the first instance as limited and bipartisan Congress nature of forestalls purpose, prove in related to a valid the political efforts or coercion of domination encroachment; light experience of be an Also, public television. as cases in this then, event, and in that it must declared established, judicial court have there is no approach of invalid. This the Red Lion enforcement the agency of standards of 392- Broadcasting Co. 396(g)(1)(A). § 23 L.Ed.2d 371 contrast, Judge Wright’s opinion In raises say. present, For the we cannot means, question whether there is facially invalid. statute is constitutionally that he would consider ac- ceptable, Congress implement sys- for MacKINNON, Judge, dissenting: Circuit congressional oversight public tem of join Judge I I II Parts Leven- broadcasting. deny To this to I dissenting opinion, agree thal’s with might prove more doom than boon tо goes. result in Part III so far as it broadcasting. We cannot assume that Con- However, join Judge I not Leventhal’s do gress provide without any funds fur- limiting scope construction of the of section role, meaningful emerges ther if that as a view, 399(b), my which construction in im- judicial requirement. properly plain meaning narrows We are insensitive to the tension be words of I that statute. Because do not funding tween federal broad believe Judge limitation Leventhal’s casting’s freedom expression. There scope necessary statute is suggestions have been of reforms in order it, uphold I would affirm statute independence enhance the promulgated toto, the rule thereto Examining existing broadcasters.67 re jurisdiction protective caveat that the lationship funding between federal and of always the courts is available if the public broadcasting, we not see a do viola statute, oversight ap- function of the as view, tion of the First Amendment. our plied, deny rights. used constitutional authority has to set stan Leventhal, Judge Congress, As stated neutrality dards of for the 1967,1 Broadcasting under the Act of Public through CPB, funds and appropriates production funds for the 399(b), providing a taping requirement broadcast to be noncommercial programs, for those is a non-intrusive and radio television and stations.2 Act also non-discriminatory means monitor com appropriations types authorizes varied pliance with those standards. stations, to such including assistance “chill”

The theoretical risk of a bids us be construction,3 matching grants grants wary, point hypochondria- but for telecommunicative demonstrations and possibility sis. The tape-recording projects,4 and funds for the various under expression will chill actually takings Corporation for Public verges on Broadcasting, independent, nonprofit licensees the minuscule—al- See, Chase, 396(g), (k). Public 2. 47 U.S.C. §§ Problem of Government Infíuence: Towards a Solution, Legislative Mich.J. of 9 U. of L.Re- 3. 47 U.S.C. §§ (1975); Canby, First Amendment form 64 Implications and the Broadcasting, as State Editor: for Public 94-309, 392?, 4. 47 90 Stat. U.S.C. Pub.L. No. Texas L.Rev. 90-129, 1. Act of Nov. No. Pub.L. amended, Stat. 47 U.S.C. 390-99. §§ quirements imposed by recipi statutes on by the Act to assist

corporation established participants appropriated ents of funds educational developing a noncommercial in necessarily be programs in will Government Educational broad broadcasting system.5 adequate it negated.7 I would hold that is part by or in casting, supported in whole Congress, special cogni with justification. given under the Act via assistance federal performed role to be important zance of the required to meet Corporation, public assisting discharge it in the to standard of “strict adherence function, of its reserved for itself over programs in all or series and balance assuming pro sight responsibility of As of a controversial nature.”6 funds or grams produced with federal observes: Judge Leventhal upon relying federal broadcast stations rigorous than that That standard is more conform to operation assistance their for generally under licensees applicable to objectivity and balance standard.8 the strict doctrine, provides which the fairness impose the standard has never right The in a general balance loose standard my legit view this is a questioned. been has programming overall and licensee’s government interest.9 imate and substantial programs. for individual Thus, agree I with the result reached Leventhal, J., dissenting op. at--of respect federally Judge Leventhal with U.S.App.D.C., at 1136 of 593 F.2d. However, I programs. funded would also for this different treatment justification plain apply reach this same result and licen- adequate and perfectly, obvious language that statute to all —one funds operates part see by any licensee “which broadcast receive[d] does not. If this is not ade- and the other 390 to 399 assistance under sections [of great many re- ... quate justification, then Public Act] public establishing that receive funds under the 9. Stations and de- 5. These activities include systems veloping similarly one or more of interconnec- Act are with stations that situated pur- used for the of educa- tion to be tional television or radio ing distribution do not receive such pose The statute’s funds. programs; establish- make that receive is to broadcast stations developing systems or more one responsive public funds more television or radio broadcast noncommercial by making public public members of the their stations; aiding financing in the of the costs of through programming more accessible operation television or radio recording requirement the concomitant stations; establishing maintaining of library materials; temporary establishment of a limited archive. programs and related and archives of 399(b)(5) grants Congress And authorized § publicizing noncommercial education- “to licensee of a noncommercial 396(g). broadcasting. 47 U.S.C. who assistance al broadcast station received part full amount under this 390-99] [§§ 396(g)(1)(A). U.S.C. § permit necessary acquire equipment such McCracken, Irrigation 7. See Ivanhoe District v. (1) paragraph comply of this licensee to with 275, 295, day [sixty of audio record- subsection ings].” (Emphasis retention (1958)(“[B]eyond challenge is the L.Ed.2d added.) regu- Because the impose power of the Federal Government generally substantial bene- lated media receive conditions on the use of federal reasonable government regulation of the air- fits from funds, privileg- property, federal and federal waves, which that broadcast stations follows Smith, n.34, es”); King also, in some do not receive respects, funds S.Ct. (“There 20 L.Ed.2d 1118 public’s it is not business. Yet question is of course no that the Feder- Congress to conclude that the unreasonable for public Government, al ling unless barred some control- greater interest in stations that has prohibition, impose constitutional oper- part their utilize funds for or all of money upon terms and conditions which its pure ation and are held out to the allotments to the States shall be disbursed educational broadcast sta- “noncommercial .”); Romney, see also Silva v. 473 F.2d Thus, Judge agree tions.” I Leventhal (1st 1973). Cir. limiting the reach of section Leventhal, J., Compare dissenting op. at-- legitimate publicly is both funded stations - F.2d, U.S.App.D.C., at 1136 of 593 of 192 substantially related to a valid which concludes that reserved interest. federally oversight responsibility itself the programs only, legiti and that this is a funded government interest. mate and substantial Cong., No. 90th public importance H.R.Rep. which 1st Sess. any issue discussed.” U.S.C. 399(b)(1). reprinted ^[1967] U.S.Code Cong. & Admin.News, pp. (emphasis add- 399(b), history section ed). Judge incisively probed,10 has Leventhal provi purpose the demonstrates that history legislative demonstrates The Act’s monitoring by public sion is to facilitate the Congress to did not intend involve the by compliance, and of Congress by licensees government programming in the de federal programs discussing who broadcast issues did cisions of local stations.12 It not seek to of public with the importance assistance of any prior Congress authorize Yet restraint. funds, federal with objectivity the strict genuinely was concerned that additional and balance of section public broadcasting affairs was needed and 396(g)(1)(A).11 purpose entirely That is public the use of to that funds end Congress’ consistent with interest in ensur with it obligation carried the to insure ing expended funds are federal consist objectivity to “strict adherence and balance ently statutory (Leventhal, with mandates (47 in programs” 396(g)(1)(A)). all U.S.C. - J., dissenting op. U.S.App. at of 192 Thus, by authorizing the “full amount” for F.2d). D.C., is clear And it at 1146 of recording requirement, Congress sought to Congress contemplated the assistance help objectivity to insure and enlist the discharge oversight citizens in the the public’s involvement in furtherance of that function. in the Commit As stated House objective. Report, tee provides The statute access to for such The per- educational stations must be through recording the re promo- mitted to become vehicles for the quirement by “any (47 . cause, person” . . tion of one or political another 399(b)(3)(B)). encourage U.S.C. To party, or It com candidate. is assumed that pliance public therein, the involvement normal checks balances within political system our established a limited archive of will insure that safeguarded be constantly will principle public affairs which would be citizens. interested everyone equal available on an basis.13 11. Chief J., broadcasting.” Wright, the content of noncommercial tion I thal’s Court’s D.C., enthal has L.Ed.2d 672 U.S.App.D.C., agree When legislation, by legislators misreading Congress’ purpose. what fewer of sound constitutional said about it. What motivates dissenting op. Leventhal, J., congressional U.S.App.D.C., different matter when we are statute that thought at 367, 383-89, position, my with his holding the issue is Judge 1141—1146 of decision-making legislature, analyzed was intended “to (1968): sufficient to risk the Court will than at Wright in United States v. interpretation on its at---of is, dissenting op. or 1114 of 593 at guidance a handful of simply under 1141-1146 of 593 F.2d. view, because 593 F.2d. has concluded that sec- legislative face, C. in this circumstance well-settled J., op. look to statements impose as to the F.2d. of it. on the bolstered interpretation the benefit at---of public Judge one Congressmen asked at-of possibility It is control over O’Brien, history, Judge Leventhal, the legislator U.S.App. basis criteria, entirely to void Leven- threat Lev- 13. broadcast stations. ready Admin.News, ed H.R.Rep. Admin.News, chive, per What is needed is a statute application of the statute. station (1967), reprinted U.S.C. simple S.Rep. It is thus situation prior high to make necessarily Leventhal, J., (1967), reprinted period U.S.App.D.C., archive, enact restraint available in full to the §§ for us to eschew No. merely preserves, effort of or such as 396(g)(1)(D), material 399(b) merely preserves channel for a limited impermissible it, a time. what motivates scores of others 90th speech pp. pp. 90th dissenting listening material we have at 1137-1139 of 593 Cong., the stakes are concrete Unlike the ^[1967] preserved only application Cong., ^[1967] about guesswork. for the courts in a as 1st at and/or op. U.S.Code published here case U.S.Code would a a 1st Sess. at 1775, 1778; Sess., at---of newspaper statute is not of the statute. involving period. watching material al- sufficiently at impose Cong. 1807-08; newspa- Cong. for the a limit- F.2d; 17— ar- & & great public’s as the provide prevent- interest This would access to believe, reason to had expenditure the direct correctly incorrectly, either did not satis funds to transmit a slanted unbalanced fy statutory requirement of “strict ad Hence, part. program in whole I do herence to and balance.” should agree giv- that section end, pursuit of that an authoritative record en a narrow that does violence construction necessity of what was an absolute said is plain language. policy decision complaints. adjudication fair It is hard Congress, properly made the deci- object people understand that receipt sion to so condition the thereto. If it broadcast of deters the irre power validly funds is within the of Con- inaccurate, sponsible, slanted utteranc gress appropriations, over and therefore es in contravention of and depart there is no basis for us to from the 396(g)(1)(A) balance section of plain words of the Act. Where per- station funds, public the assistance of so much sonnel public are used in affairs broadcasts the better. valid That is a federally programs, assisted it would be applicable is all “noncommercial a difficult if task impossible to deter- broadcasting (47 educational station[s]” mine the extent of the assistance derived 399(a)), U.S.C. and it matters not that the funds, from federal the statute does federal assistance is furnished the con require that the Commission undertake programs. struction of the or to its station moneys. task of tracing such Judge Wright Chief has concluded that a though uphold Even I would the statute government substantial does not interest written, recognize as I would also that the exist in recording programs public impor- of power statute, conferred like that in produced tance that with federal are funds many others, capable application in its of Judgе the same Leventhal reaches con- being improperly applied charged those except programs clusion where are funded recog- instance, the Government. It with its For administration. if nized that these noncommercial stations the oversight were impose function used to broadcasting programs educational receive impermissible restraint, prior the courts private funds from both it, open as in prevent would be all similar sources, pro- and that are some types cases. Other abuse could well de- Also, private duced with funds. it is true particular mand finding applica- that the government that some funds are used for tion of the invalid. statute was Such con- purposes production pro- other than prohibition duct the clear would also violate grams, acquisition such as or construction of the statute: equipment, etc. When federal funds are Nothing contained sections 390—399 operate used facility, to construct or . shall be deemed ... part, whole or in that facility holds agency, to authorize any department, of- acting itself out in the ficer, employee or the United States to pur- interest and not for commercial direction, supervision, any exercise or poses (that is, functioning impartial control over television educational broad- public motives), use enables funds casting, Corporation any or over the or private sources be released and contractors, grantees its or over or production. directed toward Corporation, charter bylaws or public’s preventing expendi- interest personnel institution, any educational ture funds to thus assist system, school or educational broadcast- indirectly production in the objective just that are not and balanced is system. station or subject unfairly Maintaining some had been treated or inac- a limited archive would also curately by providing benefit stations a convenient con- the station. response charged clusive who to critics 1154 justiciable controversy. itself create any “agency, Thus federal U.S.C.

officer, attempted Party v. Activities employee” who “to Communist Subversive direction, supervision, Board, or con- exercise 367 U.S. Control trol over educational . . . broadcast- Long- International 6 L.Ed.2d ing, or over . . . Boyd, shoremen’s Union U.S. grantees” would be in clear violation of the 98 L.Ed. 650 statute. happens specific it ever that more the event allegations interference with First Awaiting operation the actual of the stat- articulated, rights Amendment “there Leventhal, by Judge ute as recommended enough will be time to reconsider the con- dissenting op. U.S.App.D.C., at-of implications.” stitutional Red Lion Broad- F.2d, at 1150 of 593 and followed in Red FCC, supra, casting v. Lion Co. v.

392-94, S.Ct. at 1808. L.Ed.2d particular cogency has in this case where reasons, foregoing For I conclude injury petitioners claim have entirety, the statute valid its largely speculative. suffered is abstract and given plain reading, should be I Laird, My statement in Tatum v. advisory opinion would not issue an based (D.C. App.D.C. 1971), F.2d Cir. essentially prophecy on a that beneficiaries rev’d, 1, 2318, 408 92 33 U.S. S.Ct. L.Ed.2d government largess necessarily need fear 154 damage has relevance to the pressures would violate the statute and here claimed: the Constitution. Red Lion Broadcast- nothing There is more here than a 392-95, supra, v. 395 U.S. at 89 highly imagi- abstract claim based on an 1794; Newkirk, S.Ct. Preiser v. 422 U.S. nary governmental power fear 395, 401-02, 2330, 45 L.Ed.2d 272 collect information for a valid (1975); Schlesinger v. Reservists Committee will be improper purpose. misused for an War, 208, 218-23, to Stop the 418 94 U.S. might respect Similar fears exist with 2925, (1974); Younger S.Ct. 41 L.Ed.2d 706 any government power. power All is sus- Harris, 37, 41-42, 746, v. 401 91 U.S. S.Ct. misuse, ceptible of but that truism when (1971); 27 Boyle Landry, L.Ed.2d 669 v. 401 coupled with unfounded ‍‌​​‌‌‌​‌‌​​​​​​​​‌​‌​​‌‌‌‌​‌​‌​​​‌​​‌‌​‌‌​​​‌​​‌‍fear alone is not 77, 80-81, U.S. S.Ct. L.Ed.2d 696 judicial sufficient to make out a case for (1971); Zwickler, v. Golden jurisdiction. L.Ed.2d 113 Poe S.Ct. 144 U.S.App.D.C. at 444 F.2d at 961 Ullman, U.S. S.Ct. (MacKinnon, J., rev’d, dissenting), doing majori- L.Ed.2d 989 In so S.Ct. 33 L.Ed.2d 154 As ty clearly any jurisdiction exceed conferred Supreme stated Court in Tatum v. on the I respectfully federal courts. dis- Laird, supra, sent, Judge joins Robb herein. Allegations subjective of a “chill” are not adequate substitute for a claim of

specific present objective harm or a harm; specific

threat of future “the fed- pursuant

eral courts established to Arti-

cle III of the do not render Constitution

advisory opinions.” United Public Work- Mitchell,

ers v. U.S. 91 L.Ed. 754 13-14, at 2325-26. potential impairment mere of a con- right

stitutional under a statute does not

Case Details

Case Name: Community-Service Broadcasting of Mid-America, Inc. v. Federal Communications Commission and United States of America

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 29, 1978

Citation: 593 F.2d 1102

Docket Number: 76-1081

Court Abbreviation: D.C. Cir.