829 F.2d 157 | D.C. Cir. | 1987
In 1984, feminist-activist Sonia Johnson ran for President as the nominee of the Citizens Party. Richard Walton, a Citizens Party founder and foreign policy author, campaigned as her running mate. Ultimately, they qualified for the ballot in nine
On July 24, 1984, Johnson and Walton wrote a series of letters to the League of Women Voters, the three major private networks, and the Public Broadcasting System, requesting inclusion in the League of Women Voters’ presidential and vice-presidential debates scheduled for and conducted in the fall of that year.
I. The Parties’ Contentions
Petitioners claim that by 1984 the televised presidential and vice-presidential debates had become so institutionalized as to be a prerequisite for election. If this is the case, they argue, then their exclusion from the 1984 debates would restrict their access to the ballot and impinge upon associational choices protected by the First Amendment. Petitioners cite Terry v. Adams
In considering petitioners’ claim, we must remain mindful of the regulatory framework that has evolved under the Communications Act and the decisions evaluating the broadcast-access provisions of the Act. Petitioners’ argument essentially boils down to a demand for broadcast access, and access claims based upon various constitutional and statutory theories have been heard by the Supreme Court and this court on a number of occasions.
We therefore first examine petitioners’ arguments in the light of the prior cases dealing with First Amendment access claims and the Communications Act. We conclude that the Commission properly determined that petitioners had no right recognized by the Communications Act or the broadcast-access precedents to be included in the televised debates. We then proceed to determine whether the contentions petitioners base upon the ballot-access cases resolved under the First and Fifteenth Amendments raise significant First Amendment issues not adjudicated in earlier decisions. We find that petitioners have failed to show any intrusion upon the electoral process that would require the grant to them of access privileges beyond those conferred by the Communications Act. We therefore affirm the Commission’s order.
II.The Communications Act and the First Amendment
In Columbia Broadcasting System v. Democratic National Committee,
Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public’s right to be informed is a task of great delicacy and difficulty. The process must necessarily be undertaken*376 within the framework of the regulatory scheme that has evolved over the course of the past half century. For, during that time, Congress and its chosen regulatory agency have established a delicately balanced system of regulation intended to serve the interests of all concerned.14
The Court thus recognized that both broadcasters and the public have important First Amendment interests at stake in controversies over broadcast access. The Court concluded that Congress, by denying the public an unlimited right of access in the Communications Act, and the Commission, in developing the fairness doctrine, had attempted to strike a balance that would satisfy the First Amendment interests of all concerned.
We face a far more pervasive scheme of regulation, and a significantly greater congressional sensitivity when, as here, the First Amendment rights of candidates for public office and their supporters are involved. There is, accordingly, a particularly strong obligation to consider petitioners’ claim of a right of access to the broadcast media against the backdrop of the balance of First Amendment interests embodied in the Communications Act, the policies of the Commission, and the case-law. Candidates are accorded greater access to the broadcast media than other citizens; they are afforded not only a limited privilege of reasonable access
In a case not involving the broadcast media, the Supreme Court declared that “the primary values of the First Amendment ... are served when election campaigns are not monopolized by the existing political parties.”
While the Communications Act thus affords candidates several avenues by which to gain television exposure, the televising of a debate sponsored by a non-network third party does not itself trigger access for competing candidates under the provisions of the Act. This is because the
The Chisholm petitioners did not attack the Commission’s Section 315(a) policy on First Amendment grounds. That challenge was made in this court in Kennedy I.
We can perceive no basis upon which to distinguish the case at bar from Columbia Broadcasting System and Kennedy I. Indeed, petitioners present a far weaker constitutional thesis than the ones those cases rejected. They seek, not general access, as in the former, nor an opportunity to respond to a particular broadcast, as in the latter, but rather the specific right to appear on a specific program — a program not organized by the broadcasters, but by a third party. Thus, viewed in light of the First Amendment balance struck in the statutory scheme, as delineated in the governing caselaw, petitioners have stated no legally cognizable claim to participate in the broadcast debates.
In addition, petitioners’ demand for inclusion in a particular program raises “the risk of an enlargement of Government control over the content of broadcast discussion of public issues.”
In rejecting First Amendment challenges by broadcasters to the statutory access
Petitioners are correct that the court has never approved a general right of access to the media____ Nor do we do so today. Section 312(a)(7) creates a limited right to “reasonable” access that pertains only to legally qualified federal candidates and may be invoked by them only for the purpose of advancing their candidacies once the campaign has commenced. The Commission has stated that, in enforcing the statute, it will “provide leeway to broadcasters and not merely attempt de novo to determine the reasonableness of their judgments”____ [I]f the broadcasters have considered the relevant factors in good faith, the Commission will uphold their decisions. ... Further, § 312(a)(7) does not impair the discretion of broadcasters to present their views on any issue or to carry any particular type of programming.39
The access demanded by petitioners in this case, however, would constitute a far greater intrusion on broadcasting discretion than the carefully limited statutory access upheld by the Supreme Court in that case.
Similarly, in the seminal case upholding the constitutionality of the fairness doctrine, Red Lion Broadcasting Co. v. FCC,
We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own view; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks in political editorials.43
We recognize the importance of preserving a large measure of journalistic discretion for broadcasters as a serious First Amendment issue, and this provides additional support for our holding that the
III. The First Amendment and Access to the Ballot
Petitioners contend, however, that this analysis is thwarted by what they assert as a newly-emergent social fact: that participation in nationally-televised presidential and vice-presidential debates is now a prerequisite to election. They insist, therefore, that their exclusion from the debates effectively excluded them from the ballot and denied voters sympathetic to their cause their First Amendment right to associate through the election and to cast their votes effectively for the candidate of their choice. They rely upon prior decisions of the Supreme Court striking down restrictions on a candidate’s access to the ballot as violative of the First or Fifteenth Amendments.
Petitioners’ First Amendment claims thus differ from those asserted in Columbia Broadcasting System v. Democratic National Committee and the other broadcast access cases. Safeguarding the integrity of the electoral process is a fundamental task of the Constitution, and we must be keenly sensitive to signs that its validity may be impaired. Petitioners’ argument, if valid, could affect the balance of First Amendment rights struck in the Communications Act, and might force a reappraisal of competing interests. We need not address questions of that sort, however, for petitioners have not demonstrated a restriction of access to the electoral process that the First Amendment proscribes.
In Terry v. Adams,
In Anderson v. Celebreeze,
So scrutinized, it is immediately apparent that exclusion from the televised debates has a far lesser effect than would exclusion from the ballot. The former removes only one of the great number of avenues for candidates to gain publicity and credibility with the citizenry, while the latter drastically restricts voters’ ability to choose the
In Buckley v. Valeo the Supreme Court addressed an analogous situation.
These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate’s ability to run for office but also on the voter’s ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters’ rights and less restrictive of candidates’. [The funding provision] does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions.57
Petitioners’ claims are functionally indistinguishable from the one found lacking in Buckley. Petitioners’ supporters were not hindered from casting their ballots for them, nor were petitioners hobbled in waging their campaign. While their inclusion in the televised debates undoubtedly would have benefited their campaign, the Supreme Court has held that the Constitution does not demand that all candidates be subsidized to the point that all are equal in terms of financial strength and publicity.
We decline petitioners’ invitation to embark upon the complex and hazardous task of recasting the First Amendment balance embodied in the Communications Act and the policies of the Commission. We remain mindful that the Communications Act reconciles not only competing policy choices, but also interests of constitutional stature in constant tension with each other. While we will not turn a deaf ear to any plausible assertion of constitutional right, we must be circumspect in any effort to vindicate an alleged constitutional infraction at the expense of constitutional interests at least equally valid and compelling. In the present case, we find the First Amendment interests of candidates, broadcasters and the public adequately served by the adjustments made in the Communications Act, and perceive no basis for disturbing the Commission’s denial of petitioners’ complaint.
Affirmed.
. Joint Brief for Intervenors CBS, Inc., and National Broadcasting Company, Inc. [hereinafter Brief for Intervenors] at 16-17.
. Appendix for Respondent (R.App.) 24-28. On August 30, the request was denied by the League of Women Voters, sponsors of the debate. R.App. 41.
. 47 U.S.C. §§ 151-611 (1982).
. U.S. Const, amend. 1.
. Appendix for Petitioner (P.App.) E-l, E-5.
. Sonia Johnson and Richard Walton, No. 8330-B, C8-405 (Mass Media Bureau, Oct. 4, 1984) (staff ruling), reprinted in 56 Rad.Reg.2d (P & F) at 1534 (Oct. 4, 1984).
. Sonia Johnson and Richard Walton, F.C.C. Docket No. 84-478, 56 Rad.Reg.2d (P & F) 1533 (Oct. 5, 1984).
Even though the 1984 election is now over, no one has suggested that the case is moot, and we are satisfied that it is not. The issues properly presented, and their effects on minor-party candidacies, will persist in future elections, and within a time frame too short to allow resolution through litigation. This is, therefore, a case where the controversy is "capable of repetition, yet evading review," Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714, 727 n. 8 (1974) (quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316 (1911)). Accord Anderson v. Celebrezze, 460 U.S. 780, 784 n. 3, 103 S.Ct. 1564, 1567 n. 3, 75 L.Ed.2d 547, 554 n. 3 (1983), and as such may be decided now.
. 345 U.S. 461, 469-470, 73 S.Ct. 809, 813-814, 97 L.Ed. 1152, 1160-1161 (1953) (declaring racially exclusionary primary to be violative of the Fifteenth Amendment).
. 460 U.S. at 790-795, 103 S.Ct. at 1570-1573, 75 L.Ed.2d at 558-562 (striking down early filing deadline as a restriction on ballot access violative of the First Amendment).
. Brief for Respondents at 24-25; Brief for Intervenors at 5-11. Because we ultimately conclude that petitioners possessed no substantive First Amendment right to be included in the 1984 presidential and vice-presidential debates, we need not determine whether their exclusion by the broadcasters constituted governmental action for First Amendment purposes. See Ripon Soc'y v. National Republican Party, 173 U.S.App.D.C. 350, 361 n. 28, 525 F.2d 567, 578 n. 28 (1975). In Business Executives' Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 188—191, 450 F.2d 642, 649-654 (1971), this court characterized broadcasters' denial of access for political editorial advertisements as governmental action. The Supreme Court reversed Business Executives’ on the question of whether the broadcasters substantively violated the First Amendment, but found it unnecessary to resolve the governmental-action question, over which it divided. Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 114-121, 93 S.Ct. 2080, 2092-2096, 36 L.Ed.2d 772, 790-794 (1973) (plurality opinion finding no govern
. See Brief for Respondents at 17-24; Brief for Intervenors at 12-17.
. See, e.g., Columbia Broadcasting Sys. v. FCC, 453 U.S. 367, 101 S.Ct. 2813, 69 L.Ed.2d 706 (1981); Columbia Broadcasting Sys. v. Democratic Nat'l Comm., supra note 10; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Kennedy for President Comm. (Kennedy I) v. FCC, 204 U.S.App.D.C. 145, 636 F.2d 417 (1980); Chisholm v. FCC, 176 U.S.App.D.C. 1, 538 F.2d 349 (1976).
. Supra note 10.
. 412 U.S. at 102, 93 S.Ct. at 2086, 36 L.Ed.2d at 783.
. Id. at 102, 110-114, 93 S.Ct. at 2086, 2090-2092, 36 L.Ed.2d at 783, 788-790.
. Id. at 103, 93 S.Ct. at 2087, 36 L.Ed.2d at 784.
. Id.
. 47 U.S.C. § 312(a)(7) (1982); Columbia Broadcasting Sys. v. FCC, supra note 12, 453 U.S. at 396, 101 S.Ct. at 2830, 69 L.Ed.2d at 729.
. 47 U.S.C. § 315(a) (1982).
. 47 U.S.C. § 315(b) (1982).
. Anderson v. Celebrezze, supra note 7, 460 U.S. at 794, 103 S.Ct. at 1573, 75 L.Ed.2d at 561.
. This point may be illustrated by comparing the limited nature of access to electronic campaigning and the lack of regulated access to campaigning by print. Even if endorsement by a prominent newspaper were shown to correlate mathematically to electoral success, the First Amendment not only would not assure access to this successful campaigning forum, but would forbid such an access requirement. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); see also FCC v. League of Women Voters, 468 U.S. 364, 376, 104 S.Ct. 3106, 3115, 82 L.Ed.2d 278, 289 (1984).
. Supra note 12.
. 47 U.S.C. § 315(a) (1982).
. Id. at 9, 538 F.2d at 357.
. Id. at 18, 538 F.2d at 366.
. Supra note 12.
. Id., 636 F.2d at 432 (quoting Columbia Broadcasting Sys. v. Democratic Nat'l Comm., supra note 10, 412 U.S. at 112-113, 93 S.Ct. at 2091, 36 L.Ed.2d at 789) (citation omitted).
. Kennedy I, supra note 12, 204 U.S.App.D.C. at 160, 636 F.2d at 432 (quoting Red Lion Broadcasting Co. v. FCC, supra note 12, 395 U.S. at 390, 89 S.Ct. at 1806, 23 L.Ed.2d at 389)).
. Columbia Broadcasting Sys. v. Democratic Nat'l Comm, supra note 10, 412 U.S. at 126, 93 S.Ct. at 2098, 36 L.Ed.2d at 797.
. P.App. at E-5.
. See, e.g., FCC v. League of Women Voters, supra note 22, 468 U.S. at 380, 104 S.Ct. at 3118, 82 L.Ed.2d at 292.
. Supra note 12.
. 47 U.S.C. § 312(a)(7) (1982).
. Columbia Broadcasting Sys. v. FCC, supra note 12, 453 U.S. at 397, 101 S.Ct. at 2830, 69 L.Ed.2d at 729.
. Id., 453. U.S. at 396, 101 S.Ct. at 2830, 69 L.Ed.2d at 729, (quoting Monitor Patriot v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35, 41 (1971)).
. Columbia Broadcasting Sys. v. FCC, supra note 12, 453 U.S. at 396-397, 101 S.Ct. at 2830, 69 L.Ed.2d at 729 (emphasis in original).
. Supra note 12.
. 395 U.S. at 390, 89 S.Ct. at 1806, 23 L.Ed.2d at 389.
. Id. at 386, 89 S.Ct. at 1805, 23 L.Ed.2d at 387.
. Id. at 396, 89 S.Ct. 1809-1810, 23 L.Ed.2d at 392-393 (emphasis added).
. Supra note 8.
. See 345 U.S. at 469, 73 S.Ct. at 813, 97 L.Ed. at 1160.
. Id. at 463, 73 S.Ct. at 810-811, 97 L.Ed. at 1157.
. See id. at 470, 73 S.Ct. at 814, 97 L.Ed. at 1161.
. Supra note 7.
. 460 U.S. at 787, 103 S.Ct. at 1569, 75 L.Ed.2d at 556-557.
. See id. at 788, 103 S.Ct. at 1569, 75 L.Ed.2d at 557.
. Id. at 786, 103 S.Ct. at 1568, 75 L.Ed.2d at 556 (quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92, 100 (1972)).
. Brief for Intervenors at 16-17 n. 23.
. 47 U.S.C. § 315(a) (1982).
. 47 U.S.C. § 315(b) (1982).
. 424 U.S. 1, 94-96, 96 S.Ct. 612, 670-671, 46 L.Ed.2d 659, 730-731 (1976).
. Id. at 93-94, 96 S.Ct. at 670-671, 46 L.Ed.2d at 730-731.
. Id. at 94-95, 96 S.Ct. at 670-671, 46 L.Ed.2d at 730-731.
. Id. at 97-98, 96 S.Ct. at 672, 46 L.Ed.2d at 732-733.