660 F.2d 137 | 5th Cir. | 1981
Lead Opinion
On May 1, 1980, KUHT-TV, a station owned and operated by the University of
After a full trial on the merits, the district court entered an order requiring the station to telecast “Death of a Princess” within thirty days. 514 F.Supp. 670 (S.D. Tex.1980). We stayed that order pending this appeal. No. 81-2011 (Jan. 14, 1981). We now reverse and instruct the district court to dissolve the injunctive relief it granted.
The district court held that KUHT-TV is a “public forum” as that term is used in First Amendment jurisprudence, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,555, 95 S.Ct. 1239,1245, 43 L.Ed.2d 448 (1975), and that therefore it could not deny access to speakers — here, the producers of “Death of a Princess” — who wished to be heard in the public forum, unless its reasons for doing so could withstand the rigorous scrutiny to which “prior restraints” are traditionally subjected. 514 F.Supp. at 689-91. Appellees defend this holding, and they also defend the district court’s order on the ground that KUHT-TV’s decision was based on the political content of the program. Both of these arguments were recently considered and rejected by this court in Muir v. Alabama Educational Television Commission, 656 F.2d 1012, 1020, 1023 (5th Cir: 1981). We are bound by the decision in Muir.
Thus, the judgment of the district court is REVERSED. The district court shall dissolve the injunctive relief and render judgment for appellants.
REVERSED and REMANDED.
Concurrence Opinion
concurring:
I join in the panel’s opinion because I agree that we are bound by Muir v. Alabama Educational Television Commission, 656 F.2d 1012 (5th Cir. 1981). I write separately, however, to express my disagreement with the reasoning of the Muir panel.
The Muir panel has concluded that a government-owned television station is protected by the First Amendment.
By holding that a government broadcaster’s editorial discretion is entitled to the near-absolute constitutional protection recognized in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (striking down statute giving politicians “right of reply” access to newspapers), see Muir, 656 F.2d at 1023, the Muir panel has afforded government broadcasters more protection from private citizens than private broadcasters have from the government. See CBS, Inc. v. FCC, 101 S.Ct. 2813, 2829-30 (1981) (upholding politicians’ statutory right of access to private television networks); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-92, 89 5. Ct. 1794, 1804-08, 23 L.Ed.2d 371 (1969).
I have no quarrel with the Muir panel’s conclusions that a government-owned television station is not a “public forum” and that the public has no “right of access” to such a station.
Thus, the primary question is whether the cancellation “abridg[es] the freedom of speech.” U.S.Const., amend. 1. The First Amendment does not talk primarily in terms of “freedom of speakers,” and Supreme Court jurisprudence over the past twenty years makes it clear that identifying the speaker should not be the primary focus of our inquiry.
I confess the strangeness of the idea that the government may “abridge” freedom of speech when it reverses its decision to send out a message that it could simply have declined to send out in the first place. The idea is, however, established by the precedents of this court. We have held in the past that once the government makes a facility available for a particular speaker, it may not deny the use of the facility to the speaker because it objects to the contents of his message. See Bazaar v. Fortune, 476 F.2d 570, 574 (student literary magazine) (“once a [state] recognizes a[n] . . . activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees”), aff’d as modified en banc, 489 F.2d 225 (5th Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409,40 L.Ed.2d 774 (1974); Brooks v. Auburn University, 412 F.2d 1171 (5th Cir. 1969) (requiring, in a suit by disappointed listeners, a state university to pay an honorarium and travel expenses to a speaker whose invitation was withdrawn by the university president because of what the speaker might say). The Muir panel neither cites nor distinguishes these precedents.
The station and the amici raise the fear that the slightest judicial scrutiny will result in court supervision of their regular programming decisions. I share their concern. But this case is not a challenge to the station’s general pattern of programming or its failure to select any particular program for programming: rather, plaintiffs charge that a program already selected, paid for, and scheduled to be aired by the station’s professional programmer was can-celled by a state official
Freedom of speech concerning public issues “is at the heart of the First Amendment’s protection.”
. See Muir, 656 F.2d at 1020 (“AETC’s refusal to broadcast ‘Death of a Princess’ is itself constitutionally protected”); id. at 1023 (court inquiry into whether program was cancelled on the basis of its political content “is not only undesirable, it is constitutionally prohibited”); id. at 1026.
. There is nothing to the contrary in the Supreme Court’s opinion in CBS. The question in CBS was whether the First Amendment confers on private citizens an affirmative right of access to the facilities of private broadcasters. See 412 U.S. at 97-98, 93 S.Ct. at 2084. While the Court “assum[ed] governmental action” for purposes of its First Amendment analysis, id. at 121, 93 S.Ct. at 2096, its preservation of First Amendment protection for private broadcasters in performing this analysis is not precedent for conferring First Amendment protection on the government. Had the Court “assumed” that the private broadcasters were government for all intents and purposes, then the Court would not have asserted that it was denying the claimed First Amendment right of access because the result would be “an enlargement of Government control over the content of broadcast discussion of public issues.” Id. at 126, 93 S.Ct. at 2098. Had the government already been fully in control, then there could be no
. “[Ajlthough the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald . . ., it affords no such protection to broadcasters . . . . ” FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978) (emphasis added).
. Muir, 656 F.2d at 1016 (quoting CBS, Inc. v. Democratic Nat’I Comm., 412 U.S. at 101, 93 S.Ct. at 2086).
. I have a bit more trouble with the Muir panel’s assertion that “[tjhere is no evidence here that the government of Alabama had anything whatever to do with AETC’s decision [to cancel ‘Death of a Princess’]. In sum, the present record reflects no basis for a fear that the government of Alabama is ‘really operating the electronic press’ . . . . ” 656 F.2d at 1018 (quoting CBS, 412 U.S. at 143, 93 S.Ct. at 2106 (Stewart, J., concurring)) (footnote omitted). The Muir panel backs up this assertion by claiming that “[t]he record does not establish . . . that AETC is an ‘agency’ of [the state].” 656 F.2d at 1018 n.ll. Since the Muir panel cites an Alabama statute providing that “[tjhere is hereby created an agency to be known as the Alabama educational television commission ..." 656 F.2d at 1014 n.l, this latter claim and its relevance to the rule established in Muir is perplexing, to say the least.
. Thus, I think it may have been unnecessary to reach the “public forum” issue in these cases. Since the issue is now settled by Muir, however, I think it appropriate to set out what I believe is the proper basis for the Muir court’s holding on the “public forum” issue.
The Supreme Court has recently rejected the theory, adopted by the court below, see 514 F.Supp. at 685, that because a government facility is “specifically used for the communication of ideas or information,” it is ipso facto a public forum. United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, - U.S. -, 101 S.Ct. 2676, 2685 n.6, 69 L.Ed.2d 517 (1981) (mail boxes). The district court should have paid closer attention to the test established by this court for determining whether a public facility is a “public forum”:
“does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance.”
Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016, 1019 (5th Cir. 1972) (quoting Wolin v. Port of New York Auth., 392 F.2d 83, 89 (2d Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968)) (emphasis added). In the cases in which “public forum” treatment has been afforded, the speakers were attempting to use the public facility in a manner fully consistent with “the pattern of usual activity” and “the general invitation extended.” See, e. g„ Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.) (streets and parks); Southeast-
. In First Nat'I Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.ct. 1407, 55 L.Ed.2d 707 (1978), the Supreme Court struck down a law restricting corporate contributions and expenditures for the purpose of advocating any political position. In so doing, the Court found it completely unnecessary to decide whether corporations are speakers who “have” First Amendment rights. “Instead,” the Court said, “the question must be whether [the state’s law] abridges expression that the First Amendment was meant to protect.” Id. at 776, 98 S.Ct. at 1415; see id. at 775-86, 98 S.Ct. at 1415-21; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346 (1976) (consumers have standing to challenge restrictions on pharmacists’ speech) (“the protection afforded is to the communication, to its source and its recipients both”); Lamont v. Postmaster General, 381 U.S. 301, 305-07, 85 S.Ct. 1493, 1495-96, 14 L.Ed.2d 398 (1965) (First Amendment protects the “unfettered” right to receive political messages sent through the mail).
. In this case, the decision to telecast “Death of a Princess” had been made by KUHT-TV’s full-time director of programming. The decision to cancel was made by the school’s Vice President for Public Information and University Relations, who had full responsibility for the operation of the station, but who had never before, in 17 years, made a programming decision. His decision was opposed by the programming director and, eventually, by the general manager of KUHT-TV. See 514 F.Supp. at 673-74.
. I note that the above-cited cases all involve school libraries; 1 would assume, as a general matter, that the school board has, if anything, broader discretion in determining the political content of materials selected for school children than the government broadcaster has in selecting offerings for the general public. See Ambach v. Norwick, 441 U.S. 68, 76-79, 99 S.Ct. 1589, 1594-96, 60 L.Ed.2d 49 (1979).
My reliance on these cases, however, implies no endorsement of the varying “tests” and reasoning they contain. For reasons I explain below, see note 11 infra, I would not put the initial burden on the government broadcaster to explain its every “questionable” decision, as some of these cases apparently do. See, e. g., Pico v. Board of Educ., 638 F.2d at 415 (Sifton, X); Minarcini v. Strongsville City School Dist., 541 F.2d at 582. Moreover, the government broadcaster undoubtedly has much broader discretion to cancel “offensive” material than some of the cited cases concede to the school board. Compare Right to . Read Defense Comm. v. School Comm., 454 F.Supp. at 712, with FCC v. Pacifica Foundation, 438 U.S. 726, 748-51, 98 S.Ct. 3026, 3039-41, 57 L.Ed.2d 1073 (1978) (First Amendment does not prevent government from restricting the broadcast of “indecent” and “offensive” material). Rather, I rely on these cases because they all expressly or implicitly support what I thought was a universally-held position: that the government cannot act against speech because of its political content.
. First Nat’l Bank of Boston v. Bellotti, 435 U.S. at 776, 98 S.Ct. at 1415; see Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966) (“there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs”); Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964) (“speech concerning public affairs is more than self-expression; it is the essence of self-government”).
. 1 think that the Mt. Healthy test is the proper one to apply in the government broadcasting context. Just as the Mt. Healthy Court was attempting to strike a balance between the state’s authority as employer and the employee’s First Amendment rights, we must here strike a balance between the state’s ability to run its public broadcasting station and the protection of “the freedom of speech.” If we were to require the government broadcaster to justify its every programming decision, we would make it impossible '«for government-run PBS stations to operate. The result would be a
For the same reasons, I would require the state to justify its decision with legitimate, not “compelling,” reasons. I can think of several such reasons in the broadcasting context: because the program is offensive, see note 9 supra, because it makes allegations that are defamatory, false, or misleading, because a superior or more popular program becomes available. In this case, the district court found that the responsible university official “may have” decided to cancel the program out of concern for the safety of a professor who was in Saudi Arabia working as a tutor. See 514 F.Supp. at 675; see also Muir, 656 F.2d at 1019 (claim of threat to well-being of Alabama citizens in the Middle East). If the state could prove that its concern had some basis and that the concern was truly a reason for its decision, then I would not require it to wait to cancel the show until a gun was put to the professor’s head.