*1 McGLYNN, RICHARD B. THE COMMITTEE INDIVIDUALLY AND GOVERNOR, MCGLYNN, RESPON- TO ELECT RICHARD DENTS, v. AUTHORI- NEW JERSEY PUBLIC BROADCASTING NEWS, TY AND NEW NIGHTLY APPELLANTS. JERSEY 19, Argued September October 1981. 1981 Decided *3 Harned, Deputy Attorney General, argued Barbara A. Zazzali, (James cause for appellants R. Attorney General of New Jersey; General, Conley, Erminie Attorney L. Assistant of coun- sel). Abrams,
Floyd Bar, argued a member of the New York (Riker, Danzig, cause amicus curiae WNET/Thirteen Scherer Hyland, Abrams, attorneys; Floyd Gregg & Young, Charles S. Baron, Bar, Warren and S. Sandra members the New York *4 counsel; Miele, brief). Frank J. on the McGlynn argued pro
Richard B. (Stryker, the cause se Tams & Dill, attorneys).
B. argued Theodore Bozonelis the cause respondent for Com- Bozonelis, mittee to McGlynn Elect Richard (Sweeney, Governor Woodward, and attorneys). Staehle
Amos Gem submitted a brief on behalf of amici curiae The Corporation Broadcasting, for Public The Association National Broadcasters,
of The National of Public Television Association Stations, Radio, National Public The Public Ser- Reporters vice and The Committee Freedom of the Press Stiber, Weinstein, (Gern, Dunetz, attorneys; Davison & Paul A. Root, Mutino, Krasnow, Frank, Thomas L. Erwin G. D. Theodore Baron, Hill, Smith, Nancy Pamela Stanton Janice F. Eric H. Hendry, Mahoney, Jack C. Landau and P. members of Sharon Bar, counsel, Nevas, Stephen District of Columbia of E. Bar, counsel). member of the Massachusetts of Robertson, Attorney, William W. United States and Bette Uhrmacher, Attorney, Assistant United States submitted a brief curiae Federal behalf amicus Communications Commission Robertson, (William attorney; Stephen Sharp, W. A. a member Bar, Armstrong of the District of Columbia and Daniel M. Bar, Margolis, counsel). Lisa B. members of the New York opinion of the Court was delivered PASHMAN, J. major
This is a importance. case of It transcends the claims of the litigants political individual who were candidates in the recently gubernatorial primary concluded election. The overrid- ing relationship journalistic issue concerns the between the freedom which granted has been the New Jersey Public Broad- casting Authority duty and its of fairness in the coverage of gubernatorial campaigns. Authority given
We now that the range hold has been a wide journalistic freedom under Federal and State law in deter- mining scope the content and coverage of television broadcast gubernatorial campaigns. given election This freedom has been Legislature significant to effectuate the public policy goal providing the people of New subjects needed directly and events which most though affect them. The Authority, governmental instrumen- tality, is intended to exercise its discretion independence with the and freedom that characterize a free and press. time, vibrant important At the same its responsibilities *5 discharged are to be within a framework of fairness impar- tiality comporting generally prevailing regulatory federal philosophy.
In so holding, we strongly endorse the fundamental commit- ment which has made for the people of this creating State in broadcasting carry station to out these important goals. fully anticipate We the judiciary will have no direct or active role in this arena. This is as it should However, be. any controversy courts, if should come before the the Judiciary will unhesitatingly honor the commitment of the Legislature to a free and fair broadcasting authority.
The determination which today we reach results from the reargument appeal. of this We have had the opportunity to consider implications greater depth the case in than was possible when it first emergent reached us on an basis. This brought reconsideration has the entire court to a different conclusion than was earlier Accordingly, held. we reverse our prior order.
We briefly need to reiterate the course which appeal this has McGlynn, taken. joined Richard later by Jack Rafferty, candi- Republican dates for the governor, nomination challenged Jersey refusal of the New Public Authority to include them in a forum on five important (Forum) issues to be telecast program its “A Closer Look” during the final week of the primary campaign. When the case Division, Appellate reached the seg- two of the five scheduled ments already had been broadcast. All segments included statements on the issues eight Republican four of the candi- McGlynn dates. alleged program that his exclusion from the (Section violated 19:44A-39 N.J.S.A. 14 of the 1974 “Act to amend supplement Jersey Campaign ‘The New Contribu- Expenditures Reporting ”), tions and 48:23-7(h) Act’ N.J.S.A. (Section 7 of Broadcasting Authority the “New Public Act”), 47 U.S.C. 315 and the First and § Fourteenth Amend- ments to the United States Constitution. *6 Appellate Division emergent application,
Upon plaintiffs’ further all excluded candidates be included ordered that The court further directed that state- showings of the Forum. already candidates on the issues discussed by ments the excluded approximately originals the same hour that the be broadcast at Authority’s appeal emergency on an were shown. We heard the appeal, On Appellate basis and affirmed the Division’sorder.1 Brennan, Jr., William Associate Justice of the the Honorable J. Court, Supreme stay. refused to issue a United States election, granted Authority’s peti- primary After the we rehearing tion for because the interest would be served by summary ruling. a clarification of our earlier
I Jersey Broadcasting Authority (Authority), The New Public Jersey, New was established instrumentality an of the State of Act, Broadcasting by Authority in 1968 the New Public operates seq. Authority 48:23-1 et The owns and N.J.S.A. WNJT, WNJS, WNJM, WNJB and four educational television Jersey public constitute the New television net- stations which work. All four stations are licensed the Federal Communica- (FCC). tions Commission MeGlynn Rafferty among
Plaintiffs Richard and Jack were the eight Republican governor candidates for nomination for Jersey. of New Ann Klein was one of thirteen candidates for primary the Democratic nomination. The election was held on (Channel 13) 1The WNET which Division’s order included broad Appellate conjunction casts “A Look” in with the Public Authority. Closer judgment We reversed Division as to WNET and dismissed the Appellate proceeding against being subject WNET, owned, it since is not privately N.J.S.A. 19:44A-39. proceeding. 2Ann Klein is not a to this She was also excluded from party program, brought FCC, the “A Look” her Closer but she complaint 8330-B, which Klein, denied her See Aim Docket No. C5-860 petition. (5/29/81). During primary campaign, Authority June 1981.3 provided required by New extensive television Act, Expenditure Reporting Jersey Campaign Contributions and 19:44A-39. N.J.S.A. coverage New inadequacy
As a result of the of television Jersey gubernatorial private races New York and Phila- 122-23, responsibility delphia stations, significant infra at see keeping Jersey viewing public the New informed about the upon Jersey public candidates and issues falls television. problems coverage by of election the New York Phila- delphia presence stations were exacerbated in this case responsi- candidates the race. The fulfilled its *7 First, bility in ways. several it aired a series of ten-minute profiles in which opportunity each candidate received the profile discuss the was during May. issues. Each shown twice Second, Beat,” “McLaughlin’s regularly weekly in- scheduled program, terview broadcast interviews the candidates Third, groups through May of two or three from March 5 21. forums, Authority League covered two of Women Voters party, one for each to which all candidates were invited. Final- Nightly ly, appeared Jersey the various candidates on “New (Nightly News). News” each There is no evidence of how often However, “A appeared evening candidate on the news. Closer Look,” gener- segment Nightly a ten-minute News which event, ally provides in-depth analysis single of a issue or broad- profiles mid-April. cast of each candidate in conclusion, Bloom, campaign As the neared its Herbert Execu- News, Nightly tive “A Producer of decided to devote Closer very Look” in an affidavit to be “five to what he described significant campaign.” issues in the All 21 candidates had been issues, responses asked to comment on these and their were taped approximately they four weeks before were to be shown. among McGlynn, Rafferty and did not finish the front 3Candidates Klein runners. explained Bloom that “there was not remaining sufficient time * * * primary before the election to cover all 21 candidates.” “professional He therefore used his judgment news ... .in staff,” consultation with senior group leading select a [his] candidates whose views would be broadcast. Ten of the 21 candidates were chosen for this programs. final series of
Among the candidates excluded from this forum were 25, McGlynn Rafferty. May On the four New stations television and WNET/Thirteen announced their intention to air the series of discussions on “A Closer Look.” following day, McGlynn The and the Committee to Elect Rich- McGlynn ard complaint Court, Governor filed a Superior in the Chancery complaint Division. The alleged that Authority had McGlynn’srequest refused to be included. McGlynn alleged rights that the exclusion violated his under the Federal Commu- Act, nications Jersey Campaign Expenditures and Act, Reporting Act, Public Authority and the First and Fourteenth Amendments of the States Consti- United. tution. Chancery
The complaint Division found the appeal to be an from an administrative determination and so transferred the case Appellate May Division on 26. At point, this Rafferty plaintiff. intervened as a Appellate Division May issued its Order on 27 directing that the excluded *8 any candidates be included in future forum and that statements by the excluded candidates on the issues discussed the tele- already casts aired be broadcast at approximately the same hour - as original segments were shown. We affirmed the order as 27, Authority May and the Authority planned aired the “Closer segments Look” with all candidates governor includ- ed. election,
After primary granted we the Authority’s Peti- tion for Rehearing.
121 II technically This ease is moot primary since the election has been respondents held and longer are no gover- candidates for However, nor. “we have recognized often may that courts hear and decide cases which technically are moot where issues of great public importance are involved.” In re Geraghty, 68 N.J. 209, See, (1975). 212 Ass’n, Dunellen Bd. of Ed. v. Dunellen Ed. 17, (1973); 64 N.J. John F. Kennedy Hospital Memorial v. Heston, 576, (1971); 58 N.J. Tp. East Brunswick of Ed. Bd. Council, 94, v. East Tp. Brunswick (1966). 48 N.J. This case important raises issues concerning the role of New Jersey public covering television in state elections. upon Failure to elaborate May our decision of inevitably 27 would force the courts to face nature, further cases of possibly basis, this emergent on an precedent without useful construing Jersey the New stat- utes at issue here. We have therefore decided to resolve the presented. issues
Ill starting point for our discussion must be the Jersey New scheme, statutory comprised which is Jersey of the New Public Act, 48:23-1 seq., N.J.S.A. et and Sec- tion 14 of the act to amend supplement “New Campaign Expenditures Act,” Contributions N.J.S.A. 19:44A-39, 1981, L.1981, in April amended c. 107. The Authority’s obligations people regarding of New Jersey gubernatorial of their election derive from these statu- tory provisions. reported Yet there construing are no- cases either act.4 Appellate May order, 4The Division’s order of and our affirmance of that plaintiffs’ Jersey statutory opinion were based on claims. This is to clarify prior respondents decision. Since have obtained the relief which
they sought, we find no cause here to address their claims made under the Federal Communications Act and the First and Fourteenth Amendments of
122
A. Overview response was in unique created 1968 in
dependence Jersey of New viewers on out-of-state television Although ninth-largest population, stations. in state New Jersey only is one at two states without least one licensed Jersey depend VHF television station. New viewers on seven City Philadelphia stations from New York and four from for coverage. Although private VHF television several UHF sta- in Jersey, signals tions are located New their do not have the power to reach the entire state and viewership their is too small substantially Jersey’s to affect dependence New on out-of-state in television. The FCC found 1976 that “there need is a improved Jersey New television service ... some or all of those City mass-audience stations licensed to either New York Service, Philadelphia.” Jersey State New Television 58 FCC 790, (1976). 2d 804 may
This situation have been the result federal communica- policy. primer, tions A FCC York issued New Pennsylvania detailing obligation stations the extent of their elections, Jersey cover New problem. underscores the might New York broadcaster [A] broadcast news and affairs City pro- gramming concerning major outlying receiving events cities or areas its signal, give but could hardly of local elections expected in-depth from Connecticut or Central New A Connecticut or New station Jersey. Jersey might cover such but we would not a New station elections, fault York ignore in its chose, discretion, them. New State of [Quoted Jersey (1976)] Television 58 FCC 2d Service, According to the New Broadcasting, Coalition for Fair Philadelphia which monitored York and news telecasts in 1973, only Philadelphia 13% of local news broadcasts 5% of the United States Constitution. We also whether no as to express opinion court state hear under may claims the Federal Communications Act. properly *10 New York local Jersey topics. news broadcasts concerned New Service, supra, Jersey New Television at 790.5 partly longstanding paucity It was to alleviate this of televi- sion coverage Jersey Jersey of New news that New created the Broadcasting Public Authority.6 Authority governed by is Commission, Broadcasting Public which consists of five ex-officio members (the Commissioners of Education and Com- Affairs, Education, munity Higher the Chancellor of the State General) Treasurer Attorney persons and the and ten other appointed by the Governor with the advice and consent of the appoints Senate. The Commission Executive Director sub- 5See, Service, Jersey supra, suggesting New Television at that New Jersey coverage by Philadelphia news the New York and VHF stations has improved notably since 1973. continued, however, by stating
The FCC Jersey coverage, partly ... it must be observed that these stations’ New they large partly because serve multi-state areas and because of the financial, logistical, consumption and time associated with obtain- factors ing reports, generally day-to- video field does not consist of the kind of detailed, day visual which can offered be television stations expansive serving less and more discrete areas. at [Id. 796] Report 6The of the on Public for New Governor’s Commission Jersey (1968) problem: examples noted of this area, geographical undeveloped A whole new the richest real estate in Jersey New world —the meadowlands —is under discussion as this report being prepared. Philadelphia is No New York television station Jersey any hearings hearings has covered in New of the which have — produced serious statewide discussion for the first time. Public broad- casting Jersey reporting proceedings for New should be of these hearings. broadcasting Jersey analyze depth Public for New will these issues. Eight days public hearings Jersey early on crime in New in March aspects have aroused considerable interest and concern. The sensational mill, story may grist of this be for commercial television’s but the more profound implications findings can best covered broadcasting. study Jersey An excellent of the civil disorders in three cities in New recently ninety-nine published. has been recommendations it Of made, probably If few citizens in could name more than five. now, public broadcasting receive there were each recommendation could study. attention and at [Id. 68-69]
ject approval The Director serves as the Governor. Authority. chief executive Either the officer Commission him, may replace although or the Governor the latter case he given right hearing and a before can be is notice he Authority empow- dismissed. 48:23—4 -5.7 The N.J.S.A. “establish, operate” ered own and noncommercial television stations, 7(d), radio and to N.J.S.A. seek FCC licenses 48:23— them, 48:23-7(e). N.J.S.A. creating provi- The act contains two relevant concerning sions programming. content its N.J.S.A. *11 prohibits Authority 48:23—9 “supporting opposing from or political any party or for public candidate office.” N.J.S.A. 48:23-7(h) empowers Authority [ajssume for the character, and excellence of responsibility diversity, quality, programming programs is which released via its licensed facilities, provided programs series of of a controversial nature be shall presented balance,
fairness and [emphasis added] equity, below, provisions These will greater length be discussed at after statutory the remainder scheme set now is forth. For it although provisions suffices to note that these vest the Authori- ty with coverage, they broad discretion in news also define the discretion, belying contours for the exercise this any thus argument Legislature that the Authority intended free the all completely statutory from direction. part comprehensive
As of a revision the Campaign Contri- Act, butions and Expenditures Legislature in 1974 enacted N.J.S.A. turn significantly which in was amended in 19:44A— 1980 and 1981. The policy underlying the 1974 act was ex- pressed by N.J.S.A. 19:44A-27: compelling It is declared to be a interest and to be the hereby policy general campaigns this State that election for the office of shall be Governor
financed with It public support this act. is the pursuant provisions financing intention of this act that such in amount so that adequate degree management 7The to which a Governor controls the of the Authority is infra at noteworthy. See 126-127. may campaigns candidates for election to the office of Governor conduct their improper persons free from may influence and so that of limited financial means highest seek election to the State’s office. problems One of the facing candidate, crucial especially one means, of limited is access to television. particularly This is true in Jersey Jersey viewing because the New market dominated out-of-state stations. A wishing buy candidate air pay time must the high rates, New York or Philadelphia though even only he needs to reach a fraction of the markets served the stations recognition those cities. In of this special problem, provision concerning included a the Authority campaign in its spending reform statute. originally
N.J.S.A. 19:44A-39 only general concerned elec- tion. It directed the promote full discussions of issues the candidates general election for governor, and mandated that the Authority specified set aside amount of time for each candidate on the ballot. It was part amended in 1980 as extending public of the bill financing to primaries, adding guarantee of fixed amounts of air time primary for each candidate.8 amendment, provided:
8After the 1980 N.J.S.A. 19:44A—39 Broadcasting Authority a. The New Public established under P.L.1968, (C. seq.) promote c. 405 48:23-1 et shall full discussions of *12 public by issues the candidates for nomination for election to the office of any election, primary charge Governor on the ballot in free of to the authority candidate. The shall make available at least hours of time on candidates, joint appearances by its stations for and at least 15 appearances by minutes of time on its stations for individual each of the authority may promulgate regulations candidates. The such rules and as may necessary purpose be to effectuate the of this subsection. authority . promote public b. The shall full discussions of issues election, any general candidates for the office of Governor on the in ballot charge authority free of such candidate. The make shall available joint appearances by at least 1 hour of time on its stations for such candidates, and at least 1 additional hour of time on its stations for appearances by authority may individual each of such candidates. The promulgate regulations may necessary such rules and be to effectuate purposes of this subsection. 1981, however, statute, Legislature again In amended the apparently response unwieldy primary size of the 1981 field. 19:44A—39 now reads N.J.S.A. as follows: Broadcasting The New Public established under c. P.L.1968, Authority (C. seq.) 48:23-1 et shall full discussions of issues promote candidates for nomination for election or election to the office of Governor on general the ballot in in accordance with Federal law and election, any primary charge promulgate free of to the candidate. The such rules and authority may regulations as to effectuate the of this section. may necessary purpose Thus, Legislature specific provi- removed the minimum time replaced general obligation promote sions and them with a full discussions the candidates in accordance with Federal law. constraints, presently
The issue before us is to determine what any, if statutory provisions 48:23-7(h), these three —N.J.S.A. N.J.S.A. 48:23-9 and N.J.S.A. 19:44A-39 —were intended to place on the Public Authority’s coverage of New Jersey gubernatorial elections. This determination must be light made in Authority’s unique of the position as both an instrumentality of Jersey government the New and a crucial source of exposure gubernatorial television candidates. B. The Public Broadcasting Authority Act “balance,
The equity” provision fairness and and the prohibition against political activities, 48:23-7(h) N.J.S.A. -9, respectively, clearly prohibit becoming from an any political advocate for position or candidate. The Author ity cannot endorse legislation candidates or and it cannot active ly use its stations to advance its views on the issues day. full, The envisioned balanced discussion of public issues. Legislature’s need to mandate balance was obvious. As
discussed, supra 123-24, at substantial role plays Governor appointment of Authority personnel. only appoint Not does he Commission, members of the which is “the head of the authority,” 48:23-2, N.J.S.A. but he approve must the Commis- designee sion’s for Executive Director and power he retains the *13 to dismiss him. To resulting eliminate the risk that the Authori- ty might politicized, become the Legislature precaution- enacted ary measures. provisions The are intended to eliminate appearance of impropriety. The Legislature recog- must have nized that the perception that a Governor using was Authority to political advance his own ends would be almost as damaging as the reality, both to Jersey public broadcasting and to New Jersey politics .general. in Finally, regardless of the danger influence, of improper it was inappropriate deemed the Authority to use its particular stations to political advance positions or candidates.
The seeks a narrow construction provisions. of these prohibition The against N.J.S.A. 48:23-9 “supporting op- posing any political party or candidate for office” could merely prohibit read actual endorsement or financial contributions, “balance, and the fairness and equity” language 7(h) interpreted N.J.S.A. could be to be a mere restate- 48:23— ment of the “fairness doctrine” of the Federal Communications Act.9 We do not believe that so narrow a construction was intended. standards, statutory State though necessarily not inconsistent with the fairness, federal relating standards are expansive. more present context, In the they encompass duty to cover elections in a balanced fashion. weighty Because of the underlying considerations Authority’s duty provide bal- anced coverage light and in 19:44A-39, of N.J.S.A. to be dis- presently, cussed we 48:23-7(h) hold that N.J.S.A. mandates “balance, equity” fairness and Authority’s coverage of the gubernatorial Similarly, candidates. we believe that since a substantial imbalance in the Authority’s election coverage can endorsement, have the same effect as an actual 48:23-9 N.J.S.A. 315(a), 9The “fairness doctrine,” embodied in 47 § concerns balance U.S.C. among among ideas, not balance individual advocates of those ideas. New Cablecasting, Primer on Political F.C.C.2d (1978). *14 128 “balance, equity” fairness and constraint encompasses
also coverage. Authority election 19:44A-39
C. N.J.S.A. in its Authority plaintiffs to include ordering In the issues, Appellate found the the Division “Closer Look” forum on equal running through time” “imperative an N.J.S.A. v. New Public Au McGlynn 19:44A-39. Authority The (App.Div.1981). thority, N.J.Super. 577 obligation might that have any equal claims that time been present provision prior to the 1981 amendment has been in this by that amendment. It asserts that the statute now eliminated itself, requires promoting merely full discussion election doing participation with the so and decisions on the means of Authority subject only individual candidates left to the to the law. constraints of Federal examining language provi- the of the amended
We start “equal sion. Nowhere does it contain the words time.” To read equal requirement a strict time into the statute would thus be not, however, judicial legislation. say an act of That is to least, duty; very impose the statute does not an affirmative at Authority required actively campaign. cover the The question Authority carry is how the meant the Authority argues given out this directive. The it was candidates; promote unbridled discretion to discussions respondents statutory guidelines that the counter constrain Authority’s discretion. Authority heavily
The relies on the reference to law Federal 19:44A-39, Authority in N.J.S.A. as amended 1981. The argues Legislature’s that this demonstrates the intent to remove any state restrictions on the amount of broadcast time each Thus, Authority’s policy candidate to receive. would be was Act, governed solely by the Federal Communications which gives maximum discretion to broadcasters.10 134-137,
10See infra. position Authority legisla- seeks to buttress this with history amendment, passed, tive of the 1981 which was at least partially, response presence on the candidates primaries. ballot in the impending gubernatorial Realizing that specific provisions hamper given time Authority would covered, delegat- number of candidates the Legislature ed to the the responsibility to best determine how promote Thus, full discussions sponsor’s candidates. bill statement to the indicates that the amended bill *15 Broadcasting would direct the New Public to Jersey Authority provide gubernatorial general campaigns give and election and the primary the discretion, within the limits and State Federal authority to Law, as the in manner which it does so. added] [emphasis The committee accompanying statement the is bill similar in its direction:
This bill amends the to election laws the New permit Public greater degree a the Authority in of the discussion of flexibility promotion gubernatorial general issues the candidates by election primary campaigns. legislative good history Legisla- This is indicator of what the ture provide. Evidently, intended the 1981 amendment to the prepared amendment was as a response large pri- to the mary field it and the effects would have on Authority election
coverage. The light amendment should be read in the of its legislative history. Clearly, Legislature’s general the approach problem to the greater was to vest discretion in the Public Nonetheless, Broadcasting Authority. we do not believe the meant to remove all limitations the Authori- ty’s Rather, discretion. the amendment was enacted to remove the coverage requirements, only minimum thereby to in- Authority’s crease the regarding coverage. discretion election Several lead disagree argu- facts us to Authority’s the ment that the repeal Authority State meant to all constraints on coverage of gubernatorial by save imposed elections those First, Federal Communications Act. that construction renders provision the new surplusage, mere since is re- Authority quired to abide Act independent Federal Communications a construction is to be'avoided 19:44A-39.11 Such
of N.J.S.A.
Co.,
possible.
wherever
In re Toms River Water
Second, “promote to full discussions mandate general more than the federal exhortation candidates” denotes requires the operate to in the interest. It at least elections, Authority actively gubernatorial cover but we be- to Reading light that it more. the statute in of related lieve does Legislature imposed statutory provisions, it is evident that the balanced, by the in a duty promote full discussions candidates legisla- equitable fair and fashion. It is difficult to see how the among tive mandate of full discussions the candidates can be continually accomplished if some of the candidates are excluded discussions, opportunity appear provided from if the or grossly inequitable. candidates is We believe that Legislature did not intend such a result. language points directly opposite of the statute
result. It mandates discussion “the candidates ... on the ” any primary general ballot . election. . . N.J.S.A. inclusive; language give 19:44A—39. This it does not liberty continually exclude candidates who *16 legal requirements have “on getting fulfilled the listed the similarly ballot.” It would not allow unfair or imbalanced coverage of those candidates. concurring opinions
The
contradict
themselves in their inter-
hand,
pretation
they
of the
statute.
the one
concede
State
On
imposes
duty
promote
that
the statute
a
full discussions —a
hand,
duty
imposed by
they say
not
federal law. On the other
grants
Authority complete
federal law
the
discretion to deter-
compliance.
concurring colleagues
mine the manner of
thus
Our
Donato,
(1977) (rebroadcast
taped
11SeeJohn F.
We persuaded are as well the context of statute that N.J.S.A. 19:44A-39 was preclude gross meant to imbalance in discussions,” the “full that it in light must be read of the 48:23-7(h) N.J.S.A. mandate that controversial issues be presented “balance, with equity” fairness and and the N.J.S.A. prohibition First, 48:23—9 against supporting candidates. N.J. part major campaign 19:44A-39 remains spending S.A. legislation, reform underlying equalizing theme which is opportunity governor present their candidates for ideas to jpopulace. imba- See N.J.S.A. 19:44A-27. Gross lance in coverage against access to television would work that goal.
Second, the the sponsor statement of of the 1981 amendment that granted stated was discretion “within the limits of Federal and [Emphasis State law.” This added] makes clear the Authority subject was meant to be State regulation regulation. well as FCC The reference must be to above, the other two provisions, discussed which deal with the political content of the Authority’s programming: N.J.S.A. 48:23-7(h) —9. We provisions concluded earlier that those “balance, mandated equity” Authority’s fairness and gubernatorial candidates. That conclusion strengthens our places belief that 19:44A-39 similar N.J.S.A. Authority. constraints on the up scheme,
To sum our Jersey statutory discussion the New we conclude Broadcasting Authority Public and the Act Campaign Expenditures amended Contributions and Act must pari each, provisions read separately, materia. that, implication raise a strong its consistent with broad discre- content, tion to determine Authority’s campaign broadcast “balance, coverage must'be equity.” executed fairness and *17 132 inescapable. together, conclusion becomes
Reading them that with wide Authority is vested hold that We therefore that, re- content but determining broadcast discretion in required by campaign, it is spect gubernatorial of a of the issues promote full discussion statute “balance, candidates, equity.” fairness and consistent with Authority goes com- given we have great discretion concurring colleagues, preventing thus pletely unnoticed our holding. They mistakenly reading majority’s an accurate regula- majority imposed comprehensive a assert has program- Authority, making judges the new tory scheme on the They conjure up the Jersey public mers of New television. Authority “sitting watching over the Big vision of Brother (Infra, 139-140) meeting.” Nothing at could every with them at it, law have construed State the truth. As we be further from programming to make gives great discretion decisions, of fairness. subject only to considerations argument that our for Justice Pollock’s
Nor is there basis Jersey public television into may convert New holding today right will have a of access. “public which all citizens forum” to and was not a result would be undesirable agree We that such strongly reject notion But we Legislature. intended today. have holding our We this result follows from right of access to televi- certainly general not created a sion. given legal designation to certain
“Public forum” is a
Tribe,
sidewalks,
streets,
parks,” L.
places,
“such as
689,
historically every
Law at
where
American Constitutional
been,
“time, place or
subject only to
speak,
one
free to
has
See,
Postal
e.g., United States
Id. at 689.
manner” restrictions.
Associations,
Service v. Council
453
Greenburgh
Civic
U.S.
114,
2676,
(1981);
Spock,
v.
S.Ct.
This
forum”
See, e.g.,
right
of access.
tradition mandates
areas in which
*18
133
Service, supra (mailboxes
United
public
States Postal
not
fo
'
rum); Greer, supra (public
military
public
of
areas
base not
forum);
Florida,
39,
242, 17
Adderly v.
385 U.S.
87 S.Ct.
L.Ed.2d
(1966) (grounds
149
of county prison
public forum); City
not
of
New
Municipal
System,
York
Justice Pollock
that the New
statutory
it,
as we
Jersey public
have construed
New
converts
television
public
However,
into a
place
public
forum.
a
a
becomes
forum
only when it
has been “dedicated to
use.” Muir v.
Commission,
1012,
(5th Cir.,
Alabama Television
656 F.2d
1020
Sept.1981).
right
The
access created
statute is
limited to “candidates
on the ballot.” N.J.S.A.
[for Governor]
candidates,
only legally qualified
19:44A-39.
It thus concerns
in
election,
only
only
every
years.
one
which occurs
once
four
2813,
FCC,
candidacies once a
IV This does not conclude our inquiry, however. It remains to be “balance, equity” determined what fairness mean election, gubernatorial context of a and how that standard applied should be instant case. turning Before those
issues, however, constitutional appellants’ we must examine first, Appellants argued, the Federal Commu- claims. have second, and, law the First pre-empts Act nications State precludes any limitation on editorial Amendment State Authority. discretion Supremacy
A. Clause Federal Act 1. Communications *19 in the concerning law broadcast communication United Most FCA, 151 seq., 47 et § is derived from the U.S.C. States dealing and seq. et with radio television specifically 301 § FCC, regula- a federal created the communication. FCA licensing tory agency assigned which is function of radio and 303(7). obligated television stations. are 47 All licensees U.S.C. § pursuant by by regulations adopted to it to abide FCA and . operated the FCC. The four television stations Authority are FCC licensees. regulation. subject to content licensees are minimal
FCC interest, convenience, “the Licenses are awarded as served,” 307(a), and necessity will 47 U.S.C. licensees are be § 315(a). “operate 47 U.S.C. required § to in the interest.” But, Congress for the the FCC have limited part, most government programming decisions. regulation of 315, regulation significant
One area of is 47 U.S.C. § simply provided that “equal opportunity” provision. Initially, it office “use” allowing licensee one candidate for elective to for that office the its station must allow all other candidates is sold one opportunity same to use the station. If air time to candidate, to all comparable air time must be offered candi- dates; candidate, if air it given time is free one must offered free to all. Recognizing a of medium television’s] potential radio’s [and importance Congress sought
communication foster its broadest ideas, political possible broadcasting encouraging utilization their facilities available stations to make Educational and to candidates for without [Farmers office discrimination.... Union v. 360 U.S. L.Ed.2d 3 WDAY, S.Ct. 525, 1302, 1305, 79 Cooperative 529, (1959)] 1407
135 Congress grant realized of an license was potentially FCC grant significant power and concluded that licensees should be limited in ability parlay power their this into electoral 562, success for themselves or their S.Rep.No. favorites. See Sess., Cong., Cong. 2564, 86th 1st & pp. U.S.Code Ad.News (1959); supra, Primer on Political Broadcasting, at 2216. Sec- tion 315 policy goals thus embodies the dual political active equal political debate and debate. 1959, Congress
In goals by altered balance between these amending 315(a), significantly declaring appearances by § newscasts, interviews, (1) (2) candidates fide (3) on bona news documentaries, (4) coverage news of news events do not equal constitute a “use” which triggers station provision. opportunity It is universally accepted that this response Daly decision, amendment was a Lar the FCC’s Broadcasting System, 238, Columbia 18 P. F. Reg. & Radio den., (1959), recon. F. Reg. F.C.C. 18 P. & Radio which clips Mayor Daley, televised film Richard incumbent re-election, performing mayoral and candidate for various func- trigger equal opportunity tions were held to doctrine. Con- *20 gress equal-time requirement feared that such an all-inclusive up meaningful coverage to . dry political “would tend . . of 562, supra, campaigns,” S.Rep.No. at 2572. Daly] consequence is that a will be
The inevitable Lar broadcaster reluctant [of political any news-type program he to show one candidate in lest assume the parade aspirants. presenting burden of a of at [Id. 2571] Thus, a of Lar Congress Daly concluded as result that active political rigidly equal political were debate and debate conflict- ing goals. policy by adding Congressional response
The was to amend the § exemptions Congress four enumerated above.12 Thus effectuat- 315, which has significantly changed not been 12Section since the 1959 amendment, now reads: (a) any person permit any legally qualified If shall who is licensee a station, any public broadcasting candidate a for office use he shall to concerned, that, coverage as news was
ed its conclusion insofar coverage] are so high “the a volume of news public benefits [of may from the great they outweigh the risk that result partisan some broadcasters.” may favoritism that be shown 562, at 2572. S.Rep.No. supra, the the construe
Congress delegated responsibility to FCC to exemptions: the new interview, newscast, precision news news It with what is is difficult define why
documentary, on-the-spot coverage the or of news .... That is event proposed legislation gave adopting language the in of the ... committee the complete flexibility discretion ... Federal CommunicationsCommissionfull exempt], [S.Rep.No. supra, particular program is determine whether a [to at 2574] discretion, exemptions the exercising given In the FCC has this FCC, v. F. sway.” for President Com. Kennedy “rather full equal opportunities for in other such candidates that office afford all broadcasting Provided, the use of such That such licensee shall station: power censorship no under the have of over the material broadcast provisions obligation imposed upon any of No this section. licensee by any Appearance the use allow of its station such candidate. qualified legally any—on candidate (1) newscast, bona fide (2) interview, bona fide news (3) documentary (if appearance bona fide news candidate is subject subjects presentation incidental to or covered documentary), news (4) on-the-spot coverage (including but not bona fide news events thereto), political limited to conventions and activities incidental broadcasting within the shall not be deemed to be use of a station Nothing foregoing meaning in shall be of this subsection. sentence broadcasters, presentation relieving construed connection newscasts, documentaries, on-the-spot interviews, news news events, upon obligation imposed them under from the news chapter operate and to afford reasonable this interest conflicting opportunity views on issues of for the discussion of importance. broadcasting any charges (b) made for use of station charges purposes made in this shall not exceed set forth section *21 comparable purposes. for for use of such station other prescribe regulations (c) appropriate rules and The Commission shall carry provisions § 315] to out the this section. U.S.C. [47
137 417, (D.C.Cir.1980). Thus, rejecting 2d 423 peti in Ann Klein’s issues, tion for inclusion in the “Closer Look” forum on the FCC wrote: encourage coverage, to In order uninhibited news believes Commission its deferring good judgments role in this area to the faith news appropriate requires judgment of broadcasters. To this end, the Commission will not substitute its for that of the but rather will disturb such when broadcaster, decisions only they are found to be unreasonable or in bad faith. This policy applicable programming broadcasters’ determinations whether falls within particular journalistic judgments concerning of the news well as exemptions, what programming. material should in be news presented Docket No. [Ann Klein, (5/29/81) 3 8330-B, C5-860 at ] stated,
Simply policy the FCC is to it leave individual degree broadcasters to determine the equal oppor- which the tunity broadcasting. rule should enforced news policy This determination FCC derives from its determination not to inhibiting risk coverage. active news Pre-emption
2. argues
The Authority pre-empts any 315 § state provisions impose upon ¡greater which equal oppor broadcasters FCC, tunity obligations FCA, than the as construed imposes. pre-empted (1) State law is in one two situations: “Congress where explicitly implicitly has either or declared that area, are v. prohibited regulating” Ray states from in this 151, 994, Co., 157, 988, Atlantic Richfield 435 U.S. 98 55 S.Ct. (2) (1978) L.Ed.2d 179 “actually where a state con statute 158, flicts awith valid federal statute.” Id. at at 994. 98 S.Ct. determining The test whether actual conflict exists is “whether, case, particular under the circumstances of [a] [the law stands as an obstacle accomplishment state’s] purposes objectives Congress.” execution the full Davidowitz, 52, 67, 399, 404, Hines v. 312 61 U.S. S.Ct. 85 L.Ed. Co., 519, (1941), quoted Packing 581 v. Jones Rath 430 U.S. 1305, 1310, (1977). S.Ct. L.Ed.2d involving privately broadcasting Were this a case owned station, pre-emption issue would be more to resolve. difficult “balance, state mandate cover elections fairness and
138 315, repre- though prima inconsistent with equity,” § not facie high degree of defer- emphasis from the sents an that differs gives to licensees. ence which the FCC its however, Broadcasting Authority, Jérsey Public The New Rather, instrumentality it of is an private is not a broadcaster. It is and financed the State Jersey. the State of New owned directly Jersey, appointed are or indi of New and its officers rectly simple dispositive is of by the This fact Governor. pre-emption issue. Jersey Supply,
In No. Dist. Water 75 N.J. K.S.B. Tech Sales v. 794, (1977), Hughes Scrap Corp., 272 426 v. Alexandria U.S. 2488, (1976), 220 S.Ct. 49 L.Ed.2d this Court and United not Supreme States Court held that the Commerce Clause does as apply acting purchaser goods to a as of rather than state explained in regulator private purchases. of As Justice Stevens concurring opinion Hughes: his in in a free It to differentiate between commerce which flourishes is important program. its Our market and commerce which owes existence to a state subsidy finding regulation
eases state an burden that a constitutes impermissible affected interstate commerce all dealt with restrictions that adversely a commerce which free market. This case is because the unique operation had not exist if has “burdened” is commerce which would Maryland Maryland scrap-processing not to a business. decided subsidize automobile portion at Sales, 296] at at in K.S.B. Tech 815, 2500, supra, S.Ct. [Id. quoted discriminating regulator prohibited from While the state as is commerce, purchaser against the state as has out-of-state will private to whom it same freedom as a citizen choose with Sales, Thus, engage this in commerce.13 in K.S.B. Tech Court upheld statutory requirement with the that contractors State governments buy only products. or local American freedom in 13This, course, pursuit assumes this is exercised not state under the We do mean proper purpose police power. imply could limit business example, State its permissibly purchases, Writing Court, owned white for a Justice Schreiber unanimous persons. legislation is so Sales, stated K.S.B. at state which “[t]he Tech supra designed acts further economic sanctioned would seem include those (Em legitimate ends, or other such as health and welfare.” interests added) phasis principle same in this case. In terms of federal pre-emption, the acting State New can be as viewed here in its capacity proprietor as of the Public Authority stations rather capacity regulator than its private broadcasting. law, Under Federal granted has FCC *23 broad discretion to the owners of licensed television to stations design coverage State, the election their of stations. The con- sidered as owner the of four stations the that constitute Public Network, in granted effect has this used discretion by law by deciding Federal that coverage shall be characterized “balance, by equity.” fairness and light, Viewed in this such a law; indeed, determination is not to contrary Federal Federal law gives Jersey New the authority to make such a determina- tion. follows, context,
It in this 19:44A-39 is a N.J.S.A. not governmental upon Rather, restraint a broadcast medium. it constitutes an part exercise of discretion on the the of State Thus, its capacity as a Federal licensee under the FCA.14 since the question to, statutes in passed pursuant were rather than in with, FCA, pre-empted by conflict not the statutes are FCA.
The FCC policy granting of maximum discretion individual Jersey adopt broadcasters policy has freed New a for election coverage that Authority’s unique addresses the situation. Be- cause adequate coverage Jersey of absence of of New by stations, private Jersey elections the voters of New are largely dependent upon public provide television election Therefore, information. Jersey has New State assured that public television by calling will fill the need promotion passed might by 14Thestatute is no different than a resolution which be determining private board of directors or the shareholders of a station owner way policy how that station cover should elections. No federal would private be undermined if a balance, station were to to cover elections with resolve equity among principle fairness and as candidates. The same ad prerogatives heres to the State’s an exercise its owner. However, “full issues the candidates.” discussion inadequacy private coverage of New again because elections, Authority’s position ap- Jersey gubernatorial position suggests obliga- proaches monopoly. that of a This an coverage in election which exceeds tion to be balanced and fair duty regarding may adequate- elections which on stations Moreover, special dan- ly by private covered broadcasters. coverage faced ger improper influence on election empha- government-owned greater militates in favor of station responded coverage. The has sis on balanced placing greater émphasis these on balanced needs licensee. requires than the FCC of a FCC, sum, FCA, preclude by the does not In as construed rather, gives licensees the free- coverage; balanced election it strongly they dom to wish to stress balance in determine how coverage. pursuant their election has acted to that freedom, taking special position into account the of the Authori- *24 elections, ty Jersey gubernatorial vis-a-vis New and has deter- balanced, coverage mined be fair and that its election should equitable, Its pursuant and it has done so to Federal law. perfectly appropriate actions are within the federal scheme of regulation. pre-empt We therefore hold that the does not FCA statutory concerning coverage by scheme election State Authority. premise that the Authori
This conclusion flows from the ty regarded agency can an present purposes for Nevertheless, appro Authority State.15 even if the were more priately still entity, characterized as an autonomous we would respect impact reach the same result with of Federal law. 15The is unlike the New and Authority Jersey Exposition Authority Sports Highway and the New bodies. For which are autonomous Jersey Authority right sue and be have the to issue bonds and to example, they statutory which the lacks. powers Authority sued —
141
noted,
previously
As
regulation
fully
only
state
is
pre-empted
in those areas in which the federal interest is so
that it
dominant
leaves
conflicting
no room for
Ray, supra,
State involvement.
157,
435
atU.S.
tions repugnant law. neither to nor inconsistent with federal As we explained, Congress have in 1959 was faced with an apparent encourage wide-ranging conflict between its desire political coverage goal and debate on the airwaves and its equalizing opportunity to receive access radio and television time among Congress, candidates for office. and the elective construing intent, FCC in Congressional have tipped substantially scales coverage, of news sacrific towards volume ing equality necessary.16 if television,
In the conflict Jersey public case of New nearly between not quantity balance does arise same force. that its television stations has resolved provide will high among and a both level of balance *25 impossible the Nobody suggested candidates. has ever that it is 16It noted, however, provision should be that “equal opportunity” the remains of law as an part federal and serves at least exhortation to broadcast ers to take into consideration. equality “equal that Congressional fear in was do both. providing deter broadcasters from private would
opportunity” danger simply is non-existent any coverage. That election the places legal duty on instance, 19:44A-39 this since N.J.S.A. no the We have full issues. Authority promote discussion spirit in a Authority carry out that mandate doubt can that the is no Consequently, there “balance, equity.” and fairness the terms or regulatory conflict the scheme and between State goals of the FCA.
B. The First Amendment regulation suggest that
Appellants and amici State Authority’s conflicts constraining journalistic the discretion pre-emp rights. As with the Authority’s First Amendment however, First that argument, plaintiffs’ tion contention is mandating fairness from Amendment bars owned and without a television network force in context of Authority agent, is the controlled the State. The State’s prescribed have power, its and restrictions been limitations agent those To contend not bound State. statutory of the First Amendment would provisions because indeed. anomalous governmental Amendment limits restraints
The First However, private marketplace it participation ideas. government participating, does not from prevent itself Commu 1102, 1110, Broadcasting, F.C.C., nity-Service Etc. v. 593 F.2d Law, (D.C.Cir.1978); Tribe, n.17 L. American Constitutional and when freedom to (1978), 588-90 the State exercises its recognize make it very 17We that a time would precise requirement equal obligation. as will be However, difficult out this Authority for the carry scheme does infra, impose precise not developed statutory injunction its Rather, time it is an equal provision. light among In overall election reflect fairness as candidates. injunc- is clear that this 19:44A-39, the 1981 to N.J.S.A. it to us amendment flexibility. was tion meant to be carried out in a reasonableness spirit
143 speak, may express it viewpoint, its own Community-Service 1110, n.17; Broadcasting, supra, Tribe, at supra, 590, at or it may neutrally relay messages goal of others. The New Jersey statutory scheme is to use the television State network neutrally relay messages of the candidates for governor Jersey. of New
Appellants’
argument
First Amendment
incorrectly relies
upon case law concerning private
newspapers.
broadcasters and
See, e.g.,
Tornillo,
Miami
Publishing
241,
Herald
Co. v.
418 U.S.
2831,
94
(1974);
S.Ct.
We therefore affirm the constitutionality of 19:44A- N.J.S.A. 48:23-7(h) N.J.S.A. and N.J.S.A. 48:23-9.18 18But cf. Muir v. Alabama wherein the Fifth Commission, Television supra, Appeals rejected Circuit Court of claims individual viewers of Alabama they right television that had a First Amendment to see “Death of a Princess," which the Alabama Educational Television Commission scheduled showing but then removed. Although holding in that case concerns the First Amendment merely rights telecasting programs, of viewers Muir compel specific dictum, language, making includes reference to the First Amendment scheme, statutory far, held that the New
Thus we have 19:44A-39, 48:23-7(h) and -9 and N.J.S.A. consisting of N.J.S.A. the issues promote full discussion of obligates *27 balance, fairness spirit in a gubernatorial candidates held that We have further among the candidates. equity and construed, pre-empted statutes, are not thus the New First by the proscribed Act or the Federal Communications the mean- in detail for us to consider Amendment. It remains it to the case “balance, apply and to equity” and ing of fairness at hand.
V equal time is no proposition: there We start with a basic does not 19:44A-39 N.J.S.A. requirement under the statute. a strict minute-for- “equal time.” To read include the words unwarranted into the Act would be equal provision minute time was not judicial equity principle and legislation. The balance equal time Authority the defunct intended reinstate for the to assure that general rule. It admonition is rather campaign coverage over the course of Authority’s election Further, the clear not on the whole unfair to candidate. this is that 19:44A-39 import of the 1981amendment N.J.S.A. Rather, it is inflexibly. strictly construed or admonition not be also That amendment spirit to be read in a of reasonableness. delegated Authority has been that the staff of the indicates mandate of carrying out this degree of discretion in significant fairness.
rights
involved a
that case
However,
stations.
of state-owned
television
agency acting
authority
statutory
within its
conflict between a public
seeking
agency’s
determination
discretionary
citizens
to reverse the
private
program.
and to
the broadcast
of a specific
compel
right
a First Amendment
contrast,
seeks to assert
Here,
in Muir
did not
its
The Fifth Circuit
authority.
to act
contrary
statutory
address
this situation.
Judge
Muir,
dissented,
Clark
We note that even in the situation'faced
basing
is a creature
the fact
licensee
“[t]he
his conclusion
1981).
(5th
State of Alabama.”
We therefore Authority conclude the been has given newscasts, higher degree regarding discretion news interviews, coverage news documentaries and of news events. This does not mean that the fairness mandate is obviated in those The Legislature instances. did not intend the FCA to supersede Rather, provision. State Authority the the should be given leeway implement journalistic wider to its judgment in areas, those its by but exercise discretion is still constrained balance, the duty provide to equity fairness and in its of candidates. course, “newscast,” interview,”
Of documentary” “news “news and “news event” self-defining are not terms. The FCC has developed defining rather elaborate case law these For terms. FCC, the been necessary try develop sharp it has distinction they between what those terms cover and what do not, since triggering equal opportunity of the rule turns on application sharp of that distinction. No such distinction is necessary since Jersey programming— here under New all law subject news or otherwise—remains to the fairness mandate. by a rule of reasonable- Instead, Authority guided should be programs type program involved. Some light ness in debates, news, and still others fall clearly others are clearly are greater the categories.19 The between those two somewhere Authority can given program, the more the news content of a journalistic judgment guide its actions. allow its feel free to Authority with Legislature provided has us and the not specific rules of law. We are general principles rather than case, only to seek to prepared point, at this on the basis of one im- general principles. More deduce detailed rules from these not wish portantly, we that the did are convinced rules. It has stated that the courts to set forth detailed abiding given is to be substantial discretion mandate; guidelines legislative laying a set of detailed down intent. It part Legislature’s would be a violation on our pre-empt Authority’s rule-making power. would also
Thus, Public Broadcast we hold that ing Authority statutory duty promote has a full discussions by gubernatorial issues candidates and to do so balance, impose the equity. duty fairness and This does not is equal programming. constraints of strict time The touchstone category. 19We believe that the “A Closer instant case falls into this third part regular program apparently generally Look” of a used to news is present However, instance, program news consisted of features. in this candidates, only recorded statements in the which constituted news always are sense that statements candidates one week before an election news. program We realize that the classified this as a “newscast” in its FCC However, 8330-B, (5/29/81). Arm Klein decision. Docket No. C5-860 *29 yes-or-no because of the structure of the had to make a decision § FCC exemptions. as to whether this fit of the Given the broadcast into one discretion, expan- policy maximizing of it chose a more FCC’s broadcaster exemptions. examining the broadcast sive construction of the We are constraints, circumstances, purposes and for under different with different surprising applying of a different statute. It therefore be neither nor should troubling adopt slightly the nature of the that we a different view as to Look” forum on the issues. “Closer fairness, basic and the to Authority have substantial discretion to light journalistic determine what is fair in of judgment. its newscasts, This discretion is to be the even wider in case of news interviews, news coverage documentaries and of news events. A wishing candidate challenge Authority’s coverage to the of a gubernatorial campaign will required prove to the Authority’s coverage, examined over the entire course of the campaign, has been or be unreasonably threatens to imbalanced.
VI We turn by plaintiffs. now to the claims They raised did allege not Authority’s the coverage overall campaign Rather, election was unfair or imbalanced. they alleged that Authority unfairly them excluded from week- long during forum on the issues be aired the potentially pivotal final primary campaign. They week asserted that this was contrary unreasonable and Jersey law. The basis, emergent ease came to on an denying us us the time to fully carefully issue, explicate and the statutes at which had not been previously reading construed this Court. Our initial the New requirement statutes revealed a of balance and coverage gubernatorial fairness in campaigns. The chal lenged McGlynn exclusion of Rafferty candidates from an important program during election the final week of cam paign appeared to requirement. violate the fairness For that reason, we Appellate affirmed the Division order that all candi Republican gubernatorial dates on the ballot for the nomination be included in the “Closer Look” forum. emphasize governing
We now that the Authority, statute designed interest, promote not does confer on an right program individual given candidate be included in fairness, programs. only right series His is to balance and equity entirety Authority’s election over campaign. course of the With the benefit of oral added argument upon rehearing, support adequate written we find *30 in the record that the overall Authority’s guber- of the fair, campaign natorial primary including was even without the plaintiffs in the final week’s forum. “Closer Look” The decision plaintiffs to exclude was a reasonable exercise of the broad Authority judgments discretion vested to make editorial in accordance with Federal and State law. puzzlement predictions We confess to total at the dire made n concurring colleagues today our that our decision has
wrought broadcasting imprecation holocaust. of such a The journalistic calamity pre- is difficult to fathom since we reach cisely concurring opinions result called for —one which recognizes generous enjoyed by freedom the Authori- ty under proper Federal and State law and its exercise this case. concurring opinions, Cassandra-like tone of the it seems us, exaggerated.
to is They Judiciary fail to credit the appreciation common sense an importance of the role of the Authority. envisage any We do not supervisory role Judiciary expect judicial in the broadcast field. We rare, judicial fully responsive involvement will be review to given freedom of action which the has Authority. Authority possess
We note that delegated continues to power promulgate regulations give specific rules and content legislative to the broad mandate. The urged implement rule-making provide its authority guid- ance in this area. reasons,
For foregoing upon rehearing, the Court clarifies its earlier determination and summary reverses its order. The Court, judgment Superior Division, Appellate is reversed complaint and the is dismissed.
WILENTZ, J., concurring. C. case, majority
We reached the same result as the in this but difference, the difference between us is fundamental. That we believe, importance is of critical future of New *31 public We regulation television. would not add State of broad- by cast New Jersey’s judges present content federal regulation; we would not impose another restraint on this journalistic station’s majority freedom. This would. States,
All covering television stations in the United in candidates, subject comprehensive body activities of are to a regulations federal in the embodied Federal Communications Act, 609, 47 151 to U.S.C. and in Federal Communication §§ See, interpretations e.g., Commission’s of that Act. New Primer Broadcasting on Cablecasting, Political 69 2d FCC (1978); Use of Broadcast for Facilities Candidates Public Office, (1970). 2d 832 FCC majority Legislature
The holds subject that intended Jersey’s New regulations television network to additional in its campaign coverage imposed in of requirements the form by the over and imposed by State above those federal statutory respectfully disagree scheme. We majority’s with the Legislature conclusion that intended to our burden requirements. broadcaster with more than the federal L.1981, 19:44A-39, legislative history c. N.J.S.A. Legislature admits of but one conclusion: the the New intended Jersey Broadcasting Authority, operation Public in its of New network, Jersey’s public subject television to be only federal laws in and rules its of candidate If added activities. needed, regulations them, Legislature impose it is for the are not this Court. our
The basis conclusion is the most explicit language, has all directed that such claims deter- law”; implicit mined “in accordance with in this di- federal requirement complaints rection such is the that all be handled by the Federal Commission federal Communications and the courts, by any Jersey agency and not New McGlynn’s court. It is claim clear Mr. would have been Klein, denied under federal substantive law. See In re Ann 8330-B, (5/29/81). Docket No. C5-860 holding its explicitly base majority does not While the State, there are added restraints desirability of such majority apparently used to factors references numerous While good policy.1 a matter of support its conclusions concern ordinarily matters of are considerations policy these valuable aids they are at times Legislature, solely to the however, case, legislative In this construing legislation. play no should policy considerations clear that such intent so Furthermore, very we have serious part in the Court’s decision. state control policy of increased wisdom of the doubts about the thinking. majority’s part some that forms I. Authority and establishing the Public
The Act *32 in 1968 adopted was a TV network authorizing operation the of L.1968, 1969. c. beginning of effective at the to become about not one word seq. That Act contains 48:23-1 et N.J.S.A. language, relied coverage, except for candidate supporting oppos- or Authority “from majority, prohibiting the office, or public elective ing party or candidate any political ” language is not the of 48:23-9. This otherwise. . . . N.J.S.A. light in of its coverage, on its face or equal time or fair either any opposing or against supporting history. prohibition The immediately from the most party or candidate derives political on Public the Governor’s Commission recommendations May report in its Jersey, contained Broadcasting for New Broadcasting, Report on Public Commission 1968. Governor’s 1968). The (May to New Citizens and Recommendations Broadcasting Authority as an Public envisioned the Commission involvement government which direct entity in independent political minimum, entity insulated from an kept should be to a majority of its result desirability stresses the notably, repeatedly 1Most light services, and statewide broadcast in lack of alternative Jersey’s regard State’s total population NJPTV in position unique viewers. See 88 121-23,124-25,126,139-40. N.J. light entanglements. interference and Id. at 29. In of this conception public broadcasting entity nonprofit of the as a creature, nonpolitical recommended that it Commission opposing any political prohibited supporting “should be from office, otherwise, public party or candidate for elective or attempting legislation.” Legislature from to influence The verbatim, adopted language virtually suggesting this that it concurred with the broadcast sta- Commission politics tions be removed from the vicissitudes of in should. prohibition against en- determining its broadcast content. The dorsing part design to free the candidates was of a intended not, authority government broadcast from control and plan impose upon majority suggests, part legislative of a judicially requirements fairness enforceable coverage gubernatorial of the race. Had the intend- the model of obligation, easily it could have selected ed such Act, the books the Federal which had been on Communications prohi- years. for several The construction that transforms this against into a mandate for fair bition endorsements justification. without (Section 9) majority’s reading provision of this Broadcasting Authority
Public Act as a basis for its conclusion unlikely light apparent seems even of a second source of more language prohibiting political endorsements and section’s Congress passed In an act lobbying. N.J.S.A. 48:23-9. (CPB), establishing Corporation for Public act, acknowledged model for the U.S.C. 396-399. This §§ *33 public broadcasting corporation by recommended the Governor’s Commission, Report to New see and Recommendations first, 396(f)(3), Citizens, in that the supra, provides at Section support any political “may not contribute to or otherwise CPB in public Similarly, office.” party or candidate for elective 399(a) Act, Congress that “no of the CPB mandated Section broadcasting may engage in noncommercial educational station editorializing may support oppose any or candidate for or broadcasting A office.” “noncommercial educational station” is in defined the Act as a television or station radio broadcast which—
(A) regulations under the rules and of the Commission in effect on the effective eligible paragraph, of this is licensed date to be the Commission as a by noncommercial educational radio or station and is television which owned and agency foundation, or or by private operated nonprofit corporation, 397(6XA) association; § .... U.S.C. [47 ]2 New Jersey The Public Broadcast stations are within this 399(a) definition and are therefore forbidden Section engage editorializing political in signifi- or The endorsement. prohibition cance of this illuminated the Conference Com- report legislation mittee on the was that to become the CPB Act: The House contains amendment which would provisions noncom- prohibit any engaging editorializing mercial educational broadcast station from in or support- ing opposing or candidate for office. bill The Senate contains no political comparable provisions. managers on of the Senate the House when part accepted it provisions against editorializing providing was that the explained was limited prohibition no
that noncommercial educational broadcast station broadcast editorials may representing management of such station. It should be opinion that these are not intended to and emphasized provisions balanced, fair, preclude objective of controversial issues noncommercial presentations educational broadcast stations. No. [Conference Report S.1160, accompany reprinted Cong. at & 1967 U.S.Code Ad.News 1772, 1834, 1835]. Thus, by Corporation virtue of Section 399 of the for Public Act, subject all noncommercial stations are to a political ban on endorsements similar that 9 of the Section Furthermore, Public Broadcasting Authority Act. it is clear legislative history from the Congress Section antici- pated that presented, controversial issues would be consistent balanced, with the ban editorializing* fair, objective never, now, manner. Yet suggested it has until been (practically Section 399 Act) identical to Section 9 of our adds requirement equal some political fair elections broadcasting 2Under this of a definition “noncommercial educational sta- tion" both public and educational broadcast stations benefit private may from grants Broadcasting. activities for Public Corporation *34 imposed to that already on broadcasters 315 of Section Act, Federal Communications unlikely U.S.C. 315. It seems § Jersey Legislature, that the New in following the federal exam- ple, such radically interpretation intended a different of the language explicit borrowed without direction to that effect. majority support 7(h) The also holding finds for its in Section Act, provides Public which the Authority power shall have the to: h. Assume for the character, and excellence responsibility diversity, quality, programming
of
which is released via its licensed
facilities, provided
programs
programs
or series of
of a controversial nature shall be
presented
fairness and
balance,
equity;
[N.J.S.A. 48:23-7].
again,
Once
language appears
source of this
to be the CPB
396(g)(1)(A),
Act.
In
empowered
Section
the CPB is
to:
(A) facilitate the full
of
telecommunications in which
development
programs
high
which
quality,
excellence,
innovation,
diversity, creativity,
are obtained from diverse
will be made available to
telecommuni-
sources,
objectivity
programs
cations
with strict adherence to
and balance in all
entities,
programs
or series of
of a controversial nature;
[emphasis added].
meaning
language
objectivity
The
of this
and balance has
explicated by any
not been
decisions of the FCC or the federal
courts,
Media,
significant.
Accuracy
but this in itself is
In
C.,
(D.C.Cir.1975),
Inc. v. F. C.
From 1971 when the Authority operations commenced of its stations, FCC, to 1977 complaint no was filed either with the the courts, Authority, else, anyone know, or as far as we asserting that any requirements the Act contained whatsoever concerning coverage.3 mayors, candidate thousands of With councilmen, freeholders, legislators, governors running and even office, for one thought would have that someone would have read this statute in the same manner majority as the brought was, however, an action based on it. It and is a statute simply requirements concerning campaign devoid of coverage, everyone knew it. It is not as if this were some abstruse piece legislation away tucked in the crevices of the Federal interpretations. Communications Act or its This was New Jer- sey’s statute, station, own New Jersey’s own television and one might expected aggressive have pursuit of that station with allegations of failure to particular do “basic fairness” to candi- any obligation if such existed. dates Failure to requirements include candidate was not the legislative result of inadvertence. apparently There was perceived no need for it. The station was already subject, as are stations, all television provisions of the Federal Communi- cations many regulations Act and its including concerning those coverage. Legislature candidate presumably concluded that NJPTV regulations needed no more than applicable those to all other stations. changed
That situation During in 1974. year, the Legis- passed lature providing a law partial public for the financing of gubernatorial general L.1974, election. c. 26. Section 14 of Act, seq., N.J.S.A. 19:44A-1 et obliga- contained the first tion, prohibition other than against endorsements, political imposed upon Authority concerning can- year simply 3The unreported is used because we are aware of an Appellate apparently upon by Division decision which the Act was relied gubernatorial against Authority’s candidate as the basis for a claim theory. stations on a “fairness” “promote full required It coverage.4 didate the office of public the candidates for discussions issues charge such candidate.” N.J.S.A. governor . . . free section, and the 19:44A-39. Prior to the enactment of that above, reference to “full discus- language just quoted only Act of clarifying sions of issues” was a statement en- prohibition against the effect that candidate precluding the station dorsement was not to be construed as By issues.” virtue of promoting “from full discussions 19:44A-39, this was transformed into an affirmative N.J.S.A. discussions, and now the discussions obligation promote such fairness” The notion of “basic “by were to be the candidates.” candidates, easily expressed if intend- “fair treatment” of so *36 ed, specific is a in that sentence. There is nowhere to be found however, follows, by the station that same obligation, for ¡east hour of required to afford at one specifically section was appearing all TV candidate and one hour for time for each would, simple in that sen- together. Again quite it have been where more than obligation tence of fairness to indicate some supplied, Legislature but the declined do one hour was to be with, complied requirements so. the one hour were Once satisfied, station was free to cover statutory section was and the stations, fit, subject, as were all other candidates as it saw regulations. federal law and was majority requirement that this new agree
We with the law, 19:44A-1 et public financing directly related to the N.J.S.A. majority, we are con- part. was a Like the seq., of which it expend public having decided to Legislature, vinced that the run, candidates to gubernatorial it easier for funds to make 312(a)(7), access of federal which § protects 4Cf. 47 U.S.C. specifically revoke a may that the FCC candidates to broadcast time: the section provides station’s license (7) access to or to failure to allow reasonable for willful or repeated of a broadcast- of time for the use of reasonable amounts permit purchase ing legally Federal elective office station candidate for qualified his behalf of candidacy. wanted entry to make their into campaign realistic guaranteeing at least a minimum amount of free TV time on Jersey’s own stations. Other than that guaran- minimum however, provided: time, tee no more was equal neither nor some notion of “fair treatment.” pattern
The 1974 law set the providing requirements for campaign coverage Authority laws, in the election rather than in the PBA Act. In 1980 the passed a law providing partial public funding for the gubernatorial prima- 19:44A-3(m)(l)(3). ries. N.J.S.A. The law became effective on July 1980. The Legislature, apparently realizing that the number of candidates in the primary major from parties both substantial, would be reduced the coverage individual time re- quirements primary compared in the general election minutes, from one hour to 15 but joint appearance doubled the requirement to two hours. Each primary, candidate in the therefore, knew that he or she was entitled to at least 15 minutes of individual and that he participate would joint appearance (of with all other candidates party) his or her of at least two hours’ duration.5 general obligation con- sentence, tained in the first that the Authority promote should full candidates, discussions of all issues was extended to primary, specific but the obligation Again, was different. it quite seems clear that once the obligation minimum of 15 minutes for each candidate joint and two-hour appearances had satisfied, been provide was free to additional *37 coverage as subject it saw always to federal law. fit—
Obviously the had reduced the one hour of re- quired time for each candidate to 15 minutes because it believed joint ambiguous 5The two-hour appearance is somewhat provision but seems to have been intended, and was so apparently construed joint to Authority, require of all appearance candidates from one party joint two hours, and another two hour of all appearance candidates from the other major party. There were no for other primaries any than the two parties. candidates, many primary that with so election the one-hour provision would constitute an unreasonable burden on the sta- station, tion. It also must have known that unless re- strained, might afford the front-runners much more than 15 minutes each minor and candidates much less. It did not however, attempt, require equality time allocated to a minutes, impose any candidate above 15 nor did it “fairness” requirements coverage.6 on such excess
Apparently seemingly requirement even this modest was 1981, deemed oppressive Authority for in with the primary campaign warming up, possibility and with the of 20 to running, Authority sought legislation candidates to have relieving introduced completely specific hourly it of this commit- ment, both for appearances joint appearances. individual and Obviously whatever gave discretion the law then the station was enough. (S.3059, not deemed The bill as introduced introduced January 1981) all obligations providing eliminated specific joint coverages time for individual candidates and for appearances general primary gover- in both the and election for nor, leaving only general obligation “promote full discus- sions of and primary issues candidates” in both the however, general general obligation, election. This was which section, qualified by all that remained was new and, before, language “in with law” “free of accordance charge to the candidates.” general obligation station was thus left with the
promote full discussions of issues “in accordance with law,” statement, sponsor explained, and the in his attached the “bill would direct the New Public provide coverage gubernatorial Authority primary and general campaigns give election the discre- tion, law, within the limits of federal as to manner state change 6The time from one hour candidate in the per equal requirements general to 15 in the if the station were minutes primary clearly implies coverage, not be able to additional time for candidate it need provide equal. *38 Obviously sponsor the supplied). (emphasis
in which it does so” Legisla- of the between the direction drawing was a distinction of the Authori- coverage the discretion provide ture —-to —and provide would such in which it the ty determine manner —to however, discretion, to be “in accordance was coverage. That his intention law,” indicating his statement sponsor the with and state with federal in accordance that those words meant law. for all once and was decided
The issue before this Court It amend- this bill was referred. to which committee Senate “federal” into inserting the word legislation by ed the given as Authority was which the phrase, so that the discretion full was promote it would to the manner in which (emphasis sup- federal law” only “in accordance with limited plied). clearly spelled out. Faced be more legislative
No intent could the discretion of the squarely question with the of whether law, the by both federal and state Authority should be limited not, only it should that committee decided Senate federal law.7 Authority’s discretion should be limitation on the committee is consistent The statement issued the Senate permitted the Authori- its obvious intent. It noted that bill promotion of the degree flexibility in the ty greater “a in the by gubernatorial issues candidates discussion of campaigns.8 primary general election (at 128) majority indisputable 7The refuses to face or even admit the accompanying sponsor, the bill as fact in his statement that while law, introduced, Legislature, originally state referred to federal and committee, bill, obviously thereañer, through changed because of the its bill) statement, (in sponsor’s sponsor’s that “in accordance with law” so added). (emphasis became “in accordance with federal law” statutory wording language Legislature’s changing 8The intent in widely changes great recognized It is entitled to deference. bill, not, important guide wording accepted may serve as an of a whether bills, respect understanding passed. amendments to was “As with what held, comparison provisions and knowl- which a conference is of different *39 bill, noted, upon signing “give The that it would Governor the New Broadcasting Authority Public maximum discre tion, law, within coverage gubernatorial federal in its primary general any specific election. . . . removes [It] time operate guide restraints and allows NJPTY to under FCC lines.” approving passed by Legislature In a bill the Gover may perceived acting nor legislative capacity in a and as part legislative government. branch of the state His upon may determining action a bill therefore be considered in State, 802, 265, legislative Lynch intent. 19 v. Wash .2d 145 P.2d Bates, 498, (1944); 269 Shelton Hotel Co. v. 4 Wash.2d 104 P.2d 478, (1940); Sands, Sutherland, Statutory 481 see also 2A C. (4th 1973) ed. Construction 48.05. § clarity legislative
The
of this
action is such as to render
through
7(h)
irrelevant
the issue whether the
Act
Section
concerning
requirements
Section 9 contained
candidate cover-
age, or whether the first sentence of
19:44A-39 im-
N.J.S.A.
posed
obligation
equality.
some
of fairness or
Even if we are
unreasonable,
wrong in our belief that
it is
and constitutes a
sections,
perversion
language
and intention of those
imposing
coverage obligations,
construe them as
candidate
we
wrong
cannot be
in our
conclusion
N.J.S.A. 19:44A-39
subject.
having
explicitly
Legislature
addressed to that
The
them,
edge
regard
may help
the [final]
of the action taken in
to understand
Sands, Sutherland,
(4th
1973)
Statutory
2A
ed.
version.”
C.
Construction
recognizing
change
language
is a
48.04 at 198. For cases
that a
§
intent,
legislative
arriving
v. Univer
substantial factor in
at
see United States
227,
(1952); Raybestos-
Corp.,
sal
I. T.
344 U.S.
73
The autonomous nature of the is relevant here in replete deciphering legislative intent. Act is *40 Legislature Authority wanted the to be inde- evidence that the operating pendent governmental of control in the station.10 7(h) legislative rights Authority, is a bill of for the Section charging responsibility develop programming it with the to of “character, diversity, quality and excellence.” 48:23- N.J.S.A. 7(h). suggestive hope language is of that NJPTV will discussion, develop controversy, into a vital channel for and know, only way namely through education in the we the creative journalists. prohibition— efforts of unrestricted Even its sole 9Having Legislature questions concerning concluded that the intended all governed candidate to be substantive law federal and resolving questions exclusive forum for such is the Federal Communications courts), (and appeal, Commission the federal we need not reach the has, however, question preemption. of Justice Pollock discussed that issue in separate opinion. Legislature’s Authority enjoy 10The intendment that the substantial autono my is consistent with the recommendations of the Governor’s Commission on Jersey: Public for New [Tjhe firmly government Commission believes that direct involvement in public broadcasting kept provide be to a minimum in order to should department public A of fullest flow of information. new or division only broadcasting organized provide could a viable alternative if be degree flexibility desirable for action and insulated from interference— necessary diversity, promote experimentation, an insulation which is innovation, creativity public broadcasting. [Report and freedom of and Citizens, supra, Recommendations to New at 41]. political against endorsement—the was careful to against ensure implications prohibition. further It said Authority precluded shall promoting “not from full issues.” 48:23-9. N.J.S.A. discussions independence provided Act, This is explicitly for in the N.J. 48:23-3, S.A. is by' provisions and confirmed concerning the operations structure and Authority. The head of the Authority is the New Jersey Public Broadcasting Commission, which consists of ten citizen five depart- members and heads 48:23-4(a). members, ment. N.J.S.A. The citizen who outnum- ber representatives one, the state two to serve for fixed terms and regard political are to be allegiance. named without 48:23-4(c). N.J.S.A. It is that Commission that selects the (subject Executive approval Director Governor) and it to the Commission that the Executive Director is responsible.11 48:23-4(g), Furthermore, N.J.S.A. 48:23-5. all employees NJPBA except performing those stenographic, typ- ing, other tasks broadcasting, unrelated are “un- service, classified” under civil another indication of NJPBA’s autonomy. provisions
These make it clear that the is no less independent agencies Turnpike, than such Parkway, Authorities, Sports Exposition & though even it does not have *41 Indeed, an independent financial important existence. in some respects it is even independent, more previously for unlike the minutes, authorities, actions, named and therefore of the Authority subject Governor, are by not to veto and its members by cannot be removed Governor. N.J.S.A. 48:23-6. independence grant may
This by have been motivated more Legislature’s journalism. than the concern for robust The Act contemplates New Jersey’s closely station will work 11Although Governor, may by the Executive Director be removed such requires presumably good hearing, removal notice and is limited to cause. N.J.S.A. 48:23-5. channels, as WNET’s Channel such
other educational for agreements arrived at voluntary cooperation and through most difficult cooperation would be their mutual benefit. Such counterparts at were viewed their operators of NJPTV if the independ- substantially programming less having 13 as Channel potentially by government being restricted in fact or ence or as and has worked cooperation has occurred regulations. Such Furthermore, than the Trea- financial sources other State well. 48:23-7(k), (7). contemplated by the Act. N.J.S.A. sury were fact, in fiscal 1980 were third of the station’s revenues In one Treasury including other than the State derived from funds — Broadcasting a federal Corporation for Public funds from the million dollars that corporation, which contributed over one (Channel 13), joint which for the year, and WNET contributed News, more than a project, Jersey Nightly news New somewhat Broadcasting Authority, million Public dollars. only symbol Report Annual 1980. These outside funds are not readily independence might but not be so Authority’s of the independence. forthcoming without that enacting the minimum time Obviously Legislature and 1980 asserted some control coverage requirements in 1974 above, mentioned autonomy. with this For reasons inconsistent intrusion into the thereafter decided that such require- repealed unwise and those affairs of the was majority, legislation ments. The construction however, Authority’s inde- represents greater invasion of the previously carefully requirements defined pendence than burdensome, imposed Legislature. apparently While and, quite specific they were once were requirements those time met, programming operators the station’s were free to resume legislative majority’s formula- independent control. through requirements applicable permanent tion leads to control gubernatorial coverage, day candidate every form of out, campaign progresses. standard is so day as the And the part those great it must cause doubts on the indefinite that enough say that all responsible programming. It is not *42 fair, they try they need to do is to be for know that some court agency may they were decide that not. There will be a on dampening programming creativity. definite effect Legislature, having Would the thus decided that the station independent having fairly should be consistently and abided decision, impose operators want to such strictures of Every this station? indication from both the 1981 amendment prior points opposite treatment of this station in the majority’s potential political direction. The concerns about in- substantial, terference are of course and must be addressed. governmental agency There no that any is doubt is vulnerable to control, certainly temptations such control a TV great. station are It of was the structure the Authority, however, Legislature sought that the wisely to create effective control, through heavy obstacles such not hand of manda- tory programming requirements. political That such is control obvious, risk Legislature is it but was decide that it was a risk taking perceived advantage worth in view of the giving only this grow something station its chance to into through meaningful only political freedom—freedom not from control, but regulations from kinds of strictures and might be thought necessary prevent such control.
Here the political concern not the risk of the unfairness privately owned station with its own business interests and the profit already motive of the owner. That risk has been taken Congress by granting complete and the FCC almost freedom to political such stations. It is the government risk control of a station that the majority is worried about. is ironic that It majority unwilling thinks the was to take the same political risk of profit unfairness with this station that has no motive, expressly and has been created to serve the interest. We suggest political that the risk of control this preferable station is damage governmental control of its candidate programming. *43 ren- of the law that our construction majority suggests
The and, course, the canons superfluous, 19:44A-39 ders N.J.S.A. should not be that a statute construction direct statutory Sands, meaningless. it 2A C. Suther- as to render interpreted so at (4th 1973), It is not land, ed. 46.06. Statutory § Construction 7(h) of meaningless than no less Section meaningless. It is all for Authority responsibility upon the imposes Act which 19:44A-39), though (N.J.S.A. programming. Section its own by the by litigation, is a direction to be enforced not intended operations, a to how to conduct Legislature the station as to Accuracy in Media v. F. oversight. Cf. legislative guideline for that the C., Project, supra. The fact The Network supra; C. cannot be enforced full discussion obligation promote to such party not mean that by any complaining any state court does law has to have a meaningless. every Not provision is purse Those who hold the meaningful. it lawsuit to make beneficiaries in not have to sue their order strings usually do respected. have their wishes our conclusion that the majority
The also claims hand, discussion, Authority gave but on the one directed full the oth- concerning compliance, on under federal law discretion Legis- all: the er, is no contradiction at contradictory. is There Authority ordering it—that it should telling the lature is —not Authority will (presumably the discussion promote candidate judged solely by federal law so) that it will be voluntarily do but coverage, including the extent thereof. of its aspects as to all any contradic- Legislature will not find We are confident intention, will expressed nor clearly its opinion with tions in our operations. in its any contradictions experience station II. amendment, along the 1981 majority
The has decided laws, legislative intent prior evidences with all of the coverage obligations in Authority candidate impose upon the regulations. As to law and provided excess of those federal all aspects of its (according majority candidate exceptions, although gradation there are no there is some coverage) “fair, balanced, news required is to be and equitable” primary gener- towards all candidates circumstances, al governor, taking election for all of the whatev- be, er they may' into language consideration. The Court’s is not simply precatory, for any claiming pre- candidate unfairness is given sumably remedy through the courts.12 court provide if, circumstances, a remedy only all under he can *44 prove unfairly.13 that he been has treated compared
To be majority’s with the facile formulation of a standard that is Authority supposed (presumably the to follow thought meaningful, provide standard that is to be one that will guide an actual agents when the its have make and to concerning decisions coverage) thirty year candidate is the histo- ry subject Congress’ the treatment of this same and the thereof, interpretations many FCC’s along litigat- with the cases pursuant ed thereto. are There few tasks that have been found by Congress more complex devising to be intractable and than legislation and a set of for “fair” rules the treatment of candi- dates on TV. equal provi- The FCA started out with an time sion, 315, 47 subsequently interpreted by U.S.C. that was § 12Although majority, not discussed its intent is to create an obviously right. enforceable We assume it is to the by means appeal Appellate although actions, Division from the there are other Authority's possibilities. majority, It is unfortunate that the two election, weeks before the no provides guidance to on candidates their remedy. majority be, 13The notes there its no will under automatic or principle, right coverage; absolute to or “fair” specific kind amount treatment all that is and required. Cf. Federal Communications Act the decisions of the FCC which are inconsistent with this formulation. Where a candidate is given (and nothing time) free time on TV law the federal free and prohibits none of the to the time of the FCA other exemptions equal requirement apply, right candidates have a to obtain time in a to attract likely approxi- period opposing the same mately size audience as in which the candidate period Cablecasting, appeared. Primer Political 69 FCC (1978). 2d
FCC,
(Columbia Broadcasting System), 18 P. & F.
Daly
Lar
require equal time
all candidates
Reg.
(1959),
to
Radio
candidate covered was shown in a
particular
where the
even
was
“Equal
congressional
time” as a
standard
program.
news
tempered
it had to be
enough; experience showed
not
sense.
good
fairness and
common
exemptions
equal time
congressional
There followed
fairness,
315(a)(l-
designed
provide
provision
such
47 U.S.C. §
equal
obligations
4).
where
They exempted stations from
time
newscast,
complained
in a
coverage
of occurred
bona fide
documentary,
program,
interview
like. There then
interpretations
multiplicity
equal
followed a
of FCC
of both
proliferation
of dis-
obligation
exemptions.
time
and its
putes
ultimately the FCC was driven to the
was such that
long
coverage
in a
conclusion that so
candidate
occurred
etc., it
newscast,
documentary,
was
program,
interview
or format of the
automatically exempt, regardless
the source
degree
disproportionately
it
covered
or the
to which
others.
If included within an
one
to the exclusion of
candidate
concluded,
broadcast,
it
exempt
has
it is irrelevant
FCC
exempt
context. Broadcasters
would not be
outside of that
leeway
give time
those
whom
were thus left
candidates
cover,
others,
giving
no
they
while
less or
time to
wished
*45
simply including
exempt
the
in one of the
formats.
the
unless
question
And the
will not
broadcasters’ decision
FCC
“clearly
or in bad
it is shown that such a decision is
unreasonable
(1976); Florio
Reagan,
faith.”
58 FCC 2d
927
Citizens for
Committee,
(1977).
2d
deference
It is this that the it thinks has addressed requiring TV the and its station to be “fair.” It Yes, really has not even scratched the surface. it *46 by April in signed and the Governor passed by both houses then the 1981, primary the election. If about two months before for preparing were this event majority that our courts thinks absolutely no advance warn- they are Our courts had mistaken. no and experience probably made had ing, preparations, had no great expertise. They subject requiring expertise little in a were, expected adjudicate disputes according majority, nature, candidates, disputes complex the among 21 most required have asserted and resolution disputes that would been put immediately, questions cannot aside practically these study. for future perceived majority’s the conclusions is best unreality
The passed this recalling Legislature the the situation when Legislature The that the intended amendment 1981. notion obligation (for we April thrust this new assume agree no matter what it thinks the majority even would is, prepared for law neither the nor the courts were law) majority’s discovery hoc of this on the courts two post is incredible. What did the primary months before the election April two before the most intend in months complex, Jersey history? in New primary confused election adopt rules of answer is clear: it intended to settled federal FCC, some new ill-defined standard law administered not it. interpret enforce expertise with no one with spells group result chaos. One today, majority’s But even candidates) seek (there may 13 gubernatorial of candidates are courts, FCC, through Jersey’s through New relief another differing differing policies perhaps guiding results or “fair treatment” doctrine both. There is no basic “fairness” FCC, (as terms) guiding and there majority uses those same our courts. On the “equal guiding no time” doctrine complains where than candidate about dispute more one get no coverage, may go to the FCC and same failure of one relief; relief, appeals may be obtain the other to our courts and Circuit, while the pending Appeals in the in a Federal .Court Appellate Division in being samé issue is decided *47 Jersey. The the systems frictions between federal and state interpretation by majority inherent in this are to be de- plored.15 intended, Legislature believe,
What the wisely and we was to all problems commit of these to the FCC. As it indicated explicitly unmistakably, Legislature and only wanted federal substantive govern disputes law to coverage. about candidate It go would make little sense say to that far and then to that the federal interpreted by agency substantive law should be some in our own courts. The FCC had more than 30 years experience law, in developing that substantive had it given Congress power interpret been the Federal Act, 315(d), unparalleled exper- Communications it U.S.C. had tise in the field. It seems obvious that the intended disputes, FCC be sole arbiter of these and the federal only through courts the courts which could FCC determinations challenged. very pitfalls This majority’s case demonstrates understandable, obvious, conclusions. It is and that we are much better day educated Court on this issue than we were the case, we only first decided the study, after a few hours of but that is how most of these cases will to be short have decided: on notice, reflect, study with little time to courts ill-suited for the point Jersey Supreme task. The is that the New Court expert itself was essentially regulatory far from this field, yet we fundamentally stand now committed to a decision operating at variance with the rules of the Federal Communica- programs, including popular 15Several NJPTV’s most and informative News,” Jersey Nightly apparently cooperation produced “New are with presents programs. Channel which also these We do not know station independence imposed by programming whether the control over added venture, majority productive will but different affect this most sets station, applicable possibility injunctions rules now and the of court each one, might participation real Channel 13 want to review its with such a partner. regrettable vulnerable It would be if Channel 13 should withdraw Jersey Nightly and New News terminate. Commission, the same issue ruled precisely which tions staff, challenged program on which through its exempt regulation; was from the kind occurred Jersey to test to be used in New imposed by standard this Court part in In re Ann coverage played no its decision. See candidate Klein, 8330-B, (5/29/81). majority’s C5-860 Docket No. kinds, say inevitably to confusion of all conclusions must lead *48 public’s else are nothing a dilution of the confidence. How of Court, reasoning, through to people react when this strained totally a variance with the adopts standard of content review at acknowledged expert to be the in field? agency federal review- explain anyone can we to this Court’s assertion of How law, to leading such ing power in accordance with New clearly directs contrary in the face of a statute that principles, campaign coverage that be determined “in accordance federal law”?
III. How, by subjecting asked, might anyone it be can be harmed fairness, balance, a to to standard of to an a rule of a right, yet it requirement simple of It sounds so and so equity? only is is the doctrine of complicated wrong. so and so Not complex fairness of in the field of broadcast one the most regulation, only not is courts one of the most its enforcement tasks, but, judicial unrecognized, there is a apparently difficult interest, competing complicated compet- and another issue. The ing is of free the other issue is the press interest a and regulations programming, effect this sort on untrammeled coverage. enough say judgment, editorial and news It is not to press to defer- great those who value freedom of the newsworthy given judgments will to about what is ence be their coverage program- as the court reviews their and what is fair in ming, newscasting, editorial' determinations. Are our and judges they task? Will do it better than equipped for this past? other censors who have failed in the impact majority’s We mention the decision on the ability of the station to make its concerning own decisions freely, programming appeal particular not policy as an to but legislative as an aid to obviously compet- intention. There are ing values on involved: the one hand all coverage we want full Jersey elections, candidates in our is uniquely station provide coverage, such suited we want it be fair. regulations adjudicated Present federal law and well as as give decisions the FCC some us assurance that this will be think, but perhaps, enough. case we not We therefore look something A argument else. substantial presumably can made that it good policy impose require- such additional hand, ments. On the interpreting other the legislation —and we requires believe it really interpretation no further would —it minimize, be a done, mistake to the majority seems to have the impact of its on ability decision of this station thrive develop.16 only (in operators Not will its know not 16Some these concerns are outlined in a recent comment content regulation broadcasting: long “Broadcasters and commentators have con- regulation tended that existence of content inhibits the *49 controversial issues on radio and television.” “Comment: The Future of Regulation (1981). Broadcasting,” Content Cal.L.Rev. result, they argue, chilling is a effect broadcasters: According existence, chilling to those who its assert the effect has two components. expense dealing The first is the involved with an accusa- coverage. program dealing tion of unbalanced When a awith controver- presented, reply Normally, sial is issue for demands are time inevitable. refused; step, demanding parties are complaints these as the next the file complaints the FCC. While the FCC dismisses most without refer- ring comment, significant them the broadcaster for a number do reach the broadcaster. point expense begins. It is at this that the The broadcaster must devote key personnel investigation complaint, prepare the time of of to the the correspondence FCC, attorneys locally with the and consult both and in Washington. $20,000 activity more, This can cost a small broadcaster $100,000 major more than if a network becomes involved —all determine, instances, only provided in most that the broadcaster had an adequately coverage the balanced of issues. relevant adequate, If the that FCC determines this balance has not been the cost time, higher. is even The broadcaster must then devote valuable air often them) practical way guide they what standards are so as to, obligation since the covers absolute- supposed to conform but news, interviews, coverage, spots, ly gubernatorial all candidate like, documentaries, statements, and the there will never be a programming time when those who determine the station’s can decide, themselves, honestly sit discuss and down and just would be in the best interest of journalists, creative what coverage. They it comes to candidate will not when decide, themselves, convey effectively how to most be able to always presence what a all about. There will be the campaign is government sitting every meeting, influencing with them at through their and mandates. The creative decisions “standards” atmosphere of energy only that bursts in an freedom will be majority. stifled the rule of the speech protection We realize that the First Amendment has applied differently been to radio and television because of the opposing viewpoint. charge speaker, presentation at no of an This, course, programming the reduces the broadcast time available for advertising. broadcaster deemed more valuable or for chilling possibility component The second effect is the because it FCC will revoke or refuse to renew the broadcaster’s license Thus, every program present failed to desired time a elicits balance. request viewpoints, presentation for the of alternative the broadcaster must consider the effect of refusal on license renewal. The risk that its small; very impose actually possibili- FCC will such a sanction is however, ty, ignored. always present and therefore cannot be possibilities, surprising that the broadcaster Faced with these it is not issues, may especially coverage reduce the if it station’s controversial gone through complaint process way has In before. broad- probability undergo minimizes caster that it must such an ordeal. programming Because are tra- documentaries and other issue-oriented ditionally formats, chilling the least this effect as- lucrative broadcast greater significance. painful sumes an even It is much less to cut back on profit programming moneymaker. low than it is to cut a The result is “fastidiously very balanced few controversial issues” rather “uninhibited, robust, wide-open” than the debate envisioned *50 proponents (footnotes omitted)]. regulation. of content at 591-93 [Id. majori- impact likely The same on candidate is the effect ty’s rule.
173 special of characteristics these broadcasting electronic media. C., Red Lion Broadcasting 367, 386, Co. v. C.F. 395 U.S. 89 S.Ct. 1794, 1804, 371, (1969). 23 L.Ed.2d 387 But we believe that the Legislature, New Jersey having carefully the Authority created as an agency, autonomous independent of both the Governor and Legislature, the standard, never would have intended a such oppressive effect, imposed to upon its an Authority that it explicitly the charged responsibility to determine its own programming independently. 48:23-7(h). point N.J.S.A. Our here, however, is that if the majority proceeded has theory assuring that it doing is fairness to candidates without damage much to ability of this station and those who operate it develop dynamic image to the kind of personality that it truly compete will allow operate with stations that freedom, an atmosphere of it is mistaken.
The rule of the majority journalists will tend turn into bureaucrats, lawyers. Ed Murrows into We not do know now be, what its real impact effects will for the of these restraints on journalistic very period freedom is hard measure over short of agree time. It is purposes sufficient for our with the Supreme United States Court that: editing editing For better or for is for; is what editors are worse, selection and choice of material. That broadcast —can newspaper editors — and do abuse this is but that is no reason to power beyond doubt, deny Congress discretion taken in order to Calculated risks of abuse are provided. higher nothing new; values. these authors of risks
preserve presence Rights of Bill these risks were evils for which accepted reality sense there was no other of moderation and a acceptable than remedy spirit guaranteed who exercise the those responsibility civility part —and —on freedoms of Inc. National 412 U.S. Comm., 94, v. Democratic expression. [CBS, (1973)]. 124-25, 2080, S.Ct. L.Ed.2d implicit majority’s The restraint in the rule is substantial and one ordinarily impose, given this Court would its not history press, solicitude without for freedom *51 is none: There legislative intent.17 of a
strongest evidence opposite. quite the indeed there is
IV. intentions, majority has the case, the best of In this the most expertise the of beyond that is into an area ventured damage can be done if those greatest where the expert, an area extremely sensitive subject matter are not dealing with the promulgating that simple The faith problems the involved. fairness, allowing the “balance, equity” and standard of competing the will resolve that standard courts to enforce is mis- publication of coverage and freedom interests of fair middle satisfactory to find a placed. extremely It difficult is in these and total control absolute freedom ground between Authority considera- allow the matters. the Court would While upon all determining programming based its ble discretion circumstances, whether not at all clear it is the facts and circumstanc- some facts and reviewing entity will conclude that weighed and that sufficiently es were evaluated not It is considerable discretion. result constituted an abuse of that engendered by growth questions 17The First Amendment many, Canby, broadcasting “The First Amend- diverse and difficult. See are Broadcasting,” Implications ment and of Public the State as Editor: The political that control Tex.L.Rev. 1123. Not the least of these is the concern pro- dangers attending government “might magnify a broadcast medium self-perpetua- mulgation dangers point of a of view. The first of these ... threat, distinguishable, political power. but tion those in A second related actually preparing persons editorial freedom of is that of interference with the very omitted). (footnotes program offerings.” It was these Id. at 1151 Carnegie political to recom- Commission concerns about control that led Broadcasting Corporation as an be established mend that for Public entity. Report independent nongovernmental and Recommendations Television, Carnegie A Television: Public on Educational Commission expressed (1967) Program were for Action at 37. Similar concerns Jersey: Broadcasting is the New “It Public for Governor’s Commission on judgment government involvement Commission’s firm that direct department broadcasting kept a new state should be to a minimum and that political degree interference insulation from would not afford the desirable Jersey (1968) entanglements.” at 29. Public minority balance, bitter medicine to a candidate to tell him that fairness and equity only major allows him 15 minutes while given you, State, candidates are 20 hours. He say will that making known, are certain he will never your impression of him as an unknown is self-fulfilling candidate *52 prophecy,' your and that control of public the main channel of requires you your communications to do more in allocation of time than count of already the noses those who have heard of through him other major means. And the candidate will say it is unfair give to major a minor candidate what the candidate to deems simply excessive time because the station views a particular upon by issue the minor seized candidate one of overriding public at least that interest —or one station believes overriding public should become of interest. How do you you decide or do what is “balanced” “fair”? How review determinations, group these only complex which involve not a judgments simply factors and but also value that circumstances subject by any are not to consistent standard— review rational essential ingredient any system an to of administrative review. guidelines such vague With set of as “basic fairness” and “fair either, FCC, treatment” the courts will like the abandon their become, effect, ultimately completely, role the arbiter of coverage. is fair equitable campaign what and suggest We do not mean never there can be devised coverage workable standards of that tend to assure fairness and provide minimal interference the editorial freedom that is required perform if a station function of its essential however, serving public yet, It interest. has not been done opinion. it certainly majority and is not done in the The most efforts, likely majority’s result of all of the other besides herein, impacts adverse mentioned will be the transformation exciting is becoming providing what a vibrant television station coverage events, into of New issues candidates an increasingly segments dull of a cam- transmitter selected paign, by people selected more concerned with bureaucrats than editorial determinations judges who will review their programs. their from supposed to benefit with the that is that, in a case, appears to us it the record in this Based on coverage of situation, excellent provided NJPTV very difficult including us—concluded primary. This Court— last week of when, during the critical could even be better time prime give scarce the station campaign, we ordered absolutely though it had become even equally to all candidates them, regardless of the campaigns of some clear that the Every meaningless politically. merits, had become candidates’ of our campaigns because given to such prime hour of that time who mattered away the candidates was taken from decision was prime time hour every such public; pointedly, more more very much wanted to know away taken from very few thought important, and had it about the candidates hours left. we substan- campaign,
During days critical last those more about opportunity to learn tially public’s diminished *53 NJPTV, us, but the not the candidates that counted—not imagine the only can public. to the One candidates that counted of judicial supervision when that kind of damage that will result basis, is always emergent on an coverage, almost campaign majority’s it will under the applied campaign, as to an entire new rule, days. majority’s The just last few instead of to the rule, damaging prior judg- our while it leads to a reversal of ment, in this and future guarantees that our courts will continue station, the damage of on the campaigns to inflict the same kind candidates, public. and the in this determined yet, though specifically
Worse even not reasoning, case, majority’s irresistible conclusion from the the just campaign at time—our that from now on at all times—not 7(h) act as overseer of the station’s courts under will also Section coverage controversial issues. judg- Appellate Division’s in the reversal of the
We concur McGlynn’sprerogative writ action. ment in the dismissal of J., POLLOCK, concurring. result,
I reasoning, concur the but not the of the majority. significant. Wilentz, difference is With Chief Justice I Jersey believe that New the intended that NJPTV subject only political federal law its disagreement however, My majority, candidates. with the runs deeper.
Despite comprehensive regulation political. federal broad- casting, agency capable administered an of ensuring the precise today, result Court majority reaches holds that Jersey’s may independently courts review broadcasting journalists decisions of the of NJPTV. It reaches that conclu- sion by finding that state control over the content of the news is justified by ownership disagree. state of NJPTV. I
Historically relationship between the courts and the media one, has uneasy calling been an for careful balance of extraor- dinarily sensitive This particu- considerations. case involves a larly volatile attempting mix of interests. We are to reconcile a gubernatorial candidate’s demand access to the airwaves with the right federally of a licensed broadcaster to exercise journalistic discretion, keeping eye all while our needs complicated for information. This reconciliation is publicly-financed because the is a broadcaster television network providing only daily coverage significant of New news. Our even task becomes more difficult because of the pervasive existence of a federal regulatory governing scheme political broadcasting, carefully by Congress structured and en- trusted for enforcement FCC review the federal considerations, competing courts. probe deeply These which perception proper relationship one’s press, free judiciary interest, cause different members of this differently. Court to see the issues
I First, effect, problems Two merit attention. albeit unin- tended, NJPTV majority opinion be to convert into may a contrary the intention only is that result
public forum. Not Jersey Legislature, myriad but it creates a of the New Second, majority. regulation problems unforeseen law assures fairness for all con- broadcasting under federal NJPTV, political people and the of New cerned: candidates however, majority, Jersey. interpreted laws as State may preempted well be over-regulate broadcaster discretion and regulatory by the federal scheme. issues, helpful to state what discussing may
Before these it be was denied is not. It is not a case in which a candidate this case precluded using from all access to the television stations or was a case in which candidacy. the airwaves to advance his Nor is it significant publicly-financed refused to cover a broadcaster political campaign. majority The as much. Further- concedes more, political broadcasting should question is not whether fair, broadcasting political be fair. Of course should be Congress has assured and the fairness been United States question Federal Nor is the Communications Commission. broadcasting may regulated. may, It and federal whether case is pervasive regulation. law creates a scheme of What this superimpose its control of about is whether the should State My nega- answer is in the broadcasting regulation. on federal tive. majority opinion is that the inescapable implication of the
The State, NJPTV, with editorial entrusted the not implication is The further programming. discretion in television courts, State, may supervise the editorial through its that the my disagreement. dangerous prompts process. This doctrine II opinion is that it My majority concern with the fundamental letting problems about opens a Pandora’s box loose unforeseen Initially, stations. I believe public access to television majority opinion threatens to convert NJPTV into path “public to a forum” is over uncertain forum.
179
ground
enshrouded
the mists of the First Amendment.
cases, however,
Recent federal
demonstrate
reality
converting
public
risk of
a
television station into a public forum.
In Muir
Com’n,
v. Ala.
Cir.,
Educational Tel.
(5
In Barnstone v.
F.Supp.
(S.D.Tex.
Univ. of
514
670
1980)
Cir.,
(appeal pending,
81-2011),
5
No.
the court concluded
that
public
television
public
station was a
forum. The court
public
wrote: “a
place
(1)
forum is a
that
is
controlled
government
(2) appropriate
place
as a
for the communica
political
tion of views
significance
on issues of
and social
....
question
There is no
that
precisely
KUHT—TV is
place.”
such a
I recognize
twice,
that the
discussion,
FCC has
without
noted
publicly-held
subject
noncommercial broadcasters are not
public
City
forum doctrine.
Municipal
See
of New York
169,
System,
(1975) (“the
56
public
F.C.C.2d
170
forum doctrine
inapplicable
licensees”);
to broadcast
Missis
sippi Authority
Television,
1296,
for Educational
71 F.C.C.2d
(1979). Furthermore,
n.23
1312
the United
Supreme
States
Court has not
degree
governmental
determined the
involve
ment necessary
finding
to result in a
of state action and conse
quent
public
conversion of a
television station into a
Nonetheless,
forum.
Broadcasting System
in Columbia
v. Dem
(“CBS
ocratic
DNC”),
94,
National Committee
v.
93
U.S.
2080,
(1973),
S.Ct.
was sufficient least permitted opportunity express “individuals be some their views on issues over the electronic media.” Id. at *56 Marshall, JJ., (Brennan dissenting) (emphasis at 2136 S.Ct. 149-150, J., (Douglas, in at 93 at 2109-10 original); see id. S.Ct. case, concurring). deciding the constraints of this we Under need not whether NJPTV is a determine forum. The nonetheless, decision, majority question raises the whether the own, operate regulate State could NJPTV without convert- ing it into a implication majority forum. One “obligated decision is that NJPTV grant could be the de- air, subject only mands of all citizens to be heard over the ” ‘time, regulations place reasonable as to and manner.’ CBS v. DNC, J., supra, (Stewart, at U.S. S.Ct. at 2104 concurring). Legislature I am confident the never intended that result.
Ill Legislature agency The NJPTV to be an autonomous intended free Concededly, from its control and that of the Governor. Legislature agency could have created an that an arm of was believe, however, State. I created federal, NJPTV as independent subject an broadcaster but state, regulation. not inevitability
This case makes manifest the of conflict in dual regulation political Here, of broadcasting. Appellate Divi- sion ruled that NJPTV must include ail candidates in the Closer part Jersey Nightly Look of New News. This Court affirmed. decided, however, The FCC that NJPTV need not include all gubernatorial Klein, candidates in Closer Look. See In re Ann 8330-B, 29, 1981). Now, Docket (May No. C5-860 five months later, this agrees right Court that NJPTV and the were all FCC is, along. That this Court now determines that NJPTV could have leading broadcast the Closer Look with the candidates only. contradictory These decisions do not exhaust the contra- if, that may dictions occur in the spring, future. What last federal courts had reversed the FCC while this Court had Appellate reversed the In discussing possible Division? permu- one only by scope tations is limited imagination. of one’s abiding problem majority decision is journalists of will NJPTV exercise their speech freedom of judicial under a of sword Damocles. As Chief Justice Wilentz (ante 148), at NJPTV may in-depth
demonstrates abandon leading superficial coverage candidates for all Thus, judicial candidates a crowded field. may intervention journalistic paralysis. lead to The real the people losers are may deprived who of information about those gubernatorial they candidates in whom most are interested.
A conflict
regulation
between federal and state
political
broadcasting
questions
raises substantial
preemption.
A
is preempted
regulation
state law
where
pervasive
federal
is “so
*57
as to make reasonable the inference that Congress left no room
supplement
for the states to
it.” Rice v.
Fe
Santa
Elevator
218,230,
Corp.,
1146, 1152,
(1947).
331
67
U.S.
S.Ct.
This deference to the broadcaster is the “nearly result century congressional a half of unmistakable 182
purpose to maintain —no matter how difficult the task —essen journalism tially private only broadly broadcast held accountable DNC, supra, interest standards.” v. 412 CBS U.S. at 120, respect, judgment at 2095. In this the editorial S.Ct. is entitled to the same television station deference as private Community-Service Broadcasting that of a broadcaster. Mid-America, C., 1102, (D.C.Cir. F. Inc. v. C. 593 F.2d 1978) (en banc). however, majority, supple undertakes to ment, supplant, regulatory if not the federal scheme with its own amorphous test of “fairness”. I see no room or need for a superimposed state fairness doctrine on a federal fairness stan designed part delicately system dard of “a balanced regulation intended to serve the interests of all concerned.” DNC, supra, v. CBS 412 U.S. at at 2086. S.Ct. Thus, disagreement my applied, focuses on the rule to be not application judgment of the rule. I would reverse the Appellate complaint. Division and dismiss the
WILENTZ, J., POLLOCK, J., concurring C. in the result. For reversal n —Chief Justice WILENTZ and Justices PASH- MAN, SCHREIBER, HANDLER, POLLOCK and SULLIVAN —6.
For affirmance —None. notes circumstances, complexities, differing interplay of fac- tors that affect a not might decision one instance and another, might the circumstances that result in one candidate other, getting repre- but of simply less time than all that recognition complexity problem sents obvious providing it. without a solution for majority impose upon What the has done courts duty solving problem Congress immediately a and the have been years. say FCC not able to solve for 30 We “immedi- ately” legislation majority part which the finds was statutory imposed obligation was scheme this new Issues, Repeal Airing 14FCC Chief to Seek of Two Rules on The New Times, 16, 1981, 21; September Equal-Time Disagreement York at § A An Rules, 18, 1981, Times, F. C.C. The New York October 4 at § IOE.