News America Publishing, Inc. v. Federal Communications Commission, the Committee for Media Diversity, Wilbert A. Tatum, Intervenors

ROBINSON, Before SILBERMAN WILLIAMS, Judges. Circuit Opinion Court filed Judge Circuit WILLIAMS. Opinion

Dissenting filed Circuit Judge ROBINSON. Squadron Howard M. and Burt Neu- WILLIAMS, borne, Metcalf, Judge: whom Circuit with Slade R. New City, York Michael R. Gardner and James passed On December Denvir, D.C., Washington, P. on the were signed 471-page and the President Con- brief, appellant. 1,194- tinuing (printed only in Resolution Counsel, Killory, Diane page Report) appropriating S. Gen. Conference all Armstrong, government whom Daniel M. Associate funds for the federal year for fiscal 1988. Pub.L. No. Commission January 1988 for exten- page 101 Stat. 1329 On in a sions of its waivers. The Commission de- paragraph 379-word entitled “Federal requests 19,1988, nied the on January find- Communications Commission Salaries and barred such Expenses,” proviso sandwiched between a declining extension and to consider News concerning assignments channel VHF petition America’s or its constitutional chal- educational stations a restriction on lenges to the Amendment. News America areas, systems in telephone cellular rural Inc., Publishing, slip FCC op. at 2 following provision: appeared the (Jan. 19, 1988). Naturally it did not reach Provided, further, that none of the funds the merits of News application. America’s Act appropriated this or other Act petitioned review, News America for mov- repeal, may retroactively be used to expedited for treatment stay and for a in, apply changes begin or to or continue granted of the FCC’s order. We both mo- a re-examination of the rules of the Fed- stayed tions and ruling the Commission’s eral Communications Commission with days until 45 following our decision this respect ownership common of a appeal. daily newspaper a television station The critical last 18 words of the Amend- grade where the A contour of the tele- general ment are in form but in reality; not encompasses vision station the entire they single publisher/broadcast- burden a community newspaper in which the er. We conclude that under the First and published, period or to extend the time Fifth Amendments we must scrutinize such grants temporary current waivers legislation under stringent a test more than compliance to achieve with such rules_ rationality” typical- “minimum criterion ly used for legisla- conventional economic Making Continuing Further Appropria- equal protection analysis. tion under Al- Ending Septem- tions the Fiscal Year for though Supreme the decisions of the Court 30, 1988, 498, H.Rep. Cong., ber No. 100th and this circuit leave some doubt as to the (1987) ”) (“Conference 1st Sess. 34 Report exact characterization of proper stan- added). (emphasis provision’s sponsor The dard, any appreciably that is more strin- Hollings, was Senator and we will refer to gent rationality” requires than “minimum Hollings it as the Amendment or simply the challenged phrase.1 invalidation of the Amendment. As of December the sole any temporary holder of waiver of the sort specified in phrase the italicized was News Background I. Publishing,

America Inc. Under the natu- ral and we think reasonable construc- The newspaper-broadcast FCC’s cross- phrase, tion of the its sole effect was to ownership provides generally rule that the forbid extension of those waivers. may grant Commission a television Amendment, Despite party broadcast license to News America a who owns or applied to the Federal daily newspaper Communications controls a in the same challenges intent, primarily 1. News America legislative also the remainder one of informed Amendment, Hollings general of the presumption severability. Regan which forbids FCC v. Time, newspaper-television Inc., 641, 653, re-examination 468 U.S. 104 S.Ct. cross-ownership proviso ripe (1984). rules. That is not Although 82 L.Ed.2d 487 the two for review at this time. See Abbott Laboratories parts tangentially of the Amendment are relat- Gardner, 136, 149, ed, v. 387 U.S. 87 S.Ct. we see no indication that would (1967). L.Ed.2d It is far from clear part not have enacted the first of the amend- that, opened the FCC once has its door to Valeo, News Buckley ment without the second. See v. application, America’s the Amendment’s barrier 46 L.Ed.2d 659 rethinking cross-ownership to FCC of the rules will be an obstruction to relief. Because we do not reach News America’s not, moreover, challenge part We do to the first believe that the two Amendment, portions challenged Amendment must stand references together. question phrase or fall The of whether one or clause refer to the last 18 words part of a statute is severable from another is of the Amendment. 73.3555(c). community.2 grounds 47 C.F.R. theme of the last two § is obviously however, has, provided grant Commission for a waiver where enforcement of permanent both waivers of the rule would defeat rather than advance acquires goal the rule. If broadcast licensee diversity. of media Indeed, practice daily newspaper, upholding Commission’s rules automatically grant against attack, waiv constitutional year er one explicitly until the license renewal Court noted that the availability Report date, longer. Second whichever is of waivers —where the station and paper Order, & 50 F.C.C.2d 1076 n. 25 could not survive without common owner- (1975). Temporary of varying du ship the reasonableness “underscore^]” — newspaper rations are also if a available of the rules. FCC National Citizens publisher acquires a broadcast station. Committee Broadcasting, See, e.g., Television, Metromedia Radio & n. 2115 n. Inc., (1985), 102 F.C.C.2d (1978).3 L.Ed.2d 697 aff'd Policy Health & Medicine Research Report Although the Second & Order Group v. (D.C.Cir. 807 F.2d 1038 provided permanent also for waivers of the 1986). newspaper-broadcast rule, cross-ownership grant

The to Report Order, discre- Second ready Commission is & 50 F.C.C.2d at tionary any 24,1085, waivers or extensions on of n. 1076 the applicant burden grounds. several The having permanent owner’s for a to waiver is considerably sell at a is one. Second price distress for heavier than a one. Health Order, Report & 50 F.C.C.2d at 1085.. An- Policy Group, & Medicine Research 807 showing “separate 1042-43; other is a owner- at F.2d FCC Brief 27-28 n. 10. ship operation once, and of . newspaper a Only involving and in a “highly case un- supported facts,” station cannot be in locality.” 10, the usual FCC Brief at 28 n. has the Finally, the Commission allows waiver actually granted permanent Commission a when “for whatever reason” the purposes newspaper-broadcast of the cross- of the rule would be best served by ownership contin- rule. See Field Communica- joint Id. The ued Corp., ownership. (1977).4 tions common 65 F.C.C.2d 959 2. The rule 3. News America granted waiver tutionality. 47 C.F.R. § repurchase to retain both a cations, cross-ownership role station to another station at the time of the quently In Field computed in accordance with § party directly No license for an compassing such license will controls a station ing such (3) grandfathering reach ^[*] in all procedure newspaper affairs of the station. Field then reac- transferred a parties shall permanent corporation ^[*] the issue. Grade A contour provides its interest and Communications, 73.3555(c). daily the entire be light or under ^[*] rules is essential party granted newspaper vigorously argues provisions, newspaper indirectly result in: in relevant of our AM, FM, to Field Communi- waiver published. controlling that, common if but reserved in community to retained promulgation 1975. Field subse- aas disposition owns, any ^[*] for had been allowed and a the Commission or TV broadcast consequence control) part: interest in the party a .the rules’ consti- ^[*] operates, TV 73.684, significant television in which we need grant (includ- right station, if such en- of for a Field pears be faulted for of relief. tection. concomitant of the other licensee the ity L.Ed.2d 470 Administrative Law Treatise more than a quired futile. See Louis-San Francisco 89 S.Ct. States, tion 769 F.2d Cutler v. (1983); Utilities 1987); In view of permanent such v. Communications, permanent to permanent Burford, the station Atlantic see also Skinner & Comm’n already have treated the 534, 539-40, application 98 Hayes, It Honig party. pro L.Ed.2d 686 (1958); any 835 F.2d waiver as a Richfield hard exceedingly approved waivers, forma of California v. 21 L.Ed.2d 519 failure to exhaust that avenue 818 F.2d waiver, as original (D.C.Cir.1984); In —Doe, Ry. a would more National assessing result 65 transfer of control to a conceive Co., Co. v. News America cannot reacquisition (1988); the Commission F.C.C.2d at for Eddy Corp. grandfathering pro- restricted availabil virtually U.S. —, § of cross-ownership, v. 26.11 Dep’t Energy, Wildlife the the (D.C.Cir.1987); (1969); a United Glover v. St. 63 L.Ed. 772 K. case where application liquidation inevitable at 464-68 obviously 961, (D.C.Cir. 108 S.Ct. Davis, 4 Federa States, Public United little ap- 2 corporation is a controlled compliance,” America five remedies to Me- News assure tromedia, Murdoch, recently Rupert presum- natural- 102 F.C.C.2d K. ably including citizen with extensive broad- loss of the ized American WXNE-TV li- holdings Australia, cense. newspaper cast and America. Murdoch Europe, and North also Counsel News America in- Television, (“Fox”),5 Inc. Fox controls formed us it sold the Post letter that television numerous stations

which owns appearing effective March thus to moot throughout the United States. newspaper its claims as to that change nothing, WNYW-TV. This does 1985 and In November November however, to moot News America’s constitu- permission acquisi- FCC for its Fox secured to the Herald challenge respect tional licenses, respectively, tion and WXNE-TV.7 City York New and WXNE- WNYW-TY TV in Boston. Because News America primary News America’s claims8 lie at owned the New York Post Boston and the the intersection of the First Amendment’s Herald, acquisitions required these protection speech Equal free and the rule, which the requirement Protection Clause’s (two granted years Commission government afford similar treatment cross-ownership, New York 18 months for similarly persons. (Although situated Boston).6 Metromedia, F.C.C. Equal Protection appears only Clause (New York); Twentieth Hold- 2d at 1353 Amendment, applies the 14th which ings Corp., (1986) (Bos- F.C.C.Rcd. states, Court has found its 6, ton). Time ran out on March 1988 for essential mandate inherent the Due Pro interests, York New and absence cess Clause of the Fifth Amendment and of waiver extensions will run out on June applicable govern therefore to the federal 30, 1988 for those in Boston. Bolling Sharpe, v. Unless Mur- ment. 74 (1954).) doch sells the Herald or WXNE-TV or S.Ct. 98 L.Ed. 884 Where relief, secures Fox legislation affecting speech appears will face “administra- under- (1919) (exhaustion necessary only disposition where there March 10 that News America’s exhaust); appropriate is an avenue of relief to argument ap- Post moots the entire claim. Its Jaffe, L. Judicial Control of Administrative Ac- pears alleged to rest on substantive defects with (1965). Quite apart tion 426-28 from the nar- petition News America's for extension of its availability permanent general- row ly, of waivers argument evidently Boston waiver. The a altogether suppose it is unrealistic to an that suggestion that we should avoid the constitu- agency congressional as sensitive to desires as affirming question by tional the Commission’s FCC, Corp. see Meredith v. 809 F.2d grounds action never addressed the Com- (D.C.Cir.1987) (Commission & 872-73 n. 11 may Chenery mission. This not do. SEC v. we argument language counsel observes at oral that Corp., 318 U.S. 87 reports legally, in committee "did not them bind (1943). L.Ed. 626 Nor would a remand to the matter’”), practical grant ‘as a would Commission to consider the merits serve permanent waiver where indicated Hollings purpose; under its view that hostility temporary to extension of even a one. constitutional, Amendment it would never previously 5. Fox was known as News America reach them. Television, clarity, Inc. For the sake of we refer entity throughout simply to this as "Fox.” See 8.News also contends that the last 18 America Policy Group & Health Medicine FCC, Research v. (1) words of the constitute (D.C.Cir.1986). 807 F.2d 1040 n. 1 Attainder; (2) a forbidden Bill of violate certain involving 6. The transaction the sale of WNYW- (3) principles separation powers; effect a TV from Metromedia to Murdoch also included taking property adequate compensa- without WFLD-TV, Chicago the transfer UHF sta- Amendment; (4) tion violation of the Fifth tion, to Fox. At that time News America also violate the Due Process Clause of the Fifth Amendment; Chicago major daily, Chicago owned Sun- (5) presentment and violate the sought Times. Fox therefore and obtained a clause of Article I because the President was Chicago two-year properties waiver for the given "meaningful” opportunity no to veto it. waiver, obtaining after well. Four months unnecessary We find it to address these conten- however, America sold the News Sun-Times. tions, however, finding of a in view of our speech equal protection violation of free Diversity Intervenor Committee for Media ar- gues guarantees "Suggestion First and Fifth Amendments. in a of Partial Mootness” filed Meaning i.e., inclusive, singles out some where II.The of the Clause treatment, leaves adverse conduct for final words of the conduct seems indistin untouched Amendment forbid the Commission from in terms of the ostensible guishable law’s “extend[ing] the period time of current the omission is bound to raise a purpose, grants waivers to achieve target the law’s true is the suspicion that compliance newspaper-television with [the Accepting cross-ownership without message. intuition Re- rule].” Conference port (emphasis added). at 34 leg actual On their face making determination of apply only these words newspaper-tele- motives, Supreme Court has islators’ vision waivers in effect on regulation speech insisted for the enactment, i.e., the two held Murdoch. apparent closer fit between a law and its purpose legislation. than for other See Committee Intervenors for Media Diver- — (“CFMD”) Project sity Tatum,10 Ragland, Arkansas Writers’ v. Wilbert A. however, U.S. —, 1722, 1730, argue “current” insert- L.Ed.2d ed ensure only to the Amendment (1987); Minneapolis Star & Tribune application would have retroactive News Revenue, 460 v. Minnesota Comm’r Co. America’s waivers. On their view 592, 103 1365, 1375, S.Ct. 75 L.Ed. U.S. apply parties Amendment would who all (1983); Dep’t Chicago 2d 295 Police v. during hold fiscal Mosley, S.Ct. year. 10; CFMD Brief at Brief at Tatum 13-14. complicate analy- Two circumstances our avoiding The interest courts’ constitu- First, not, sig- sis here. two intervenors — influence questions tional must of course the chal- nificantly, FCC—contend that statute; not, our construction of the it does lenged potentially upon clause bears other however, require Olympic exegetical acro- publisher/broadcasters than Murdoch.9 Schor, batics. CFTC Second, special broad- characteristics of (1986) S.Ct. 92 L.Ed.2d 675 casting give led the Court (courts may ignore legislative inwill Congress greater reg- latitude broadcast adjudication). order to avoid constitutional legislature any ulation than or state accept To intervenors’ construction would (or enjoy regulation printed would First, require less. has a no “current” non-broadcast) speech. other find that We meaning ordinary usage; in well-accepted only in fact the clause Murdoch. covers Dic- Webster’s Third New International Further, we believe that even in broadcast (1981)defines “occur- tionary the word as regulation the First and Fifth Amendments belonging in ring present in time: or better fit and its demand a between the law operation evidence or actu- in the time legitimate purposes can (emphasis asserted than we add- ally elapsing.” Id. at 557 ed). only grants in effect find Amendment. of waivers Television, sought by Citing protected regulated 9. decision in Inc. to be our Central interests (D.C.Cir.1987), F.2d Congress, v. 834 186 intervenor need not CBS but reach the issue. ("CFMD") Diversity intervene, for Media also Committee argues raising arguments as to Inc. seeks to jurisdiction we have to hear no constitutionality of appeal News America’s because News America inter- rules. We need not examine whether its challenging conditions attached its broad- to rules, sufficiently by as affected those ests are CFMD Brief at This is cast licenses. silly. 13-15. 1, supra. unripe. we issue See note find that challenges America News Civil Liberties Union Founda- The American extensions, Amendment’s restrictions on waiver Union, tion New York Civil Liberties and the not the terms of the initial waiver. Newspaper the American Publishers Association standing two on the These intervénors have Newspaper and Union and the Mail Deliverers’ basis the mem- of their claims that Tatum and Vicinity have filed amicus of New York bers of CFMD viewers and readers affect- America; Speaker support of News briefs newspapers. ed standing stations Tatum also claims Leadership Group Bipartisan U.S. Post; potential purchaser as a Representatives amicus House of have filed an buy party hoping paper we doubt whether a to support of the FCC. brief in advantageous prices zone of within the 806 U.S. —, 107 1987 were News Amer- S.Ct. 94 L.Ed.2d

on December (1987). temporary any event, waivers which language 434 as the ica’s; other during the course of the granted clearly not decide might way be does the issue in the 22 could not on December 1988 year urge, fiscal accept intervenors we must the Com grants.” In the “current be described plainly mission’s reasonable view. Chev ambiguity statutory lan- absence ron U.S.A. v. Natural Resources Defense plain give must effect to the guage, we Council, 837, 842-45, S.Ct. Congress has cho- meaning of the words 2778, 2781-83, 81 L.Ed.2d 694 v. La Mutual Jolla sen. Escondido Water language, With common sense and the Indians, 466 U.S. Mission Band of them, against Commission intervenors L.Ed.2d 758 S.Ct. point Congress approx- to remarks made in Turkette, (1984); States v. United imately Continuing one month after 576, 580, 101 S.Ct. adopted. Though at first Resolution (1981); Safety Product Consumer Hollings stated that his Amend- Senator Sylvania, 447 U.S. GTE Commission v. Murdoch, applied ment see 2051, 2056-57, 26, 1988), Cong.Rec. (daily S63 ed. Jan. he Artists, (1980); Scenic L.Ed.2d 766 United day field the next and asserted reversed Al- Brotherhood Painters & Local applied any future that it also NLRB, Trades, 762 F.2d AFL-CIO lied might granted: waivers which (D.C.Cir.1985). 1027, 1032 n. 15 everyone I want to make sure under- Second, agency can “extend” why I authored this law. This stands of extension. that exists at the time waiver purpose law serves the useful of ensur- “current,” the clause the word Without ing that the intent set forth the first any extension that the Commis- would bar amendment, half of this that the FCC not provide during the ef- might sion wish existing perma- modify the criteria Resolution, Continuing period fective waivers, through the nent not be evaded Septem- until i.e., December grants successive waivers. Thus insertion of the modifi- ber applies any any extension of tem- This unnecessary quite to assure inclu- er was just And, porary granted, which is had member of sion of Murdoch. held legislation outstanding temporary waivers with the en- familiar fear now raised inter- Mr. Murdoch. tertained the venors, natural solution would have 27, 1988). (daily at S139 ed. Jan. Sena- and future” tem- specify “current been Kennedy tor echoed this view: cannot read “current” porary waivers. We time, emphasize same I want to At the and future.” to mean “current not directed the amendment was Third, Commission, the the which is Murdoch or his waiv- specifically at Mr. administering agency charged the ers, persons at all who would be but statute, interprets the word “current” un waivers, situated, all similarly and at solely surprisingly apply to to future, or in the in situations where now outstanding at the time the Con Murdoch would be persons such as Mr. passed. Brief tinuing Resolution was FCC cross-ownership the seeking to evade (At argument the Commission’s at 34. oral exemption by obtaining permanent a rule explicitly that the Counsel stated General guise a series of in the of the views of the Commis represented brief waivers. sion, Transcript just lawyers. its of not 26, 1988). (daily ed. Jan. Id. at S59 36.) we Argument Oral at We doubt could courts ordinary circumstances Even if accept view even the Com intervenors’ weight post-enact- give or no to such little it, language for the re mission endorsed Re- Regional Rail ment statements. See solves the issue. See NLRB v. United — Cases, 419 U.S. Union, Act organization Food & Commercial Workers (1974); 335, 353, 42 L.Ed.2d 320 —, — Young, 831 F.2d (1987); Fonseca, Public Citizen INS v. Cardoza (D.C.Cir.1987). timing the Hollings Here ren- Amendment solely was directed at suspect. still more At Rupert the ders statements Murdoch and his holdings. media adoption, the Amendment time had the of The two brief remarks of Hollings Senators in any comment whatsoever Kennedy received no on the meaning of the or on congressional committee the floor of during Amendment occurred debate pro- mention of the either house. Symms’s Senator Steven amendment to a Report in the Conference vision re- rights civil bill—an amendment which language of the exact statement the repealed would Hollings Amend- (except that the Amendment word “rules” Except statements, ment. for those two Continuing Resolution is replaced by the discussion entirely focused almost “regulations” Report). Murdoch and his temporary waivers. Conference See Report very at 504. Its existence was Cong.Rec. (daily S54-69 ed. Jan. indeed, legislators; known to a few 1988); (daily id. at S138-47 ed. Jan. sponsors apparently the Amendment’s ne- 1988). Symms began Senator the debate glected to inform either two Sena- on his discussing Murdoch, amendment from the home tors Post’s state the effect the Hollings Amendment-on junior Senator from Massachusetts of the waivers, his and the First Amendment ram- Amendment or its effect. intended 134 ifications of what he called “the anti-Mur- (statement Cong.Rec. at S54 of Senator Cong.Rec. doch measure.” 134 at S54-55. (same); Symms); at at id. S55 id. S64 Hollings Senator then took the floor to (statement Packwood); of Senator id. at explain really “what is involved about the (statement D’Amato); S140 of Senator J.A. so-called of night rights dark and the civil 34, 38, 39, 40, accounts). (newspaper at of Mr. Hollings Murdoch.” Id. at S56. generally, days Once discovered a few af- per- addressed himself first to what he enactment, Hollings ter problem: runaway ceived “a ani- and its evident focus on Murdoch drew quoted inmal the FCC.” Id. He a 1985 sharp press attacks from the and fellow promising letter from Murdoch seek legislators. (newspaper See J.A. 30-71 permanent waiver and Mur- discussed accounts). Asserting the unconstitutionali- participation in doch’s the Freedom of Ex- Amendment, ty peti- News America Foundation, pression public interest January tioned the FCC for extension on group petitioned had the Commission 14, 1988 and filed this January lawsuit on repeal rules.11 21, 1988. The statements of Senators Holl- explained Id. at S57. then ings Kennedy approximate- were made procedure by which his amendment was later, ly knowledge one week with full Resolution, Continuing added to the the existence this lawsuit and News rebut, attempted paragraph by para- legal Cong.Rec. America’s claims. See graph, preamble Symms’s Senator (Senator (Sen- Hollings); id. at S59 S139 highly amendment that was critical (Senator Hollings); ator id. at S144 Kenne- Hollings origins. explain- Amendment’s short, dy). In simply there is no evidence amendment, Senator stat- post-enactment repre- that these remarks ed that congressional understanding sented at the Fowler, former Chairman [Mark time of enactment. party: said at his retirement “The FCC] Indeed, gift gave Chair- post-enact- greatest anybody text of full discussion, ment Senate whatever its man the FCC was 18-month weight, everyone Rupert And serves to confirm our view that the to Murdoch.” daily newspaper 11. Both Senators Hollings Kennedy ap- publishers, broad- and numerous licensees, peared newspaper trade to believe that the FEF was little more cast and broadcast associations, organization working corporations. J.A. at than Murdoch front and other instance, See, e.g., Washington and the concert with News America. Cong.Rec. 307. For Post id. (Senator major Hollings); organization at S57 are contribu- S59 Times Mirror id. (Senator tors; (same); Kennedy). apparently relatively percep- is a That News America Reply at 11 n. tion is not borne out in this one. News America Brief the record case. minor nonprofit organization supported by is FEF mediately “Whoopee.” lengthy That is from that statement to a said clapped and doing interests, description business—cash and of Murdoch’s media way we extensions, at the Federal Commu- and his waivers and carry downtown what he called “Murdoch’s effort to sub- nications Commission. Specifical- the rule” in the FCC. Id. vert stop it. to want Kennedy ly, stated that Senator Hollings continued: Senator at S58. Id. widely anticipated It was that Murdoch defended. He went to Murdoch go petition would behind [the FEF] get He to already. knows how court to extend his to and ask the FCC spurious nonsense of injunctions sell the New York Post and the Boston provision pro- constitutional some proceedings Herald until new FCC to him. only vides [sic] cross-ownership on the rule were com- The Senator concluded stat- at S59. Id. pleted. ing that circumstances, I In these went to Sena- appeared opposition [N]obody urged tor and him to save the cross-ownership rules other than this cross-ownership rule. Rupert Murdoch. sneaky operation of Kennedy made other referenc- Id. Senator prevaricator Now, out that the I found “Congress has learned the es to Murdoch: gotten high has manipulator and the way skeptical anything hard to be about and editorials ... the headlines road of does,” 60; says Mr. Murdoch id. Id. “Murdoch should never have received recognized. Kennedy then Senator was place, waiver in the first let alone a waiver joined noting that he had Senator After unprecedented period years,” for the adding the amendment to the Hollings in lock, id.; agency captured had been “[t]he Resolution, Continuing he stated that Murdoch, stock, by Rupert and and barrel preserve to the cross- action was intended step long past to it was time said: ownership rule. He then in,” Kennedy concluded id. at 61. Senator question is The fundamental whether Hollings Amendment his discussion of the to thumb his Rupert Murdoch is entitled by asserting “Rupert Murdoch does only nose at that law and become exemption the cross- not deserve an in America who can newspaper publisher wrong ownership it would be rule—and keep and his buy a television station give him one.” Id. Congress or the FCC to community. newspaper in the same Symms replied then to Senators Senator Mr. Murdoch well aware response, Kennedy. Sena- sta- acquired law he his television when Hollings conceded that his Amendment tor York. He had a tions in Boston and New “Yes, it only News America: would affect then, a choice now. choice and he has he is the Mr. Murdoch because affects newspaper he can keep He can his —or repeal the rule rather trying one But he keep broadcasting his station. original in his letter than what he said both_ keep princi- cannot them Wirth, Congressman then Wirth Senator ple Murdoch is right Rupert —and side, intent was to that his full the House wrong try change it. Instead comply.” Id. at S63. me, explain attacking try to he should why exemp- he thinks he’s entitled to an joined the discus- Wirth himself Senator tion from the law. describing his After sion soon thereafter. power- past dealings the most Murdoch as chairman

Mr. Murdoch is one of world, publishers and he has and insert- ful relevant House committee record, ignore the using powers those into the been a letter from Murdoch Congress, equities will subvert himself to “the Wirth addressed rule. evade involved in this”: gotten a waiver Mr. Murdoch has stated Although Kennedy then Senator is mechanisms through variety a spe- now that “the not directed amendment was waiv- get permanent a full Murdoch,” id., attempting im- to cifically at Mr. he went cross-ownership Tell past er of the rule. me wrangles with Murdoch as a member that is. how fair the responsible House committee telecommunications, then and stated compared at Senator Mur- Id. S66. Wirth Who he to is think he (an- going that is to CapCities doch’s actions with those of be able to sneak around this set waiver) of rules other holder a and nonprofit whether he up sets a organiza- subject then to of Murdoch returned the tion, fairness, a tax and [sic attacks?] alone: — position, his goes advocates whether he had a for 2 Mr. Murdoch has around a very high-powered with lot of going years. He knew he when whatever, Washington lawyers, or bought Metromedia owned those going that one man is to be able to newspapers what the rules were. We obviate these rules. [sic] explained my them him in He to office. “I wrote back and said know what the Id. at S141. Wirth then contrasted the say, Capital rules are.” Then he went on to “I Communications, conduct of Cities going perma- have “an corporation,” no intention of after honorable American with Murdoch, nent waiver.” of “Rupert that who arrived here from Finally, Australia.” Id. Senator what he He Now has done? has again Wirth indicated that Amendment gone perma- turned around and after a was directed at “one individual”: years enough nent time waiver. Is enough go time to out and sell those What this issue is is one about whether newspapers to going avoid individual is to be able to circum- problem? clearly vent a laid out set of rules regulations, go- whether one is individual Finally, attempted Id. at S67. Wirth to ing to be to able end-run intent defend the Amendment’s exclu- Congress; the intent of whether on sive focus Murdoch’s stations: individual, having clearly one stated he question The by second raised the Sen- going divest, to go will be allowed one, [Symms], good is, ator from Idaho back on his word. why provision just this focused on Id. S142. is, question these two stations? The

Why these two stations? We note that one Senator made everybody explicit

The answer is else com- reference to content Mur- plied except Rupert publications. with the rules Mur- doch’s Senator Lowell Weick- er, why doch. That is on urging Symms’s proposal it is focused these that Senator nothing tabled, two stations. It do has to with stated: politics It Massachusetts. has who, innuendo, by one has been [A]s nothing to do with editorial It cartoons. through dragged Mur- the mud Mr. do everybody has to with fact doch, up morning as one who woke one complied else law. The I spy had a nest read that Communist people who complied have not with the intern, my young office because a law are the which group, Murdoch somebody unpaid, happened to talk get trying permanent this waiver. I Washington, the streets can assure why That is just this is focused these you it comes media owner- when people. States, ship my United doubts nothing citizenship. his to do with Id. just is the No. 1 dirt probably think he Symms’s The Senate debated Senator bag any publications owner of or media again proposal following day. Senator in this Nation. York, D’Amato New concerned might result Post, closure of recently imminent rose to criti- hinted Court has urge repeal. cize the Amendment and its readiness to infer censorial intent Following legislative history short so statement Senator and to invalidate laws Symms, again Minneapolis Senator Wirth described his Star & Tribune motivated.

810 Minnesota Commissioner Reve- Co. v. III. The Standard 579-80, 103 nue, S.Ct. Constitutional Review (1983) (re-exam- 1368-69, 295 L.Ed.2d 75 News America contends that we Co., ining American Grosjean v. Press 297 should assess the Amendment un 444, 80 (1936)). L.Ed. 660 56 S.Ct. U.S. der daunting the applied standard the by debate’s post-enactment Here the exclusive Court Arkansas Writers’ — Murdoch, coupled Project Ragland, —, focus on clues of U.S. 107 S.Ct. (1987), 95 L.Ed.2d 209 and Min of several heated criticism senators neapolis Star & Tribune Co. v. Minnesota 134 papers, Cong.Rec. Murdoch’s see at S61 Revenue, Commissioner (Senator past his Kennedy disagree- 627, 635, both statutes 53 The S.Ct. 77 L.Ed. 1166 analyzed primarily them First Amend- (1933). The Court has rested this terms, in Arkansas ment but Writers’ lesser protection scarcity on the of broad- expressly overlap it noted the with Project frequencies present cast “in the state of protection 107 equal precepts. S.Ct. commercially acceptable technology” as of (First n. 3 1726 Amendment Claims “obvi- 1969, Lion, 389-90, Red see 395 U.S. at 89 ously arising un- intertwined with interests 1806-07, S.Ct. at recognized and has that Equal Clause”); the der Protection Min- cf technology new may render the doctrine 7, Star, 460 at 585-86 103 neapolis U.S. n. indeed, may already done obsolete— (problem at 1372 n. one S.Ct. 7 viewed as so. v. League Voters, FCC Women 468 “arising directly the under First Amend- 364, 11, 3106, U.S. 376-77 n. 104 S.Ct. ment”). characterized, However two 11, n. (1984). 3115-16 82 278 L.Ed.2d But clearly extraordinary cases reflect concern it has stuck to the doctrine the face of speech for underinclusiveness where recognition, expressing that unwillingness at stake. to reconsider it in the “signal absence The FCC contends that such cases Congress from or the FCC” as to the im- completely inapplicable, and that we must pact of advances in technology. broadcast uphold statutory if it is classification Although the Commission itself has rationally legitimate gov- related to some emphatically scarcity indicted theory, ernmental interest. FCC Brief Report Concerning General Fairness Scrutiny under this view is so that casual Obligations Doctrine Broadcast Licen- validity virtually See, assured. e.g., sees, (1985); 102 F.C.C.2d 143 In re Com- Minnesota v. Clover 449 Creamery, Leaf plaint Syracuse Council, Peace 1 FCC 456, 715, U.S. 101 S.Ct. 66 659 L.Ed.2d (1987), Red speculate 5043 we will not here (1981); U.S. Railroad Retirement Board of any the outcome such reconsidera- Fritz, 166, 453, 449 U.S. 101 66 S.Ct. purposes tion. For of this decision we ac- (1980); Op- 368 L.Ed.2d v. Lee Williamson cept tical, the FCC’s 483, 461, 348 contention broadcast U.S. 75 S.Ct. L.Ed. 99 regulations scrutiny 563 more lenient receive affecting types than speech. ones other Insofar as the Commission claims that broadcast enjoy media do not First But this conclusion does not take us protection Amendment identical with the go. where the FCC would have us The media, print it is plainly correct. Com- invites to read Commission us FCC v. Na pare, e.g., Miami Co. v. Publishing Herald tional Committee Citizens Broadcast for Tornillo, 241, 2831, 418 94 41 U.S. S.Ct. 775, 2096, ing, 436 U.S. 98 56 L.Ed.2d S.Ct. (1974)(requirement 730 L.Ed.2d news- (1978) (“NCCB"), establishing 697 provide papers right reply invalid), rationality minimum standard for “struc FCC, Lion Broadcasting Red Co. v. 395 regulations tural” of the broadcast indus 367, 388, 89 S.Ct. 23 L.Ed. try. rejected that case Court (1969) broadcasters). (opposite 2d 371 challenge very constitutional news also Com- See FCC v. National Citizens paper-broadcast rules Broadcasting, mittee 436 U.S. Murdoch received which 98 S.Ct. 56 697 L.Ed.2d It scarcity concept invoked the waivers. (1978); CBS, Inc. v. 453 U.S. regulations, saying upheld 394-96, 2813, 2829-30, pre “nothing First ... (1981); Sys- Broadcasting Columbia allocating the Commission from li vents] Committee, tem v. Democratic National promote ‘public as to interest’ censes so 412 U.S. S.Ct. of the mass communica diversification (1973); L.Ed.2d 772 National Broadcast- NCCB, U.S. at tions media.” States, ing Co. v. United Moreover, reject the Court S.Ct. at 2114. L.Ed. arguments publishers’ (1943); newspaper ed Federal Radio Commission v. Nel- Co., unconstitutionally Bros. condi- Mortgage regulations son Bond & receipt of a broadcast license media, tioned on than for print “broadcasters are First forfeiture established Amend- engaged in independent a vital and form of publish newspaper. right ment activity. result, communicative As a rules, observed, publishers allowed to First Amendment must inform give own stations communities different TV shape to the manner in which content-based, papers’, were not from their regulatory power exercises its in this promotion aimed at the and were rather area.” Id. at 104 S.Ct. at 3116. The speech. of free than the restriction Id. at upshot was insistence that the restriction 2114-15. 98 S.Ct. at “narrowly be tailored to further a substan- supporting read as We do not NCCB governmental 380,104 tial interest.” Id. at theory. point At FCC’s broad no did the S.Ct. at 3118.14 expressly rely any Court “rational ba- The implicitly Commission contends that single or cite applying sis” standard a case applied the sort of in League review of fact, In that standard. the Court examined Women Voters is limited to “non-structur- reasoning the Commission’s with care. regulations. Clearly al” array pos- one can in generic The rules were substance as well spectrum sible rules on a purely from the form, the Court only as considered (e.g., content-based one “No shall criticize challenge. clearly regarded It facial President”) purely structural manifesting principled rules effort to (e.g., themselves). rules ownership-dispersion require- find a mix of spectrum, prohibition On such a at is- hand, ments, government on the one League sue in would Women Voters of hands-off, other, on the that would maxim- pure content, at some remove from as it speech. ize free Given the assumed neces- “ “editorializing” any forbade of kind sity agency’s ‘choos[ing] among of the ” 366,104 covered stations. 468 U.S. at S.Ct. applicants facilities,’ the same it By token, at 3110. the same wrote, “the Commission has chosen on a purely Amendment is far from structural. basis,’ designed further, ‘sensible one Indeed, form, it is structural in as it contravene, system rather than ‘the of ” applies publisher to a closed class of one expression.’ freedom of 436 U.S. at Supreme broadcaster. The Court in added). (emphasis 98 S.Ct. at 2115-16 League clearly no Women Voters saw of Other cases Court and NCCB, inconsistency suggesting this court echo this In League view. of recognized ambiguities it well in the con- Women Voters Court invalidated a sec- Stone, dichotomy, tent/structure Re- cf. Broadcasting tion of the Public Act that Speech strictions Because its Con- of “editorializing” by forbade of any non-com- Subject-Mat- tent: The Peculiar Case public receiving mercial station public Restrictions, (1978), ter 46 U.ChLL.Rev. 81 Although funds. the Court foreswore in- “ and in any this context steered clear of sistence on ‘compelling’ governmental rigid Thus, categorization. effort at even interest,” it stated that “our decisions have accept if we were to the Commission’s generally applied a First Amend- different analysis NCCB, agree we would not ment regulation standard for broadcast lumped the Amendment should be with the areas,” in than other 468 U.S. at cross-ownership rules accorded added). (emphasis S.Ct. at 3114 More af- high deference firmatively, the the Commission be- Court stated that while the scarcity inherent lieves the latter The electromagnetic received. spectrum larger single allowed for degree party; can affect but a real- governmental regulation of broadcasting spectrum, istic it is far closer to the law 14. See also CBS, Co., casting 453 U.S. at 101 S.Ct. at S.Ct. at 1014 (broadcasters “entitled under the First (government may among applicants not "choose journalistic Amendment to exercise the widest upon political, or the basis of their economic public [duties]”) freedom consistent with its views, upon any capricious social sis"). other ba- (quoting Broadcasting System, Columbia 2090); U.S. at 93 S.Ct. at National Broad- speech rights League in Women invalidated Voters and the ballot access claims regulation minor-party than to the sustained NCCB. Id. at 165. candidates].” FCC, (D.C. See Branch also v. 824 F.2d 37 scrutiny more minimal Insistence on than Cir.1987). past support finds our own decisions. Broadcasting Congress’s Community-Service exclusive single focus on a (D.C.Cir.1978) (en party clearly implicates 593 F.2d 1102 values similar to NCCB,15 banc), a decided soon after case those behind the proscription constitutional equal protection we found a violation of Bills I, Attainder. See U.S.Const. art. clearly safeguards certain “structural” rules of the pluralistic cl. of a § requiring political system FCC—rules non-commercial are often absent when the legislature stations to retain au- educational broadcast in on zeroes a small class of Although recordings statement, dio broadcasts. citizens. Justice Jackson’s con- Judge regula- curring Express Robinson believed Railway Agency v. New York, tions could not withstand even minimal 93 L.Ed. (1949), scrutiny and thus found unnecessary is a classic: forgiving a consider whether less test was knew, The of the framers Constitution appropriate, at four id. members and we forget today, should not that agreed majority the that some form of is no practical guar- there more effective scrutiny appropriate. intermediate against anty arbitrary and unreasonable (opinion Wright); at 1122 of Judge at id. government to require prin- than the that Bazelon). (concurring opinion Judge 1124 ciples of law which officials would im- The court stated that even pose upon minority a imposed must be

... where non generally. content-based distinc- Conversely, nothing opens affecting tions in are drawn a statute arbitrary effectively the door to action so rights, Supreme First Amendment pick as to allow those officials to government Court held in- has that the only they choose a few to whom will terest must served be “substantial” and apply legislation escape po- and thus statutory “narrowly classification tai- might that litical retribution be visited lored” to serve if interest the stat- that larger upon them if numbers were af- protection ute is to equal withstand scru- fected. take Courts can no better mea- tiny. just sure to assure that laws will be than require opera- in equal that laws be added). (emphasis Id. at 1122 tion. recently, More in Johnson v. at Id. at 466-67. See also (D.C.Cir.1987),

F.2d 157 we invoked Minneapolis Star, 460 U.S. at First Amendment on sides of dis both (tax on small pute upholding S.Ct. at that falls rule its FCC’s press equal-time segment political weakens con- provisions triggered not were suppress suggests when straints and motive to political TV stations aired debates information); Judge initiated Grosjean non-broadcast entities. v. American Press Robinson, writing court, Co., noted that S.Ct. (1936) (invalidating “im tax on public both broadcasters and the have 80 L.Ed. 660 portant interests,” newspapers applied only First Amendment at of 163 id. Louisiana). newspapers see also at and that the id. Com Nowhere protections Equal munications Act not of the Protection “reconciles com choices, legislation peting policy more than but also interests Clause critical when singles uniquely constitutional stature in constant out one or a few for disfa- tension [there, with each other broadcasters’ vored treatment.16 NCCB, clearly Group, 16. We 15. The note New court was aware that The York Times although newspaper Judge a and a radio the owner of Supreme Robinson cited the Court’s deci- York, evidently in New see J.A. station by concurring opinion. sion in his See Communi- grandfathering, approved the sub- virtue of ty-Service, F.2d n. at 1132 Hollings an editori- Amendment in stance al, stating Rupert to sell that it Murdoch "forced Thus, go temporary as far as waivers themselves. We need Voters, years or this broadcast licensee with four to run League Women Court in Community-Service purchases newspaper license Broadcast- its who court showing today granted be tem- require would automatic ing, and narrowly porary years, publish- waiver of four and a classification Amendment’s governmental purchasing today substantial er a television station serve a drawn to granted for this could suffices case is interest. What unspecified required despite than “minimum ra- duration the Amend- that more is imposes ment. The Amendment no tionality.” limit aggregate all on the duration of waiver- Applied IV. The Standard (other and-extension combinations than Murdoch’s). Congress readily could have The Amendment strikes prevented temporary “creeping” waivers precision with the of a laser Murdoch permanence forbidding tempo- into all inquire now its beam. We must how well (and Murdoch’s) capping rary corresponds any legitimate public aim limiting aggregate duration of waivers purpose. and their extensions. defends the Commission interpretation odd Thus even intervenors’ legis- Amendment as a “rational exercise of of the word “current” would not save the response perceived authority” lative to a Hollings Amendment from this obvious ob- integrity newspaper- threat jection leaves the Commission free to —it Specifical- rule. television longer issue new waivers far ly, posits “Congress could FCC This a sort of anti- than Murdoch’s. rationally general pro- believed that a public poli- grandfathering; we know of no against temporary hibition the extension of cy party interest in its favor and no to this ensuring waivers is a rational means of proceeding suggests one. applicant temporary that an for a waiver short, every publisher country in the through does not achieve a successive ser- In amounts, effect, to a other than Murdoch can knock on the ies waivers what and seek the exercise of its permanent waiver.” FCC Brief at 30-31. FCC’s door secure, (The by single only reference is to waivers extant on discretion to either a tem- 22, 1987, i.e., Murdoch’s, coupled porary December as the waiver or a waiver extension, covered.) exemption agrees only period a FCC those view, Congress cross-ownership longer restrictions On this omitted future America re- anticipated from the because it than that to which News waivers ban being Congress’s permanent able to enact some solu- stricted as a matter of law. Continuing only the most strained rela- expiration tion before the of the device bears tionship purpose hypothesized Resolution. Commission. purpose, Measured terms of this suggestions perplexed by the astonishingly Amendment underinclu- We are Senate, First, post-enact- sive. the Amendment forbids the floor of the waiver (see America, of the Amendment only extensions to News not to ment discussion 807-809), Murdoch was party might tempo- supra pp. other receive a permanent during seeking unique treatment or a rary waiver and seek an extension clearly proceeding he has year. the fiscal If America sold its waiver. In this News temporary today, sought only an extension of a Boston station to the Boston Globe waiver, atten- no one has directed our temporary the new seek a owner could Second, permanent any application tion to waiver and extension. the Holl- Amendment, ings Prior to the applies only to extensions waiver. nothing unique waivers, granting appears there to have been not to the 1988, A22, Times, newspapers, reinforcing poli- col. N.Y. Jan. two sound federal "Congress: Wrong Right,” cy.” See Even When either the status of Murdoch’s tem- about might get Murdoch extensions. potential porary or of his eligibility circumstances, waivers these we think the Amend- for extensions. It is the Amendment ment’s underinclusiveness fatal. uniquely; appli-

that treats him all other V. Conclusion may apply presumably, cants for—and on a showing, exemption sufficient Congress receive— has denied single publish- longer periods. er/broadcaster the opportunity to ask the FCC to exercise its discretion to extend its imposed We note that the re- apparent waivers. The sole difference solely striction on extensions of be- waivers of publisher/broadcaster tween that newspaper-television rules, and all not of the possible other applicants is an accident of newspaper-radio rules as well. Three tem- timing: its waivers were in porary ef- newspaper-radio fect on December the others currently rules are will outstanding, and all Further, been issued thereafter. three waivers have been pending extended News aggregate America’s periods rulemaking outcome of an pro- FCC are limited to 18 years; months and two ceeding. all See J.A. at 29. other grants future are free of any such already Court has sustained the Commis- time limit. Congress’s motive, Whatever sion’s distinction between radio and tele- the “potential for abuse” of First Amend- purposes vision for aspects of other ment great interests is so NCCB, rules, such restric- see tions, Star, Minneapolis 460 U.S. at 98 S.Ct. at on the basis of cf. 103 S.Ct. at that a bland invoca- greater TV’s much importance as a source Congress’s tion of power conventional of news. This omission alone would thus approach problem step one at a time Amendment, undermine the cannot sustain the Amendment. may rest on well-recognized sound and public policy does, however, concerns. It We vacate the Commission’sorder in this emphasize the narrowness of the Amend- case and remand to the Commission for ment’s focus. consideration petition of News America’s light of the principles standards and that it

Of Congress ordinarily course need not has applied. hitherto As we observed perceived problem address all at once. above, the Supreme See, sustaining Court in e.g., City Dukes, New Orleans v. of against 297, rules First Amend 305, 2513, 427 2517, U.S. 96 S.Ct. 49 ment attack (1976); found that their Hughes v. Alexandria L.Ed.2d 511 “reasonable Scrap ness” was Corp., 794, “underscored” 813, 426 availabili U.S. 96 S.Ct. 2488, ty 2499, of waivers where (1976); the station and news 49 L.Ed.2d 220 Wil- liamson, paper 488, 348 “cannot survive without common U.S. at 75 S.Ct. at 464. ownership.” NCCB, 20, But reject courts 436 U.S. at 802 n. the facile one-bite-at-a- explanation Thus, time 98 S.Ct. at 2115 n. 20. affecting impor- rules whether or tant League process constitutionally First not the waiver Amendment values. of Voters, Women 396, compelled, 468 at First im U.S. 104 S.Ct. Amendment values are (underinclusiveness plicated at 3126 process require basis for even striking Com- editorializing); down ban on handed applicants. treatment of all We do munity-Service Broadcasting, not, course, 593 express any opinion F.2d at of as to 1122; see also Project, Arkansas Writers’ whether News America is entitled to an Star, 1730; Minneapolis 107 S.Ct. at 460 remaining extension of its But waiver. we 592, Moreover, U.S. at 103 1375. help noticing S.Ct. at cannot that removal of the contrary to the legislative assertions of FCC counsel bar on consideration of News argument, oral Murdoch and application place News America’s will leave America “catalysts” were political more than mere pressure “intense ... from Con congressional gress,” Meredith, per- 872, action aimed at a 809 F.2d at ceived evil. “catalyst” gave Here “evil” and ov- rise to the Amendment itself. That erlap completely; must, course, pressure “evil” that the play no role possibility scotched was the agency adjudications involving important

816 rights. Pillsbury legislation constitutional Co. v. and ascertain the extent to Cf. 952, FTC, Cir.1966) (5th F.2d 964-65 354 which the means chosen advance that inter- (adjudicative decision made under intense est.5 We cannot hold a federal statute congressional pressure “sacrifices the ap merely unconstitutional Congress because impartiality” requires pearance better; could have done our role is to deter- vacated). resulting order mine Congress whether did well Vacated and Remanded. enough. adopted The Commission newspaper- ROBINSON, III, W. SPOTTSWOOD broadcast cross-ownership rules6 in 1975.7 dissenting: Judge, Circuit By limiting ownership common of broad- congressional A focus as narrow as that daily cast facilities and newspapers in the by the indicated Amendment1 nat- same community, sought Commission suspicions, urally legal arouses its about promote diversity of program and ser- propriety reviewing and counsels a court to Nonetheless, closely. viewpoints, policy grounded examine under vice primari- our scheme, constitutional the Amendment is ly in the First Amendment.8 Over time the testing entitled even-handed under the position Commission’s on the rule has shift- appropriate.2 standard My review col- ed, and there have been indications that the leagues, purporting subject the Amend- may Commission or outright favor revision scrutiny ment to level of characterized as repeal November, 1987, In rule.9 something more rationality,3 than minimum the Freedom of Expression pe- Foundation believe, however, strike the law down.4 I titioned the rulemaking Commission for that if properly applied, that standard were newspaper-broadcast eliminate the cross- the Amendment would stand. ownership rule, put and the Commission petition public out for comment.10 22, 1987, On evaluating issue, December enactment we enacted must assess the continuing Government’s in a interest appropriating resolution funds (1987). No. Pub.L. 101 Stat. 1329 true This is whether the correct standard is basis, see, e.g., of a existence rational Mathews Lucas, 495, 14, 2755, Dukes, 297, v. 427 U.S. City 508 n. 2. See S.Ct. New Orleans 14, 651, (1976), 2513, 2763 n. (1976); n. 96 S.Ct. 49 L.Ed.2d 511 Daniel v. higher applied League Co., standard in FCC v. 220, Family Sec. Ins. 225 n. Life Voters, Women 104 S.Ct. 553 n. 93 L.Ed. 637 n. 5 (1984). L.Ed.2d (1949); Light Fort Smith & Traction Co. v. Board Improvement, 274 U.S. 73.3555(c) (1987). 6. 47 C.F.R. § (1927); 71 L.Ed. also see Maine Cent. R.R. v. Brotherhood Maintenance Order, Report 7. See Second & 50 F.C.C.2d 1046 WayEmployees, (1st Cir.1987) (leg- F.2d 484 encompasses only islative classification one specific entity necessarily is not irrational or 1048-1049; 8. Id. at see notes 16-19 infra unconstitutional). Administrator, In Nixon v. accompanying text. L.Ed.2d (1977), Supreme the equal Court noted that an fact, 9. In the Commission's in this brief court protection challenge likely would have failed states: although legislation the there addressed could that, say This is not to in the Commission’s person, specifically affect one who was view, continuing newspaper/tele- the ban on underinclusiveness,” named. "[M]ere the Court cross-ownership year vision for another is said, validity “is not fatal to the aof law under Indeed, good necessarily public policy. had equal protection component the of the Fifth otherwise, Congress provided the Com- disadvantages ... if even the law might mission have concluded the an individual or identifiable of members present against newspaper/television rule group.” Id. at 471 n. 2804 n. S.Ct. at cross-ownership should have reviewed to been (citations omitted). 53 L.Ed.2d at 908 n. 33 determine whether it continued to serve the public interest. Majority Opinion (Maj.Op.) 3. 814. 16; Appellee Brief for see note infra. (Nov. 1987). 4. Id. at 815. Rep. Notice No. Public or operation of the Federal Government successive extensions of a temporary for portion waiver, of during year grant fiscal 1988.11 One the Commission could the resolution, Hollings the referred to as equivalent permanent the of a waiver without Amendment, spoke cross-ownership to the any showing heavy justi- that the of burden through proviso rule fying such a waiver had been met.14 The final clause of the Amendment affects a appropriated by that none of the funds class of one because News America may this Act or other Act be used (News Publishing, America), in, appel- Inc. the changes repeal, retroactively apply lant, only entity holding temporary was the begin continue a reexamination or to legisla- waivers on the effective date of the of the rules of the Federal Communica- respect tions Commission with to the tion.15 ownership daily newspaper

common of a grade the and television station where II A contour of the television station en- compasses community the entire in which analyzing congressional In purpose newspaper published, or to extend Amendment, enacting period grants the time current underpin First Amendment considerations temporary compli- achieve waivers to ning rule cannot be ance with such rules.12 ignored. In FCC v. National Citizens (NCCB),16 Broadcasting Committee Amendment reflected the upheld against Court the rule Congress perceived reaction of to what it attack, declaring a facial the First erosion, if not as threatened eradi- “ by achieving Amendment is ‘the served cation, newspaper-broadcast cross- possible widest dissemination of informa ownership rule.13 The case at bar involves antagonistic tion from diverse Amendment, only the last clause of the ” 17 seeking sources.’ to limit grant- “[F]ar which forbids the Commission from information,” the flow of the Court ex temporary extensions of waivers that plained, “the acted ‘to Commission has ... continuing were in effect resolu- when diversity enhance the of information heard passed. recognized tion was through public on-going government possibility distinct indefinite without 11. Pub.L. No. (1987). (1978) ("[a]lthough Congress- [a 101 Stat. 1329 L.Ed.2d dispositive are of course not remarks man’s] reach, they Making Continuing are cer- Appropriations statute’s] the issue of [the Further weight, coming they Ending tainly do September' entitled to for the Fiscal Year Furthermore, provision’s sponsor”). H.R.Rep. Cong., No. 1st from the 100th Sess. 34 (1987) legislative added). comport (emphasis statements with the these posited by purpose the Commission. See Brief 13. See 134 Appellee Cong.Rec. at 30-31. (daily S63 ed. Jan. 1988) (statement Hollings) (proviso of Sen. 14. See note 13 Appellee supra; see also Brief for serves to ensure will not be evaded that the rule Commission, According waivers); "it grants at 30-31. successive showing perma- (statement that a Kennedy) (proviso clear that the burden at S59 of Sen. extremely high— is warranted is designed preserve cross-ownership nent waiver rule tempo- considerably higher than that for a against attempts exemption and rary permanent to obtain 27; waivers). see Health & Medicine guise waiver." Id. at in identifying series U.S.App.D.C. Policy Group underlying purpose Research Amendment, 1042-1043 807 F.2d the statements of Senator Holl- Amendment, ings, sponsor and Senator 15. See Brief for it, Appellee at 13. Kennedy, provided primary impetus who given weight, particularly must be ab- in the 16. 436 U.S. 775, 2096, history. 56 L.Ed.2d 697 complete legislative 98 S.Ct. sence of a more See, States, 55, 63, e.g., Lewis v. United 445 U.S. 915, 919, 198, 100 S.Ct. 63 L.Ed.2d 207-208 2114, 17. Id. at 799, (1980) ("[¡Inasmuch at 716 Long S.Ct. at as was the 98 Senator States, bill, 326 sponsor manager (quoting v. United and Associated Press floor of the his state- 1424-1425, 20, 1416, 1, L.Ed. weight”); 89 Simpson ments are U.S. 2013, entitled to v. Unit- States, (1945)). ed 55 2030

818 18 speech’ of the content of explored,

surveillance Finance among things, other the policy cross-ownership rule thus “de- Commission’s of waivers those rules.20 The further, Subcommittee’s effort contravene, rather than to signed to ” 19 rigor ascertain with which the Commis- expression.’ system of freedom ‘the sion applications would evaluate therefor Congress’s purpose Consequently, when in response by drew a the Commission’s chair- Hollings Amendment is as- enacting the man “compelling that case” would sessed, acknowledged pres- be that it must justify 1985, a waiver.21 In November rule ervation of will however, the Subcommittee found neces- promote First Amendment values. And it sary to admonish the Commission’s chair- saying that goes this factor without adds up man to live representations to his earlier weight governmental in- substantial by tightening the for granting standards legislation. in terest this temporary waivers.22 The Subcommittee Furthermore, congressional endeavor reemphasized position: you its “As are well integrity over time maintain the to aware, firmly we that believe the cross- intense, cross-ownership rules has been ownership vitally rules are important in has been its concern about abuse of the protecting competition diversity and Hearings 1985, process. July, waiver in marketplace of ideas and that waivers to the House before Subcommittee on Tele- those rules be should as an extraor- viewed communications, dinary, Consumer Protection and ordinary, not an action.”23 16, 801-802, NCCB,supra at 18. note 98 MR. It to WIRTH. seems me that there is 2115, (quoting S.Ct. at 56 L.Ed.2d at important 718 Nation an consideration here in terms of Broadcasting again al Comm. you Citizens the standards and criteria that (1977)). U.S.App.D.C. F.2d using my on this front. it is And concern— you and and I have talked about this in the NCCB, supra at note S.Ct. underline, underscore, past we and em- —that (quoting at 56 L.Ed.2d at 719 T. phasize people importance to of concen- Emerson, System Expression Freedom cross-ownership, tration and which is the (1970)). premises One of the deci- getting thrust of what amI at. And I would regulation sion in NCCB was that broadcast is all, this, hope you looking make justified by part spectrum scarcity. at least in very applicants to clear our mutual con- 436 U.S. at S.Ct. L.Ed.2d at and cern about this is fact this not Although 716-717. this rationale has criti- been something go going away. that is It is not changes cized because of gy, television technolo- going disappear may, as some think it and Court has refused abandon it concern, important is that this and be as guidance absent or the Commis- strong possible. and clear about that as Voters, League supra sion. FCC v. Women totally agree, MR. FOWLER. We Mr. note 468 U.S. at 376-377 n. 104 S.Ct. at Chairman. 3115 n. 82 L.Ed.2d at 289 n. 11. Mergers 20. Media and Takeovers: the FCC and Representatives, 22. Letter from House of Sub- Interest, Hearings the Public the Sub- Before Telecommunications, committee on Consumer Telecommunications, comm. on Consumer Pro- Protection Finance of Committee on Comm, tection and Finance the House Commerce, (Nov. Energy and to Mark S. Fowler Commerce, Energy Cong., 99th 1st Sess. 13, 1985), reprinted Cong.Rec. (daily in 134 S65 (1985), reprinted part Cong.Rec. in 134 S65 26, 1988). ed. Jan. 26, 1988). (daily ed. Jan. 21. MR. FOWLER. I think or policy goals generally, though, of one, ers in similar circumstances. not to would rule cult to ^[******] liberally granting shown which two, I think it is and would grant justify either not disserve rule once waivers unless a having that it would serve the you very serve demonstrates having however, against do waivers for two poor granted other that, administrative generally grant I think it is diffi- important compelling purpose waiver. other waiv- we reasons: purpose public policy ought law; case am waivers are derly” ly, granted. tress sales would result if mission’s tions tions that tion that disposed to seek Id. The Subcommittee's letter further stated: While cases where clear more than an exist, fashion. temporary they of in what has been termed an "or- apparent possible we are justified Clearly, routinely, if very open financial waivers with an attitude that solely upon public policy disturbed invitation for this attitude property may not automatical- hardship mere be cannot be justifica- justified expecta- parties allega- noth- Com- dis- subject again granted was year, should Later that be limited in duration to addressed, in the time Conference Re- minimum amount this time neces- continuing sary.24 funding resolution on the port for operations year fiscal

governmental Congress thus had a well documented 1986: preserving interest the cross-ownership concerned The conferees are with Com- ensuring rules and in appropriately limited of the local mission enforcement cross- process. when, use of the waiver But ownership particularly light rules 1987, Congress the close of up took requests the number of recent waiver continuing year resolution for fiscal these rules the Commission has con- interest was Pending threatened. purpose sidered. Commission’s petition the Commission was a for rulemak- granting any waiver to the cross-owner- seeking repeal revision or of the rule. ship public rules should be to further the There evidence was that the Commission no interest; private longer supported of the inter- the rule.25 There furtherance too, ground, any applicant apprehension est of or licensee must be purpose. grant Commission would unjustifiably subservient to this America, waiver extension to thereby News expect The conferees the Commission circumventing the rule.26 requests great such scru- to review tiny grant and not a waiver unless the Ill applicant clearly meets the burden demonstrating why Congress such a waiver should Hollings enacted the Amend- granted. Any temporary waiver ment to forestall evisceration of the cross- ****** edging just ones who have been to not another By your previous permanent repeal.” own words subcom- [in waiver but Id. at S57. testimony], applicant mittee who seeks a carry waiver must the burden of petition 26.News America’s for an extension of presenting compelling case which demon- primarily pendency its waiver rested justify strates all of the facts that would such petition rulemaking for new on cross-owner- waiver, case, they if do not make that "[a]nd ship. Publishing, See Petition of News America they granted any will not be kind of a waiv- Waiver, Incorporated, for Extension of Joint er.” Appendix requested A 1. News America an ex- thing regulatory agency It is one for a cre- expiration tension until the of six months fol- by Congress disagree ated with the Con- lowing petition. the Commission’s action gress policy, you over the direction of repeal Hollings Id. The debate over previous done on a number of occasions. It Congress may Amendment reveals that have be- quite you is another for to come before the lieved that the Commission was inclined to treat Congressional responsible committee favorably appli- News America more than other overseeing your agency and make commit- cants. Senator noted a statement you your ments as to how will exercise re- outgoing made chairman of the Commis- sponsibility under the Communications Act greatest gift party: sion at his retirement "The give up and then not to those commit- [sic] anybody gave to as Chairman of the FCC was an spirit. ments either in letter or Rupert 18-month waiver to Murdoch.” 26, 1988). Cong.Rec. (daily S58 ed. Jan. Senator commented, everybody clapped “and H.R.Rep. Cong., No. 99th 1st Sess. 433 ‘Whoopee.’ way and said That we (1985), reprinted Cong.Rec. (daily in 134 S57 ed. doing carry downtown at business—cash and 26, 1988). Jan. Commission.” Id. the Federal Communications Kennedy stated that "Mr. Murdoch is Senator supra accompanying 25. See note 9 and text. powerful publishers one of the most world, Hollings’ Senator statements on the floor of using powers and he has been those Congress apprehension regarding indicate ignore Congress, the will of subvert the position Commission’s on the rule. It “has been cross-ownershaip said, rule.” Id. at there," and evade open getting season over he “in rid Kennedy declared that "we have S59. Senator nearly any regulation." kind of rule and way skeptical about 1988). also learned the to be Cong.Rec. (daily hard ed. Jan. S56 Re- willing up FCC to stand to him garding deregulatory whether the tendencies of the Com- mission, have, applies apply the same rules to him that it the Senator stated that "we time else,” S60, again, everyone ”[t]he id. at and that set forth admonitions and the FCC lock, stock, exactly agency captured and bar- opposite." has in turn had been done Id. "I Murdoch, trying long past runaway by Rupert am it was to catch a Commu- rel Federal in," They step nications id. at S61. Commission. have been the time for ownership purpose, rule. To effect this my colleagues’ with statement this chosen, among others, means case one of the “is far closer to the law invalidated in League from extending was to bar the Commission Women regu- Voters than to the of lation sustained in of extant League the duration waivers. NCCB.”29 of Women Voters challenge featured a My colleagues do characterize the con- to Sec- tion 399 of the Broadcasting Public gressional inappropriate or Act of goal as insub- 1967,30 any which forbade stantial, they Rather, noncommercial should not. as well receiving grant educational station because, Amendment they they fault the Corporation Broadcasting Public claim, only method used “bears “engage in editorializing.”31 The Court relationship” most strained to the asserted emphasized, determining in proper purpose.27 review, standard of plain- that “Section 399 agree. I If am unable to the aim is to ly operates to expression restrict of preserve cross-ownership rule, opinion editorial public matters of im- rule, endanger waiver extensions then portance, and, as we repeatedly have ex- prohibition on extensions of waivers—al- plained, communication this kind is of beit current ones—does pur- serve the entitled to the exacting degree most pose. being “strained,” Far from the rela- First protection.”32 Be- tionship between means and end is decided- League cause .Women Voters arose in ly strong. any There cannot be doubt that context, the broadcast where “strict scruti- purpose fit between method this ny” inappropriate,33 review is the Court case is more enough than close to satisfy a required legislation “narrowly to be test of rationality. question minimum The tailored to governmen- serve a substantial then becomes whether the means-end rela- tal interest.”34 The case signifi- at bar is tionship is satisfy slightly sufficient to cantly distinct. has blocked higher standard of applicable review here— News America’s access to the Commission something more than minimum rationality. only for the purpose requesting an ex- agree my colleagues ascer- tension of the it presently enjoys. taining the apply, standard of review to That is cry a far from the content-focused go “we need not far as the restriction involved in League Women Court in League Voters, FCC v. Women particular Vot- which type outlawed view, My however, ers." does highly not accord speech.35 valued League The Maj.Op. 27. any at 814. public importance which cussed," issue of is dis- provide copy upon request and to 814; League 28. Id. at see FCC v. Women public. member of the Commission or the Voters, 5, 380, supra note 468 U.S. at 104 S.Ct. at 93-84, See Pub.L. No. § 87 Stat. 219 3118, 82 L.Ed.2d at 292. We deemed this command an obstacle to free First, expression. neutral, it was not on its face content Maj.Op. 29. at 812-813. U.S.App.D.C. 593 F.2d at 1111; indeed, regulated only the fact that it (1982 1985). 30. Supp.III 47 U.S.C. §§ 390-399 & programming concerning public issues of im- 31. portance §Id. 399. government purpose indicated "a in- tentionally impermissibly to restrict free 32. 468 U.S. at 104 S.Ct. at content," speech on the basis of its id. at added). (emphasis L.Ed.2d at 289 Additionally, 593 F.2d at 1112. we found that legislative history supported the conclusion 33. Id. at 104 S.Ct. at 82 L.Ed.2d at purpose recording requirement “that the 289. suppression expression was related to of free public importance.” Judge issues of Id. As 34. Id. at 104 S.Ct. at 82 L.Ed.2d at concurring opinion, Bazelon noted in his upon’ statute "not ‘touches fundamental freedoms, Similarly, I believe we are at some distance First Amendment but so does clas- Community-Service explicitly from the scenario in casting, Broad- sifications formulated in terms of the U.S.App.D.C. speech.” Inc. v. content of 593 F.2d at 1124. (en Therefore, 1978). provision heightened scrutiny may F.2d 1102 banc there while controversy required appropriate Community-Service, all noncommercial edu- been the re- receiving funding presented cational stations federal striction in the case before us is unac- recordings companied by any make audio of all broadcasts "in similar need that stan- Although of review is unsui- true, standard is literally Women Voters prac- as a ignores table here. tical matter reality. past, In the initial by waivers bestowed the Commission ap- it Despite a claim to the contrary,36 ranged eighteen have months to three have, my colleagues pears to me that requests and no for initial waivers essence, equivalent to that used a standard years,40 are now consequently, any applied League Women Voters. pending;41 hypothetical extension request long is a inappropriate solely to focus think it way only off. Not do these “future” waiv- Congress conceivably alternatives present ers threat, no immediate but Con- analyze could have chosen rather than gress anticipate is free to permanent Congress adequacy actually of what did. they solution before ever would.42 To be simply judges Our task as to look for sure, Congress could brought have future something more than a rational relation- purview waivers within the of the Amend- ship purpose between the Government’s ment, say but that is not to that its failure employed and the means to achieve it. If to do so renders this enactment unconstitu- substantially the method is related Rather, Congress tional. may deal with higher Government’s interest —a somewhat immediate threats as they inquiry level of than mere rational relation- arise.43 ship legislation should survive. A —the Second, my colleagues find the Amend- relationship substantial does exist in this ment underinclusive “applies because it case, an majority’s examination of the only waivers, of temporary extensions objections to the Amendment granting not to the of temporary waivers makes that clear. Put another way, theo- themselves.”44 retically temporary an unextended IV longer could endure temporary than a

My colleagues hold the un- waiver that has been argu- extended. This they constitutional because find it underin- ment strikes me as even more curious than First, respects. clusive in they suggestion two fault Congress first. The is that proscribes grants the enactment because could either temporary have forbidden all America, of waiver extensions to aggregate News the waivers or limited the duration only holder of “current” plus but of waivers That reason- extensions.45 waivers,37 me, “not to party might ing, other point, receive it seems to misses the for it temporary length waiver and seek an extension is not the of the waiver alone that during words, Rather, In other subverts the rule. fiscal year.”38 larger problem potential News America sold its Boston station is the conver- “[i]f today, something temporary Boston Globe the new owner sion of into some- meeting higher could seek a thing perpetual waiver and exten- without sion,” permanent whereas News America could standards not.39 waivers.46 814; Maj.Op. Appellee dard of review. There is no content discrimina- 42. See Brief for Congress attempt by tion here. There is 34-35. compliance to force with a structural rule it great importance. Accordingly, considers of E.g., Hughes Corp., Scrap v. Alexandria 43. equating there is no 794, 813, 2488, 2499, basis for this case with U.S. 220, 96 S.Ct. Community-Service. (1976); Morgan. Katzenbach 1717, 1727, L.Ed.2d Maj.Op. (1966); 36. at 813-814. Optical, Williamson v. Lee 563, 573 99 L.Ed. 37. See id. at 805. added). (emphasis Maj.Op. 38. Id. at 814 at 814. 44.

39. Id. Furthermore, Appellee any single 40. Brief for at 34 n. 19. supra. 46. See note 14 nature, duration, by its will not waiver of fixed indefinitely. Surely Id. at it would be difficult 32 n. 16. extend likely

A on all Because of unique ban News America’s sta- tus as the problems waiver, holder of a more than it would current raise would only entity it was the affected the Holl- and, importantly, it would not more solve ings Amendment. There is no content dis- kind of circumvention address And, crimination here.49 although it may Congress was concerned. rule with which easy hypothesize other means Moreover, the necessity of a waiv- because which could sought length appropriate vary will er and objectives, achieve its the existence of al- case, ceiling aggre- from case to ternatives does necessarily render the gate plus of waivers duration extensions chosen method unconstitutional. When the prudent may not have been alternative. standard of applied review to be is strict provide are Temporary waivers intended to scrutiny, courts tendency, appropri- have a opportunity orderly for a reasonable dives- cases, in ate such to define the Govern- newspaper titure of the or the broadcast very precisely ment’s interest and narrow- property.47 Congress logically could con- ly. countervailing Because the interest specified clude that one waiver duration of such importance, expect extreme courts goal,48 would be sufficient to achieve that compelling exactitude justification and that extensions of waivers could under- legislature, give any it little if purpose, example, by giving mine that for benefit of the purport- doubt. But the test postpone owners an incentive or avoid edly applied in this case is not even an in eligible divestiture order to become review; “intermediate” standard of it sim- original an extension when the waiver ex- ply something more than minimum ra- pired. tionality. Courts must take care to ensure good missioner, 575, 579-580, grant 1365, for the Commission in faith to 103 S.Ct. “temporary” 1368-1369, 295, (1983). duration that could 75 L.Ed.2d See permanent. (“[tjhe be considered Maj.Op. Supreme at 809 Court has re- cently hinted at a readiness to infer censorial See, e.g., Policy Health & Medicine Research legislative history intent from and to invalidate Group supra U.S.App.D.C. note at motivated”). First, equivocal laws so the few 127-128, 1042-1043; Report 807 F.2d at Second pulled legisaltive statements from the debates to Order, supra & note support proposition sorely inadequate this support improper purpose an inference of in adopted, 48. At the time the rules were the Com- case, appropri- this to the extent that such is an stated, contemplate perma- mission "we do not judicial inquiry. reading ate A fair of the Con- waiverfs], problems disposing nent gressional fully supports interpreta- Record expected these interests would not be to endure objective tion that this Amendment’s was to Order, indefinitely.” Report supra Second <& preserve Congress highly, a rule that valued note at 1084 n. 46. speech. quite Grosjean, to censor This is unlike where a United States Senator and the Governor my colleagues acknowledge, lengthy 49. As their of Louisiana had distributed a circular to all suggested repeal recitation of the debate legislature, describing members of the state merely Amendment serves ‘"lying newspapers’ conducting as ‘a vicious meaning statutory discern the intended campaign’ lying, and the tax as 'a tax on a2e language. Maj.Op. at 810 & n. 12. discus- That ” Minneapolis lie.’ missioner, Star & Tribune Co. v. Com- gives imputing improper sion no basis for 460 U.S. at 103 S.Ct. at fact, Congress; quite motive to it does comparable 75 L.Ed.2d at 301. There is no opposite. during There is no evidence the de- purpose evidence of illicit in this case. In addi- Congress endeavoring views, bate that was to censor tion, the Court has stressed the hazards of bas- distinguished Murdoch because of his finding unconstitutionality legisla- approach from his tactical to an extension. See, Rather, assertedly unseemly. tive motive that is merely trying was to ensure O’Brien, e.g., compliance prized highly, United States v. 382- per- with a rule it fectly legitimate motive and concern. The sole question Accordingly, 683-685 I would be ex- for decision is whether the means Con- hesitant, gress tremely used to that concern falls within on the basis of the Court's address Star, parameters. single Minneapolis constitutional to read statement law, particular- Furthermore, this doctrine into constitutional majority’s I take issue with the ly light majority’s acknowledgement characterization of the Court’s reexam- Co., Grosjean is dicta and that its discussion of the matter ination of v. American Press (1936), in this See irrelevant to the decision case. 80 L.Ed. 660 as set Minneapolis Maj.Op. forth in & n. 12. Star & Tribune Co. v. Com- 809-810 engage in strict in effect they do not applica- scrutiny when intermediate less.50 demands of review ble standard

V view, Congress pursued wholly my protect it acted to

legitimate purpose when cross-ownership rule from circumven- Because of the First

tion or erosion. foundation that underlies the

rule, congressional action at issue here designed promote constitutional val-

was By forbidding the Commission from

ues. grants

extending current

waivers, Congress selected a method that related adequately more than sought Because I

purpose it to achieve. constitu- this enactment withstands

believe dissent. scrutiny, respectfully

tional al., SARAVIA, Appellees, et

Esther STREET, N.W.,

1736 18TH LIMITED

PARTNERSHIP, Appellant.

No. 87-7114. Appeals,

United States Court Circuit.

District of Columbia

Argued Feb. April Decided D.C., Musolino, Washington, Philip M. appellant.

for D.C., Allen, Washington, ap- Edward Frank, Saravia, Sally et al. Wash- pellees, appearance ington, D.C. also entered Saravia, appellees, et al. Deputy Prager, Asst.

Lutz Alexander Counsel, Frederick D. whom Corp. Counsel, Jr., L. Reis- Cooke, Corp. Charles Counsel, L. chel, Corp. and Julia Deputy D.C., Asst., were Washington, Sayles, Trial Nonetheless, give they rule colleagues Maj.Op. my at 815. are indications that 50. There cases, all of recog- of four example, they shrift on the basis just short done For this. higher than that ordinarily review "Congress which use a standard of need not nize the rule that applicable this case. problem conceded to be perceived all at once." address a notes (1983). S.Ct. 75 L.Ed.2d 295 In board); editorial ment with Herald’s id. at Star, Minneapolis the imposed state (Senator that S67 Wirth states measure has “use purchases tax” on of ink paper politics the “nothing to do with of Massa- exempted $100,000 worth, but the first cartoons”); editorial chusetts ... id. at [or] thus restricting the tax to a handful (Senator S143 Weicker notes Post’s criti- large newspapers. In Arkansas Writers’ 35, 41, 43, 46, him); cism of J.A. at Project, the state collected a on sales tax (journalistic past references Herald’s general magazines, exempted interest but Kennedy), might sup- criticism of Senator religious, professional, trade, sports port view of such inferences.12 our con- journals. In both cases the Court held that clusion that the Amendment is unconstitu- exemptions rendered the taxes invalid. (see tional without concern motivation Star, In Minneapolis the Court said: however, part IV, infra), pass we over legislature Whatever the motive of the petitioner’s purpose. claims illicit case, in this think recognizing we that power in single the State not out congressional motives, Whatever the press also to so but tailor the tax post-enactment single reveals debate but a singles that it out a few members of Rupert focus: whether Murdoch and News press presents potential such a for abuse America should be denied the opportunity suggested that no interest Minnesota to seek an extension of his temporary waiv- can justify the scheme.... whole, ers. Taken as that discussion We and do impugn need not nothing does to undermine what we learn motives of Legislature the Minnesota (cou- language passing paper ink A tax tax.... pled with the fact Murdoch's were the singles press, targets out or that only temporary waivers “current” on De- publications press, individual within the 22,1987): sought simply cember the clause places heavy burden on the State to prevent any of those extension waivers. justify its action. below, develop closing As we will 460 U.S. at 103 S.Ct. at 1375-76. words of the Amendment could Similarly, in Project, Arkansas Writers’ not withstand more than “minimum ration- the Court justify said that “to such differ- ality” scrutiny if even construed as inter- taxation, ential State must show propose. venors But constitutional dis- regulation necessary its com- serve a proceed cussion should a realistic basis: pelling narrowly state interest and is impinges class,13 the clause a closed drawn to achieve that end.” 107 S.Ct. consisting exclusively Murdoch. 1728. legislators’ Any judicial (1987); Jaffree, use of remarks for Wallace v. L.Ed.2d 38, 56-57, imputing leg 2479, 2490-91, motive unconstitutional (as majority opposed merely inferring islative imputation We no such make here. meaning ambiguous legislation) the intended troubling questions, Ely, Legislative raises see he., Murdoch is not the sole current and Administrative Motivation in Constitutional class, party member of the but is the sole Law, (1970), 79 Yale L.J. 1324-34 can ever be a member. imputations but such occur. See Edwards v. — U.S. —, Aguillard, down, Court, striking

Case Details

Case Name: News America Publishing, Inc. v. Federal Communications Commission, the Committee for Media Diversity, Wilbert A. Tatum, Intervenors

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

Date Published: Mar 29, 1988

Citation: 844 F.2d 800

Docket Number: 88-1037

Court Abbreviation: D.C. Cir.